I am grateful for David Pozen's thoughtful observations regarding About Abortion. They have sharpened my understanding of how to think about the problem of abortion--or more accurately, about how abortion is kept problematic--as a matter of law and of social practice. I invoke the word "problematic" to describe the cultural setting in which abortion sits: although the procedure is legal, common, and safe, it is often treated as though it were not legal, or barely so; not common, except perhaps for women and girls who have nothing to do with you; and not at all safe, but rather an invitation to life-long suffering. These disconnects between abortion's reputation and its actuality are illuminated through Pozen's discussions of the "abortion closet" and of his application of "rules and standards" to abortion. In this reply, I expand briefly on his insights, beginning with closets.
Pozen states that like other behaviors "coded as shameful or deviant," abortion "is in the closet." (1) I agree. But what perplexes is why this is so--why the closet is still considered to be abortion's natural habitat some forty-five years after the procedure was decriminalized in Roe v. Wade. (2) To be sure, some believe that whatever its legal status, abortion is inherently immoral: a killing that would be a murder but for the United States Supreme Court. (3) As Mississippi Supreme Court Justice Easley explained in a 2001 opinion, "Ever since the abomination known as Roe v. Wade ... became the law of the land, the morality of our great nations has slipped ever downward to the point that the decision to spare the life of an unborn child has become an arbitrary decision based on convenience." (4) On this account, the disrepute, ostracization, and stigma that often attach to immoral conduct (adultery and homosexuality were common twentieth century examples) are rightly bestowed in cases of abortion. Others additionally link abortion's immorality to the necessary predicate of sex. On this view, the procedure operates as a get-out-of-jail-free card for women seeking to avoid the wages of sin (the sex). If the sinner can hide the second sin (the abortion) by barricading herself in the abortion closet, normal unstigmatized life may proceed apace, the burdens of deception and suffering notwithstanding.
Yet the abortion closet is more unjust and more complicated than I have described. It is unjust because the closet's architects are not simply citizens who by the power of their moral suasion have created a culture where abortion operates as a dirty secret. Religions too, Roman Catholic and Evangelical churches, for example, have also played their part. (5) But it is the state's intervention that has made closeting a more durable and enduring phenomenon. Following Roe v. Wade, (6) and particularly since Planned Parenthood v. Casey, (7) law itself has become the great anti-abortion moralizer, throwing heavy-weight regulatory punches that fall just short of traditional punishment. Much of this regulation is aimed at showing the woman that whether she chooses to call this procedure an abortion or a termination, from the state's perspective, it is murder plain and simple. That is why before a woman can give legal consent, she must undergo ultrasound and be offered a look at "the image of her unborn child." (8) It is why in other states she must listen to a doctor read out a legislatively drafted script about her fetus's stage of development, (9) and why in Texas and elsewhere she is informed that she must bury or cremate the post-abortion remains. (10) The message being pounded here is clear: abortion operates on a person, not a fetus. With that as state policy, it is no wonder that women don't want anyone to know what they have done, and what kind of person they really are.
The last phrase raises a further complication of the...