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Are Abortion Rights Just for Privileged Careerists?

Dec. 17, 2021, 5:52 PM

Dear women of Big Law, did you know that the fight over abortion is all about indulging your hopes and dreams?

That’s how the anti-abortion faction has framed the debate in Dobbs v. Jackson Women’s Health Organization, the Mississippi abortion case that was recently argued before the U.S. Supreme Court. (The state of Mississippi is asking the high court to uphold its abortion law which bans abortion after the 15th week of pregnancy and to overturn Roe v. Wade.)

Mississippi Attorney General Lynn Fitch advanced that narrative back in July, arguing that Roe is now antiquated. “In 1973, there was little support for women who wanted a full family life and a successful career,” Fitch wrote. “Maternity leave was rare. Paternity leave was unheard of. The gold standard for professional success was a 9-to-5 with a corner office.” But now, Fitch asserts, “women have carved their own way to achieving a better balance for success in their professional and personal lives.”

To drive home the point that women can achieve professional success while juggling motherhood, Fitch cited herself as an example: “I know how hard it has been–and how hard it can still be. I was a working, single mother of three beautiful children.” By eliminating the right to abortion, Fitch argued, women can experience motherhood and “have it all"—as she has done.

Justice Amy Coney Barrett, herself a mother of seven, echoes the argument that women no longer need the safety rail of legal abortion to pursue their dreams.

During oral arguments in the Dobbs case, she brought up “safe haven” laws that allow women to leave their infants at police stations and other places without fear of prosecution. If the premise is that “forced motherhood” would “hinder women’s access to the workplace and to equal opportunities,” Barrett said in an exchange with U.S. Solicitor General Elizabeth Prelogar who’s challenging the Mississippi law, “why don’t safe haven laws take care of that problem?” In other words, a woman can now easily rid her unwanted baby and go on with her life—so who needs abortions?

Armed with their mom credentials, Fitch and Barrett are upping the ante of what women can and should do. In the past, the pro-life ideal was the traditional stay-at-home mom. Now, the latest pro-life role model is a woman with a big career and a bunch of kids in tow.

It’s all headspinning, to put it mildly. Who believes women can now have it all? Or that carrying a baby to term, then getting rid of it, is so breezy? Fitch also makes the ludicrous pitch that eliminating legal abortions will empower women and will make workplaces more family-friendly and men more responsible.

Other pro-lifers are making similar arguments—somehow conflating abortion rights with unbridled ambition and capitalism run amok. In the New York Times, conservative legal scholar Erika Bachiochi writes: “The abortion regime has been deeply complicit in preserving a modern economy built not around the needs of families but on the back of the unencumbered worker who is beholden to no one but her boss.” (Is that you, Big Law?)

Some Big Law women say the current discourse about abortion is distorted and misleading. “This shouldn’t be about career-minded women,” says a female partner at a major firm in New York. “Abortion is not some kind of privilege or luxury. For some, it has to do with survival.”

The point is that restrictive abortion laws will have little effect on professional women or those in their orbit. “We have options,” adds a senior counsel who works at a bank. “Women like us can always find someone who will do the abortion.”

Indeed, what’s been sidelined in the discussion is how abortion restrictions affect those who are most vulnerable—teenage girls, the poor, women with health problems, those in abusive relationships, and victims of rape or incest. (Neither Mississippi nor Texas, which has effectively banned all abortions, makes exceptions for pregnancies that result from rape or incest. Incredibly, neither rape nor incest was discussed during the oral argument.) Also left out of the discussion are what happens to the unwanted children once they are born.

“I think it’s brilliant but insane,” says Joni Hersch, co-director of Vanderbilt Law School’s Ph.D. Program in Law and Economics, about how pro-lifers have latched onto women’s careers as the focus of the abortion debate. Though the abortion demographics have changed over the years, “abortion still largely affects lower income and minority women,” Hersch adds. According to the most recent findings by Guttmacher Institute based on 2014 statistics, 75% of abortion patients were poor or low income, and Black and Hispanic women made up 53% of abortion patients.

Of course, well-off White women also have abortions. “I had three abortions,” says a female partner at a Big Law firm. “My first was when I was 18 in college.” But did she decide to get them because she was plotting to become a law firm partner? “Absolutely not,” says the now married mother of two. “It was not a careerist decision. It was a life decision. I was not capable of being a parent, and I had no idea about what I was going to be.”

The reality, though, is that it’s the poor and disadvantaged—minority as well as White women—who will bear the consequences. So how did we get to this point of portraying abortion as an issue of privilege? Did the pro-choice segment lose the narrative that legal, safe abortions are critical to women in all sorts of circumstances?

“If abortion is currently framed as a question of career choice, I don’t think that’s because abortion rights advocates lost the narrative,” says Khiara Bridges, a professor at UC Berkeley School of Law. “It’s because we lost the election in 2016,” alluding to the three justices appointed by Donald Trump. “We’ve been telling people that abortion is about the ability of women to control the course and content of our lives, that it’s a matter of racial justice, a matter of escaping poverty and domestic violence, of doing what’s right for our existing children. If the right wants to reduce it to ‘career choice,’ then they’ve chosen not to hear what we’ve been saying.”

Another way to look at it is that the anti-choice contingent knows precisely how to fashion the debate. Narrowing the focus to a bunch of ambitious women who can’t be bothered with having a baby is a clever way to defect from the grim reality of what happens to women who are far less privileged.

To contact the reporter on this story: Vivia Chen in New York at vchen@bloombergindustry.com

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