Intimate Wars (29 page)

It was clear that the face of the war was changing once again. The combatants remained the same, but the nature of the attacks against women expanded into new territory. The Clinton era had seen a guerrilla war waged against abortion rights, with antis swarming abortion clinics, killing doctors, making overt threats, and ambushing patients on the streets. They had also begun chipping away at abortion rights incrementally with legislation and lawsuits in multiple states. These attacks were effective to a certain extent, but the antis lacked the main prize—the bully pulpit. When George W.
Bush took office, they won that, too. The antis no longer felt disenfranchised or alienated; now, the re-criminalization of abortion was much closer on the horizon. They leveraged their new support in the White House to help Bush fight what could only be described as a total war against reproductive freedom.

Women of the United States began falling prey to the quiet, carefully planned “stealth strategy” that characterized the Bush era. Realizing that the goal of overturning
Roe
remained elusive, the antis focused on achieving that same end by making it very difficult, and in some states almost impossible, to provide the procedure. The strategy had its roots in the 1992 US Supreme Court decision
Planned Parenthood v. Casey
, which declared for the first time that states had authority to regulate abortion clinics performing first trimester abortions (as opposed to only regulating those who provided second trimester abortions), as long as they didn't place an “undue burden” on women's access to abortions. The vague language of the ruling left states open to the antis' creative applications. They found ways to create small hurdles for clinics to climb if they wanted to stay in operation. Relatively benign on their own, these little obstacles piled up, making it more and more difficult for clinics to offer services. The goal was to create an environment where, in the words of one anti-choice leader, “abortion may indeed be perfectly legal, but no one can get one.”

Their strategy was effective. Between 1995 and 2003, approximately 350 anti-choice measures were enacted, protecting pharmacists who refused to fill birth control prescriptions on moral or religious grounds, preventing physicians from performing most abortions, requiring state-controlled counseling and waiting periods for abortion, and mandating
parental involvement in minors' abortions. There was also a rise in bogus malpractice cases brought against providers claiming that women were “coerced” into having abortions, and that many women didn't know they were actually “killing their babies.” Most cases were dismissed or withdrawn, but each time a doctor was accused of malpractice, the ensuing legal fees and damage to the clinic's reputation did almost as much harm as if the cases had gone to trial.

Targeted Regulation of Abortion Provider (TRAP) Laws, designed to add excessive regulations and extra costs to abortion clinics, formed another arm of the total war campaign. States began requiring clinics to meet regulations that far exceeded the usual requirements of most medical facilities, including increased equipment, design, and training costs, higher licensing fees, and more documentation requirements. Some states mandated staffing levels above those usually needed for first-trimester abortions. New zoning ordinances were also passed to force clinics to move. They drove up the cost of abortions, placing them out of reach of many women, and forcing some clinics out of business.

During the Bush administration Choices had to change some of our practices, including rewording our consent forms, to conform to the new legal requirements. It was the most violative period of government interference in Choices' entire history. Aside from being licensed and regulated by New York State, Choices was also accredited by the Ambulatory Association of Health Care Centers (AAAHC), which gave us excellent reviews after inspecting the facility. But when the New York State Department of Health, which oversees the AAAHC regulators, came for an inspection one month later, their inspectors managed to find problems with the fire alarms, weak water pressure in two of our faucets, and gaps in our ceiling tiles—issues that were shared by the
entire building, not just the clinic. Still, they threatened to close us down unless we made immediate repairs, which totaled approximately $400,000.

I had navigated such regulatory battles since Choices was still Flushing Women's, and I'd always found a way to survive. But many clinics simply could not manage the prohibitive cost of these attacks. The cost of abortions was always the one thing in health care that decreased. Patients received complete first trimester abortion care for under $400 dollars, a fee that had remained the same for twenty-five years. And since many providers often lowered their fees or waived them entirely for those in need, it became difficult, and sometimes impossible, to make ends meet. State by state, clinics began shutting down, until 87 percent of counties in the United States had no abortion providers.

One of the most maddening aspects of the stealth strategy was that it was conducted in the name of “women's health” in order to garner public support. Stricter regulations for clinics and laws mandating “unbiased” counseling were characterized as protections for women. The antis had found a new defense against accusations that they valued the fetus's life more than the mother's: turning the argument back on its head, they retorted that the mother and fetus had a sacred bond, and in honoring the “baby,” they were also honoring the mother. They were slapping a women's rights label on fetal rights so that they could proclaim themselves women's rights activists, co-opting the language of feminism and thus pushing even more Americans to the anti-choice side of the reproductive rights continuum. Now, you could be “pro-life” and a feminist, too.

Pro-choice advocates were forced into a continually defensive posture. We lacked state power over the levers of government and we didn't have the support of powerful
institutions like the Church, nor the millions of corporate dollars that were funneled into the right-to-life movement and the Republican party. The pro-choice movement literally lost ground every day as more clinics closed down and more Americans bought into the anti-choice vision. How could we fight against this multi-headed pro-life Hydra?

I thought perhaps the key lay in changing the legal foundation.
Roe
determined that the right to privacy under the Fourteenth Amendment's concept of personal liberty and restrictions upon state action was broad enough to encompass a woman's decision to terminate her pregnancy (within a gestational framework), thus classifying it as a fundamental right. But I had always believed that arguing for the right to reproductive freedom under the same umbrella as the right to read pornography in one's home was a tenuous arrangement. The US Constitution contains no express right to privacy, so the foundational legal pillar of women's reproductive freedom is vulnerable.

As I had written in my letter to Senator Hatch so many years ago, the right to reproductive freedom is as fundamental as the right not to be a slave. When birth control finally became available in all its forms, women's rights activists and feminists said that women were no longer slaves to their biology, that pregnancy would no longer be the guiding and primary directing principal of their lives. The legalization of abortion went even further toward freeing women from this constriction. In a sense it was a complete negation of the Freudian principle that “biology is destiny.” But the ruling meant to uphold this right was full of holes inflicted state by state, its strength leaking out the sides. Now geography was destiny.

We needed a new starting place, a stronger legal base from which to articulate and ground our rights, one as airtight as
laws against slavery. As the stealth laws threatened to defeat the impact of
Roe
, I became more and more convinced that the right to abortion should have been articulated under the Thirteenth Amendment. This would frame reproductive freedom as a universal human right, and perhaps give the pro-choice movement the strength to hold the relentless attacks by the antis at bay.

The matter became even more urgent when President Bush dropped another bomb in 2003, signing into law the Partial Birth Abortion Ban Act, the first legislation to criminalize an abortion procedure since
Roe v. Wade
. The law forbade the procedure even if a woman's health was endangered, mandated prison terms and financial penalties for doctors who recommended abortions, and allowed a woman's male partner or parents to sue her if she had the procedure against their will. Planned Parenthood and two other organizations sued the government, and the ban was struck down by three federal district courts, but this unprecedented attack was the most audacious yet against
Roe
.

Outraged by this blatant disrespect for women's rights and well-being, I brought my ideas to a Veteran Feminists of America event honoring Justice Ruth Bader Ginsburg. I wanted to hear her opinion on whether or not lawyers should be working toward recasting reproductive freedom as part of the Thirteenth Amendment. “I have criticized the Court's decision in
Roe v. Wade
—not, of course, for the result,” Ginsberg replied when I asked her my question. “I think the notion [is] that it isn't just some private act; it is a woman's right to control her own life.”
Roe
had made abortion legal, but it was not strong enough to cast reproductive freedom as a positive moral value.

The morality of the decision had been defined by the religious class. Even people who supported the right to abortion
said that despite abortion being legal, and possibly the best decision under the circumstances, it would never really be objectively moral; it would never be a purely positive good. Women making the decision remained suspects or victims at best, and murderers at worst. Saying “I had an abortion” aloud hadn't gotten any easier since 1973. Abortion was ever a tragedy, a necessary evil, something to be kept private and about which to feel ashamed.

As long as people see abortion as immoral, its legality will be in danger. How, then, to move beyond the legality and embrace the morality? How to fully combine the two and produce ethical laws? How to create a transcendent class of women as active moral agents with which people identify and will fight to defend? The future of abortion still comes down to that fundamental question: Can we really have abortion without apology?

Women must gain the kind of biological entitlement (and the sense of power and agency) that comes so much more easily to men. To secure reproductive freedom as a fundamental right and abortion as a moral choice, we must forge our own paths to selfhood. And with these selves, we must create and assent to laws and cultural norms that serve us and withdraw consent to those that do not. As Sojourner Truth said, “If women want any rights more than they's got, why don't they just take them, and not be talking about it?” Why, indeed.

The movement was too quiet. There was little coordinated pro-choice activism. The main theater of battle was the courts, where consistent legal defense was necessary to attempt to block the cascade of restrictions that were proposed. NARAL, NOW, the Feminist Majority, and Planned Parenthood—the main pro-choice institutions—remained in
the front of the firing lines, but they continued to lose both legal battles and the hearts and minds of many women.

Meanwhile, the clinics struggled on, and the patients kept coming.

 

THE GOING WAS TOUGH at Choices. I had been glad to help support people who needed help after 9/11 through the Mental Health Center, but the massive legal fees I had incurred in recent years made the continued subsidy of Mental Health Center expenses impossible. In order for me to keep Choices running, I had to disband the center after ten years of operation. I had created something that was very dear to me, but I had also learned when to let go.

Riding horses, that beloved pastime that had given me solace through the worst trials of my life, also faded into the past. I endured several traumatic injuries to my hips, and the pain became so excruciating that I began to have difficulty walking and bending. I was finally forced to have hip replacement surgery. By then I'd sold Garrison and donated all twenty-seven of my animals to good homes. I moved to East Hampton and brought only Hollywould. I kept her at a stable in East Hampton for a couple of years, but it was becoming more and more obvious that I would never really be able to ride again.

After fully recovering from my surgery, I went with Mahin for a summer weekend retreat to the Otesaga Hotel in Cooperstown. I'd spent so many summers of my childhood in the country, at overnight camps where the days were hot and steamy and the nights required cool clothing. But this was the first summer that I had embraced since my childhood, the first summer I felt so powerfully the passing of time, the first time I anticipated greeting the first coloring of the leaves
in the fall with alarm. The first time I felt I was aging. I was beginning to feel that so much of my life was behind me.

I took a trip to Normandy to walk the massive beaches with their history of blood and battles. I stopped in Caen, where the young Charlotte Corday had grown up, and then went on to Rouen, where Joan of Arc was tried and burned. I entered a small museum and walked down a winding set of stairs to a room filled with
tableaux vivants
of famous stages of Joan's career. I rested in front of each one, relishing my past imaginings, when a young family with a son about five years old came in behind me. The parents stood with their child between them, pointing to scenes in the montage, teaching, showing—a transmission of cultural memory before my eyes.

How would it feel, I thought, to have a little girl next to me right now?

That night, I wrote in my journal: