Her Body, Our Laws

by Michelle Oberman

  In El Salvador, having a child at age fourteen isn’t simply a cause for shame in the eyes of a religious community. It also increases the odds of a life lived in crushing poverty, of marginal education and employment, of vulnerability to the violence and chaos that scores the lives of the poorest Salvadorans.

  Some girls, faced with that prospect, opt to kill themselves. Government statistics reveal that three out of eight maternal deaths in El Salvador are the result of suicide among pregnant girls under nineteen.54 Many of these girls have suffered rape and sexual abuse, and are silenced by the shame of these humiliations, in addition to the stigma of pregnancy.

  Across the globe, one finds similar trends. Where abortion is illegal, there are high rates of medical complications and deaths due to illegal abortion. There are high rates of teen pregnancies. Pregnant teens commit suicide.

  For opponents of the abortion ban, each of these trends is a clear indictment of the law.

  For the ban’s supporters, though, I imagine these indirect consequences on the lives of women and girls are viewed as part of a picture that includes other lives—those that begin at conception and that the law must therefore acknowledge and protect.

  The Law Won’t Catch the Women It Targets

  The most intense condemnation of abortion typically is reserved for women whose motives seem entirely selfish. The wealthy, married woman for whom a baby is inconvenient or the woman who has an abortion because she wants to be able to wear her bikini. The women whom Mayora, an outspoken supporter of El Salvador’s ban, decried as “wanting an abortion for any reason, or for no reason at all.”55

  What we learn from El Salvador is that the law can’t catch such women. Illegal abortion no longer has to involve “abortion doctors.” Ready access to abortion drugs and the fact that abortion is almost always indistinguishable from miscarriage mean most privileged women who have early abortions will escape detection, even when things go wrong and they wind up in the hospital.

  What is true for El Salvador will be doubly true in wealthier countries, where women will have many more options for ending an unwanted pregnancy in a relatively safe, discrete way.

  The Law Will Catch Innocent Women

  The law will catch women who arouse their doctor’s suspicion. In El Salvador, the women accused of abortion are among the poorest women in the country. They seldom know the doctors they meet at the public hospitals where they get care. And in most cases, their doctors understand very little about them. Their doctors don’t know anyone who lives as these women do—with outhouses, dirt floors, no running water. These women are so poor and marginal that their doctors find it hard to understand their responses to crisis. Their world is so unfamiliar that it becomes possible for doctors, and later prosecutors and judges, to project their own fears onto it, inventing motives for crimes in the process.

  To the woman in labor who fell down the steep path to the latrine, they impute the intention to conceal her delivery and kill her child. She must have wanted the child to suffocate in the muck so that she could avoid the burden of raising it on her own, with no husband and no money.56

  The lucky ones have lawyers who spend years undoing the errors that led to their convictions. But there is no way to undo the harm brought on by a state that took a woman in crisis, having arrived at a hospital hemorrhaging and in pain, having given birth alone, having lost a child, and treated her like a criminal.

  It is tempting to say these cases will not arise in the United States. Surely, our defense lawyers would protect the rights of the wrongly accused, insisting that the state prove the woman’s guilt rather than being able to presume it.

  But here, too, doctors can be suspicious of women who live on the margins of society, of those they meet only in the emergency rooms of public hospitals.57 The consequences of making abortion a crime include a pattern we’ve already seen, in the context of prosecutions of women for ingesting illicit drugs during pregnancy. As I discuss in detail in chapter 5, these prosecutions have disproportionately targeted poor, black women, many of whom were seeking prenatal care at public hospitals. Ban abortion and that pattern will intensify. The hospital will increasingly become the site of a crime scene investigation, and poor women will be the suspects.

  CONCLUSION

  We saw in the first chapter how abortion opponents look to the law to reinforce their moral vision. In this chapter, we see the pragmatic limitations of the law.

  The conceit of the law is that the moral stance and the practical consequences will move in one direction. Can we honestly say this is true about the abortion ban?

  At best, the results are ambiguous. It is a law whose only tangible benefit beyond its moral message is hypothetical: there must be some women whom the law deters, even if there aren’t enough to cause a rise in birth rates.

  Are these hypothetical lives saved enough to offset the consequences we’ve seen in El Salvador?

  I can’t make that calculus for you, but make no mistake: these consequences will follow us as we turn to the question of restricting abortions in the United States.

  We’ll be tempted to ignore them, because they play no part in our pitched battle over abortion law. But if we keep them in mind, they’ll permit us to see the shallow and misleading nature of our abortion war.

  THREE

  THE REDDEST STATE: OKLAHOMA’S LONG BATTLE OVER ABORTION LAW

  The best place to watch the US battle over abortion law play out is in a state where a strong majority identifies as pro-life, and lawmakers are determined to pass laws opposing abortion. I wanted to understand the way abortion opponents viewed the law. Did they look to the law for moral condemnation, as I’d seen abortion opponents do in El Salvador? How might things change, in their eyes, were abortion to be banned?

  I couldn’t hope to learn how the pro-life movement viewed abortion laws without leaving my home, in the blue state of California. And so, in 2013, I went to Oklahoma.

  As most Oklahomans will proudly tell you, it is a really, really red state. After Democrats lost every single county in the state in the 2008 and 2012 presidential elections, Oklahomans laid claim to being “the reddest state in the country.”1 In 2016, Republican Donald Trump won over 65 percent of the vote. His Democratic opponent Hillary Clinton earned less than 30 percent.

  Oklahoma caught my eye when I first began thinking about visiting a red state because of the pace at which Oklahoma passed its pro-life legislation. In less than a decade, it brought its abortion laws right to the limits of what was permissible under federal law as dictated by the US Supreme Court. This fervor has earned Oklahoma top ratings in the Americans United for Life’s annual legislative report card for over a decade.2

  Oklahoma also has the virtue of being home to several law schools, which meant I had a place to begin seeking contacts. The Oklahoma City University Law School, located blocks from the capitol, has alumni serving throughout state government. I reached out to former dean Lawrence Hellman, who, along with Professors Arthur LeFrancois and Andrew Spiropoulos, introduced me to lawmakers, lobbyists, doctors, and activists at the forefront of the state’s battles over abortion law.

  I rented a house in a modest neighborhood in Oklahoma City and moved in for the hot summer months of 2013. And I started listening.

  WHEN OKLAHOMA WAS A DEMOCRATIC STATE

  In 1973, Oklahoma was a solidly Democratic state. Not only did the people vote Democratic in national elections, Democrats held both chambers and the governor’s office. The largest religious organization in the state, the Southern Baptist Convention, supported legalized abortion.3

  Anyone hoping to understand abortion politics in Oklahoma must sooner or later reckon with the impact and the legacies of two men: Tony Lauinger and Bernest Cain. Since 1973, Lauinger has devoted himself singularly to the cause of ending legalized abortion. He’s never held office, yet even the legislators I met spoke of the bills Lauinger introduced, the laws he got passed, and the thickly powerful pro-life coalition he co
mmands.

  From 1978 to 2006, Lauinger’s nemesis was state senator Bernest Cain. In his capacity as chair of the Senate Human Resources Committee, working at the behest of the Senate president pro tempore, Cain spent close to thirty years preventing antiabortion bills from reaching the Senate floor. His district was the most liberal in the state, which insulated him from the increasingly socially conservative statewide electorate. By keeping pro-life bills stalled in his committee, he single-handedly kept Oklahoma from passing laws that restricted access to abortion.

  By the end of his time in office, Cain was playing a frenzied game of whack-a-mole. Both state houses were filled with legislators elected on promises to end legalized abortion. The backlog of antiabortion bills was legion. Districts had swung so far to the right that his fellow Democrats no longer thanked him for protecting them from the political fallout they would have faced, had they been forced to cast a vote their constituents might have viewed as “pro-abortion.” Whether for reasons of moral conviction or political expedience, most Democrats and Republicans wanted to pass laws restricting abortion.

  But our story begins decades before then, back in the days when abortion had just become legal.

  Building a Pro-Life Movement in Oklahoma: 1973–2004

  Lauinger was alone when, in 1973, he began fighting against legalized abortion. He was a Catholic in a state where 60 percent of the population was Southern Baptist and only 4 percent was Catholic.

  In an article in the National Right to Life Committee (NRLC)’s World Magazine, Lauinger’s entry into antiabortion activism is described: “In 1972, he was preparing to become a father for the first time. He reveled in being able to feel his baby kicking inside his wife’s womb. When the Supreme Court legalized abortion, several months after his daughter’s birth, he felt like he’d been hit in the face by a four by four.”4

  Born into exceptional wealth, Lauinger was thirty in 1972, when he felt called into service in response to Roe v. Wade.5 He began by founding Tulsans for Life, an affiliate of the NRLC. By 1978, he was president of Oklahomans for Life and a member of the NRLC’s board of directors.

  It is hard to remember a time when the battle over abortion was not at the center of our public discourse. Kristen Luker’s 1984 book, Abortion and the Politics of Motherhood, is a masterful history of antiabortion activism in the years immediately following Roe.6 Her book helps set the context for understanding Lauinger’s work.

  Luker’s research on pro-life activism in the years following the Supreme Court’s Roe ruling documents a movement built largely by individuals who were shocked by the court’s decision. They had interpreted the relative silence about abortion as a collective agreement that the fetus was a person, and that abortion ends the life of a child.7 United by their shared opposition to abortion on moral grounds, yet lacking political experience or community-organizing backgrounds, early pro-life activists gained a foothold in faith-based communities.

  In the context of religious communities, Lauinger forged an alliance that is central to the power of Oklahoma’s pro-life movement. By the early 1980s, Lauinger was working to mobilize Oklahoma’s largest faith-based organization to join him in fighting against legalized abortion.

  In order to explain the way pro-life politics evolved in Oklahoma, I have to say a bit about the centrality of organized religion in public life. God is ubiquitous in Oklahoma. That’s silly, of course, because for those who believe in God, by definition, God is everywhere. But in Oklahoma, unlike California, God is really out in public. God surfaces not only in clichéd billboards and bumper stickers but also in casual conversations.

  I feel pretty grounded in my faith as a Jew. I’m not put off when others make reference to God when describing their lives, the decisions they’ve made, or the way they’ve coped with adversity. There was something foreign to me, though, about the way so many Oklahomans spoke of a personal relationship with God and of the need to live, and to pass abortion laws, in accordance with God’s dictates.

  To the extent that I was going to understand what folks meant when they invoked God in our conversations about abortion and the law, I knew I needed to understand more about the Southern Baptist Convention. There are many different types of evangelical communities in Oklahoma, and I don’t mean to suggest that the Southern Baptists speak for all of them. It’s just that the Southern Baptists are by far the largest: 60 percent of Oklahomans identify as Southern Baptists.

  So, on a hot July morning in 2013, I traveled to the state headquarters of the Southern Baptist Convention to meet with Dr. Anthony Jordan, its executive director. The five-story office building on Oklahoma City’s north side houses an organization that represents over 1,830 churches in Oklahoma. It publishes a paper with the third-largest circulation in the state, a weekly called the Baptist Messenger.8 In a sense, one might see Jordan as the voice of the state’s majority.

  Jordan’s involvement with abortion politics didn’t begin until 1985. That year, he was asked to preach at a statewide conference for Baptist pastors. He was invited to speak about any moral issue. Because he and his wife had struggled with infertility, he had a personal connection to the issue of adoption, and to the way in which legalized abortion reduced the number of babies put up for adoption. He decided to preach about abortion.

  He began by listing his reasons for opposing abortion, which included both medical and biblical sources. But the speech took a personal turn when he mentioned a recent news story about the discovery of sixteen thousand body parts found behind an abortion clinic in California. “At that point,” he said, “I asked my wife to bring up our five-month-old adopted daughter. ‘When I read about the trash heap,’ I told the crowd, ‘it bothered me even more so because this little girl. . . . If it hadn’t been for the Baptist Children’s Home opening their doors to her Catholic mother, she could have been in a trash heap.’

  “The entire room, including me, was in tears,” he said. His eyes were wet even now, remembering the moment.

  In the wake of that speech, Jordan and the Southern Baptist Convention joined forces with Lauinger and the Oklahoma Right to Life organization. Together, they developed a series of projects and initiatives. Foremost among the public demonstrations is the annual Rose Day rally, which began in the mid-1970s when two Catholic women brought roses to their state legislators to mark the anniversary of Roe v. Wade. This small gesture evolved into a yearly event that by 2016 saw an estimated twenty thousand Oklahomans converge on the state capitol, each bearing roses for their lawmakers. Today, Oklahoma’s Rose Day is one of the nation’s largest annual pro-life gatherings.9 In the early years, pro-life legislators invited the activists into the state house, letting them sit on the floor during their rally. In recent years, the crowd has been so big it fills the Senate floor and both legislative galleries. The rally features speakers ranging from the governor to national pro-life leaders. Roses are everywhere.

  On a more quotidian level, the church began offering support, along with ministry, through pregnancy resource centers. Jordan’s church created Hope Pregnancy Center, one of the first in the state. It is staffed by volunteer community members and funded by donations and by the state of Oklahoma, through its sponsored “Choose Life” license plate program. The center, along with several hundred similar centers around the state, offers pregnancy tests, ultrasounds, and aid to women facing unplanned pregnancies. Jordan explained the mission of these centers, “We offer to stand beside the woman, supporting her through parenting training, placement of her baby with adopted family, if they wish. We support her either way.”

  The Southern Baptist Convention’s work is not limited to rallies and counseling. Indeed, its most significant impact may be the mobilization of a powerful voting bloc. Under Jordan’s leadership, the Southern Baptist Convention publishes election brochures that list candidates’ positions on abortion. Jordan told me that he couldn’t vote for a pro-choice candidate today, and his voting guides help similar-minded voters follow suit.
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  With at least nine hundred thousand members identifying as Southern Baptists, Jordan confidently noted, “We’re organized and we can move.” They’ve developed an alert system, dividing the state into districts to get out the vote. With a phone call, his office can mobilize forty-two separate organizations.

  Until 2004, all that mobilization had little effect on the statewide abortion laws. “We had the numbers,” Jordan noted. “I knew where people stood on the abortion issue in my constituency. I knew the number of churches, the number of Catholics, and the number of nondenominational Christians. But the Capitol wouldn’t move.”

  I knew why. I’d already had lunch with Senator Bernest Cain.

  Block That Bill: The Career of Senator Bernest Cain

  Over lunch in a crowded restaurant where suited patrons stomped off the March rain and greeted one another with cheery backslaps and clasped handshakes, former state senator Bernest Cain told me about his relationship with God.10

  “It’s always been a religious deal to me,” he said. “I knew my work at forestalling abortion bills was only a holding pattern. I never looked at it as a success; I never celebrated my victories. It had to be dealt with spiritually. I’ve done what I’ve done because I’ve worked to be true to my faith as a Unitarian.

  “The hypocrisy of wealthy Republicans aggravates me,” he said. “I think they’ve gotten away with making abortion a litmus test, more so than gay rights, because of class and gender. Abortion affects poor women, not men.” Having seen firsthand which women were most affected when El Salvador banned abortion, I knew all too well what Cain meant.