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Is an abortion compromise possible? After decades of political fighting between pro-choicers and pro-lifers, most Americans would surely like to see the issue laid to rest. And yet, all signs point to there being no end in sight. American anti-abortion groups have, in fact, shifted their strategy over the decades. Rather than trying to overturn Roe v. Wade, the landmark 1973 court decision that struck down many state laws banning abortion, in its entirety, they now attempt to restrict abortion access piece by piece.
They have had remarkable success. While legislation to establish the personhood of an embryo and broadly outlaw abortion has failed, initiatives requiring parental consent, ultrasounds, readings of statements falsely claiming that abortion causes breast cancer or mental illness, mandatory waiting periods and a variety of other roadblocks have largely passed. The biggest recent success is in Texas, where abortion opponents managed to outlaw abortion after 20 weeks of pregnancy.
By tightening restrictions on how many weeks into a pregnancy a woman may terminate, anti-choice activists are flouting the clear legal framework set by Roe and subsequent abortion-related Supreme Court cases. The U.S. Supreme Court has been clear that abortion must remain legal up to the point of fetal viability, which comes around 24 weeks of pregnancy, and that even after viability, laws must grant exceptions for a woman’s health and life. Abortion opponents are having mixed success in restricting abortion rights even before that 24-week cutoff, in part because the court has also held that many pre-viability restrictions (though not wholesale bans) on abortion are constitutionally permissible, and because a majority of Americans support abortion restrictions.
Anti-choicers point to many European countries as evidence that American abortion laws are radical and that banning the procedure after the first few months of pregnancy would not harm women. And when you look abroad, it is indeed true that many countries with low abortion rates and better health outcomes restrict abortion roughly after the first trimester.
Might it make sense for the United States to do the same?
Doing it the French way
I would say yes — that is, if the U.S. extended to women the same reproductive health services on offer in a place like France, which restricts abortion after 12 weeks. French women have access to affordable health care enabling them to evaluate their reproductive needs with a doctor, and can easily procure and pay for whatever form of birth control will work best for their circumstances. That alone significantly reduces the abortion rate, as does the comprehensive sexual health education that French students receive, and the general lack of any government affirmation or promotion of religiously conservative “purity culture.”
If French women do get pregnant unintentionally and want to terminate, abortion is entirely free and widely accessible. Contraception, prenatal care and early child care are all subsidized, making them affordable at nearly every income level. Emergency contraception is available over the counter for less than $20; for minors, it is free.
A woman seeking to terminate can begin the process by consulting with the doctor of her choice. The doctor can refuse to perform an abortion but must direct the woman to a family planning clinic or a doctor who will perform the procedure. Past the 12-week mark, abortion is restricted, unless the pregnancy threatens the woman's life or health (including mental health) or if severe fetal abnormalities, which often cannot be identified until later in a pregnancy, are discovered. There are also exceptions for rape and incest. Minors do not need their parents' consent to terminate a pregnancy but must come to the procedure with an adult of their choosing.
In weighing the decision to continue a pregnancy, French women proceed with the knowledge that their health care system will not leave them financially devastated after childbirth and their government will assist with affordable and high-quality child care. That renders the choice to have an abortion less economically coercive than it often is in the U.S., where many women are forced into the tough choice of providing for the family they already have or giving birth and ushering in increased financial instability. While having a child of course requires a financial assessment, French public policy ensures that women will not be paying tens of thousands of dollars out of pocket for the birth, and will not be navigating an often shady, underregulated system of day care providers. French women with unexpected pregnancies surely ask themselves, just as American women do, "Can I afford a baby?" But while American women often face little or no paid maternity leave, inadequate health insurance and pricey out-of-pocket child care, French women are entitled to 16 weeks of paid leave (more with subsequent children, including up to 26 weeks for a third child), great health insurance and subsidized child care that costs as little as about 50 cents per hour for low-income women.
If all of that came as a package deal with restricting abortion to 12 weeks — and if we would agree to never fight about it ever again — then yes, that is a compromise I could live with.
But that is not a deal that anti-abortion groups in the U.S. will ever sign, and it is certainly not the deal offered to women in Texas. Instead, anti-abortion advocates point to places like France to disingenuously argue that abortion restrictions cause no harm without acknowledging that the restriction is part of a much broader policy giving French women more reproductive choice, in the aggregate, than their American counterparts. The overwhelming majority of abortions among American women — 88 percent — occur in the first 12 weeks of pregnancy. Only 1.5 percent happen at 21 weeks or later. Many of the abortions in the U.S. that are performed after 12 weeks (the French cutoff) take place later precisely because of "pro-life" laws: Abortion is not covered by Medicare, so it takes poor women longer to save up to cover hundreds or even thousands of dollars of out-of-pocket medical expenses. Teenagers scared to tell their parents and unable to access abortion because of parental consent laws wait until they have no choice. Low-wage workers and those with limited time off have difficulty managing to return to the clinic two or three times as required by law. Stringent and often unnecessary clinic regulations coupled with a shortage of providers mean that outside of big cities, abortion clinics are few and far between.
The American way of giving birth is a moral failure and a human rights disaster.
Part of the reason the debate continues (with no end in sight) is that pro-life politicians and organizations in the U.S. have no incentive or desire to compromise. The abortion debates in the U.S. are less about abortion than they are about divergent philosophies about gender roles and a woman's place in society. While many in the murky political middle who identify as pro-life do so because they find abortion troubling, those who are leading the political push against abortion do not just want to outlaw the procedure; they want to return to a mythical time when men and women operated in distinct spheres, with men heading the household and earning the money and their wives tending to hearth and home as "helpmeets." Outlawing abortion is only part of that vision; as the journalist Linda Greenhouse points out, pro-life legal theories and writings show that their primary objection is to the “implicit endorsement of a value system that says it’s perfectly O.K. to have sex without the goal of making a baby.” Birth control has to go, too, despite the fact that affordable and accessible birth control drives down the abortion rate. And things like paid parental leave and state-subsidized child care make it easier for women to go back to work after a baby, or have a baby without a husband — clearly not the right-wing ideal.
Since it is simply not feasible, given current Supreme Court law, for pro-life politicians to outlaw abortion entirely, they have adopted a remarkably successful strategy of chipping away at abortion rights by making abortion more difficult to access from all angles. Low-income and rural women suffer the most from anti-abortion regulations. The result is not a lower abortion rate — the U.S. maintains one of the highest unintended-pregnancy and abortion rates in the developed world — but delayed and increasingly expensive procedures. And, not uncommonly, unwanted pregnancies are carried to term, after which women, attempting to adjust, instead often face depression, increased financial instability and poorer health outcomes.
On the other side, the pro-choice philosophy hinges on the idea that a woman should have full control over her body, and that legally requiring her to continue a pregnancy against her will is a violation of her human rights. It is a philosophy I subscribe to, and one that does not mesh well with abortion restrictions of any sort. But, as is the case with most philosophical beliefs translated into law, the ideal must often give way to the practical. And for practical purposes, I would give up some ground on when a woman could terminate a pregnancy if it meant getting better women’s health care overall in return. The reality is that without access to the tools to both plan families and help them thrive — including birth control, abortion, parental leave and child care — women simply cannot be equal players in modern society. And despite our relatively liberal abortion laws, American women and girls are not well positioned when it comes to a broad range of reproductive rights, including pregnancy prevention, access to sexual health information and the right to have children. If pro-life groups and their political counterparts in Washington were genuinely up for a horse trade and would support a full range of French-style reproductive and maternal policies in exchange for the pro-choice camp's agreement to a 12-week restriction on elective abortion, I would sign on, despite the conflict with one of my more deeply held moral beliefs. I cannot speak for every American pro-choice organization, but I imagine they would at least give that deal some consideration.
As it stands, American women die in childbirth much more often than women in other countries with comparable economies. For every woman who dies, many more are disabled or injured. Every year, 1.7 million American women see their health compromised by pregnancy-related complications. The American way of giving birth is a moral failure and a human rights disaster. Infants, too, fare poorly here. And mothers and babies are sicker, and die more often, in conservative, pro-life strongholds. Women are better off giving birth, and babies are better off being born, in liberal, pro-choice states than in the supposedly pro-life ones. The factors that lower maternal and infant mortality are complex, but access to health care and family planning are two of the most crucial. Because I value the lives of women and children, I would be happy to call it quits on the abortion debates and cede current American abortion laws in favor of a more holistic reproductive health framework.
If only those who call themselves pro-life were willing to do the same.
Jill Filipovic is a lawyer and writer. She blogs at Feministe and is a weekly columnist at The Guardian. She was the recipient of a 2013 United Nations Foundation reporting fellowship in Malawi.
The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera America's editorial policy.