p. 155When did Americans adopt the language of “choice” and “right to life”?

During the late 1960s and early 1970s, advocates of legal abortion used the term “rights,” much more frequently than “choice,” to refer to what they were trying to achieve. However, choice still had a place in this early discourse. For example, the National Abortion Rights Action League’s first national action in 1969—a Mother’s Day demonstration held in conjunction with press conferences in eleven cities—was called “Children by Choice.” Others referred prominently to Roe v. Wade as “a great day for freedom of choice.” But in the years before Roe, most activists explained that the right to decide whether or not to stay pregnant was indivisible from the right to self-determination.

The transition to choice came from several sources. First, Justice Blackmun referred to abortion as “this choice” a number of times in his Roe v. Wade majority ruling, terminology that acknowledged, in part, the impact of the women’s movement. The language of choice centered reproductive experiences in the domain of women’s bodies, and validated women’s needs to respond to their reproductive capacities within the context of their whole lives. Also, abortion rights activists were determined to develop a respectable, nonconfrontational movement after Roe v. Wade. Many proponents wanted to adopt p. 156↵the term choice because they realized that some people in the United States were weary of—or hostile to—rights claims after the civil rights movement. Many people believed that choice, a term that evoked women as individuals, not as an activist mass—even as women shoppers selecting among options in the marketplace—would offer a kind of “rights lite,” a less threatening package than unadulterated reproductive rights.

Anti-abortion groups selected the affirming, fetus-focused term right to life to oppose the individualist, consumerist, and women-centered term “choice.” “Right to life” directly addressed the rights-claiming culture of the era and is usually understood as ascribing human status and human rights to the zygote from the moment of conception. The language drew in part on the Declaration of Independence, which weaves together religion, patriotism, justice, and an eighteenth-century white masculine vision of human rights when it states, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Two decades after Roe v. Wade, Pope John Paul II invoked “the culture of life” to denounce abortion and euthanasia, exemplars of “the culture of death.”

Critics of “right to life” language have pointed out that many people with anti-abortion views are in favor of the death penalty, oppose universal access to health care, and oppose public assistance for poor mothers and children, all of which can lead to deaths preventable by laws and public policies that value life above all.

Historically the term “rights” has been used to refer to privileges or benefits to which a person is justly entitled and that can be exercised without access to any special resources, such as money. In the United States, some groups have had to mount long campaigns to demand access to rights that other groups, usually white men, could exercise because of their demographic characteristics. For example, women and African Americans in the United States struggled for and won voting rights, p. 157↵that is, the right of all citizens over a certain age to vote, even if they have no money, no property, and no other resources.

By contrast, choice has come to be intimately connected to the possession of resources. Many Americans believe that women who exercise choice are supposed to be legitimate consumers possessing money, even when the choices they exercise, such as the choice to become a mother or the choice to end a pregnancy, might be considered a very fundamental issue of rights. In the 1980s and 1990s, anti-welfare politicians, for example, concentrated on portraying poor women who had children as bad choice makers, as women who had no business having babies.

Choice has come to connote the privilege to exercise discrimination in the marketplace among several options, if one has the wherewithal to enter the marketplace to begin with. As a consequence, and during a period when babies—and pregnancy itself—have become ever-more commodified, women with financial resources have been defined as having a legitimate relationship to babies and motherhood status, while poorer women have been defined as illegitimate consumers with no right to choose motherhood. These distinctions emerged quickly in the post-rights era of choice, and eclipsed the connection of women’s reproductive autonomy to rights, which undermined the possibility that all women would be equally empowered by reproductive choice. Dividing women into good and bad choice makers gave cultural and political strength to the idea that reproductive options, including motherhood, should be a class privilege reserved for the good choice makers because they can afford the choices they make.

Do various groups of women interpret their needs regarding fertility and reproduction uniquely and if so, why does this matter?

Since the 1960s, mainstream reproductive choice organizations have spent the majority of their time and resources trying to p. 158↵build legislative, judicial, and popular support for the right of girls and women to use contraceptives, obtain abortions, and achieve widespread access to these tools of reproductive choice. In the early years of these efforts, a number of women of color organizations realized they had to focus their work more broadly. For example, many middle-class white activists, resisting their physicians’ control, argued in the 1960s and 1970s that the right to choose sterilization was an important component of reproductive autonomy and that women ought to be free to undergo the procedure without waiting periods or other physician-imposed tests. Simultaneously, the National Black Feminist Organization, the Committee to End Sterilization Abuse, and other organizations built their efforts around advocating for waiting periods, along with informed consent rules, and other protections for women of color who had historically been targets of coercive reproductive practices including forced sterilization programs.

In the generation after Roe v. Wade, middle-class women and the organizations they supported claimed women’s rights to use any contraceptive they chose, and pursued legal actions against drug companies to hold them to account for the safety of their contraceptive products. At the same time, women of color organizations focused on building opposition to the Hyde Amendment that forbade the use of Medicaid funds for abortion. They also constructed campaigns to oppose health- and court-ordered mandates deploying Depo-Provera and other long-acting, reversible contraceptives to constrain the “undesirable” reproductive activity of young women of color and women eligible for public assistance who, according to politicians and others, were producing too many children. In addition, in the 1980s, 1990s, and into this century, organizations and individuals representing the interests of poor women and women of color conducted campaigns to claim the reproductive health and dignity of these groups by developing access to comprehensive reproductive health care and protection from hazardous, low-wage employment and from p. 159↵exposure to environmental toxins, as well as protection from human trafficking.

Historically, mainstream organizations largely founded and run by white, middle-class women concentrated on basic and essential, if narrowly defined, needs of all women. For some decades, these high-profile organizations tended to neglect or make secondary their efforts to support the broader requirements of women whose reproductive health, safety, and even their right to be mothers were threatened and constrained by a society that didn’t value all women and children equally. Consequently, the task of building an inclusive movement and legal structures that recognize and work for the rights of all women to manage their own reproductive capacity and to be mothers or not has been a difficult undertaking. Even today, the political culture in the United States supports the reproductive rights of women who have abundant resources far more than it supports the rights of women with few resources.

However, mainstream organizations have become more attentive than in the past to building campaigns that attend to the reproductive needs of all women. In addition, there are many political organizations that work specifically to secure the reproductive health, safety, and dignity of women whose access to such protections has historically been marginalized. These include the National Women’s Health Network, the National Network of Abortion Funds, Black Women for Reproductive Justice, Asian Communities for Reproductive Justice, the National Latina Institute for Reproductive Health, the National Asian Pacific American Women’s Forum, the Civil Liberties and Public Policy Program at Hampshire College, and the National Advocates for Pregnant Women.

What is “reproductive justice”?

Led by women of color organizations, particularly Sister­Song, an umbrella organization founded in the 1990s by p. 160↵Loretta Ross, the reproductive justice movement regards women’s right to reproduce as a foundational human right. Reproductive justice claims that a woman has the right to be recognized as a legitimate reproducer regardless of race, religion, sexual orientation, economic status, age, immigration status, citizenship status, disability status, and status as an incarcerated woman. The agenda of the reproductive justice movement makes three broad claims:

First, that women have the right to manage their reproductive capacity, including

Second, that women have the right to adequate information, resources, services and personal safety while pregnant, including

Finally, a woman has the right to be the parent of her child, which includes

p. 162What contemporary, contested frameworks are structuring reproductive politics today?

The growing coalition in support of reproductive justice faces a political culture that is bitterly split regarding reproductive politics. Like Medicaid in 1965 and Roe v. Wade in 1973, the national health care project has become an arena for sharpening debates about the federal government’s role in facilitating women’s ability to control their fertility. We’ve seen that an anti-abortion amendment nearly derailed congressional approval for the Affordable Care Act of 2010. Later as struggles over the political feasibility of a national health care system continued, contraception replaced abortion at the crux of conflict.

In January 2012 President Obama announced that most health insurance plans must cover contraception for women free of charge, a rule that twenty-eight states had already adopted. The president’s directive reflected the intent of the 2010 act which says that insurers must cover “preventative health services,” in this case all FDA-approved contraceptives, emergency contraception, and sterilization, and cannot charge for them—no copays, no deductibles.

After fierce objections from Catholic-affiliated institutions such as universities, hospitals, and social service agencies, the Obama administration promised that students and employees, many not Catholic, who received health insurance through Catholic institutions, would have access to contraceptives while accommodating the religious liberty interests of those institutions. In practical terms, the government proposed that the Catholic institutions would not have to pay for or provide contraception; rather, it would be provided directly from the insurance or pharmaceutical company, for free. The proposed compromise applied to insurance plans that are underwritten by private insurers such as Blue Cross/Blue Shield and did not seem to account for the fact that many of the Catholic institutions in question serve as their own insurers, providing health care coverage directly to employees and paying p. 163↵claims themselves, often a more economical option for large organizations.

The US Conference of Catholic Bishops, vowing to protect the “conscience rights” of institutions and individuals and to defend the very essence of religious liberty in this country, objected to President Obama’s directive as forcing the Church to act against its teachings. Also, the bishops objected to the situation they called “an unwarranted government definition of religion,” with government deciding which institutions are religious employers deserving exemption from the law.¹ In May 2012, forty-three Roman Catholic dioceses, schools, and social service agencies and other institutions filed lawsuits in twelve federal courts challenging the directive that students and employees at Catholic institutions must have insured access to contraception. By this point, many conservative evangelical groups had joined with the Roman Catholic bishops and others, claiming that by its directive regarding contraception, the government had declared war on religion.

Participants in this debate rarely noted that all Americans, religious or not, have contributed to taxpayer-funded contraceptive services for many years; in 2010 public expenditures for family planning services totaled $2.37 billion. More than 17 million women—nearly half of all women who needed these services—qualified for publicly funded services and supplies because they had incomes below 250 percent of the federal poverty level or they were younger than twenty.²

As of summer 2012, a majority of Catholics did not believe that the right to religious liberty was threatened by the directive on contraception. In addition, a majority of Catholics believed that employers should be required to provide their employees with health plans that cover contraception at no cost. White Catholics are, however, more divided on these questions than others.³ Meanwhile, as we’ve seen, among all women who have had heterosexual sex, 99 percent have ever used a contraceptive method other than natural family planning. This figure is virtually the same among Catholic women (98 percent).⁴

p. 164↵Arguably, American attitudes and behavior regarding contraception suggest that the majority believe in the right of government to set up rules for the common good. Further, a majority of Americans seem to agree that, as a professor of philosophy at Notre Dame University put it, “not every effort of the government to restrict religious rights should be rejected on the grounds that it is a step toward the total undermining of religion.”⁵ Finally, women’s behavior reflects a broad consensus that contraception is a necessary component of women’s health care needs. Nevertheless, the debate is fierce and still raging: is the contraception directive a massive assault on religious liberty or a basic building block of a comprehensive health care package for women? This question and others that I’ve highlighted throughout this book remain unresolved and may stay that way into the foreseeable future.