Strange bedfellows: the destigmatization of anti-abortion reform.
Leinwand, Tali R.|
As the United States abortion debate continues into its fifth decade since Roe v. Wade, (1) pro-life groups are increasingly aiming to align themselves and their messages with classically "feminist" or "liberal" interests. Pro-life groups now heavily focus on women's rights as a platform for advancing their ideological arguments and achieving legislative measures that ultimately restrict access to abortion. The use of such platforms allows antiabortion sentiment to appear more palatable to a broader swath of women while enabling the pro-life movement to soften its image and improve its appeal.
This strategy, which I will refer to as pro-life "destigmatization," manifests itself most clearly in law and politics, wherein pro-life advocates frame their anti- abortion arguments in broadly appealing, women's rights-oriented terms. This ironic alignment is demonstrated through three examples that collectively represent an underlying effort to destigmatize antiabortion reform and portray it as a branch of women's rights: 1) advocacy for the expansion of the Pregnancy Discrimination Act (PDA), particularly in the context of the recently decided Supreme Court case of Young v. United Parcel Service; (2) 2) political advocacy organizations' support for pro-life women candidates and the creative framing of antiabortion legislation in election campaigns; and 3) anti-abortion legislation that restricts abortions specifically performed for sex-selection purposes. In each of these examples, there is a deliberate appeal to ideals many women already value such that, in theory, there would not be much of a leap from supporting feminist concerns to supporting the pro-life movement writ large. This connection is so close because, as each of these example shows, the ultimate goal of chipping away at abortion rights is portrayed as secondary, if it is even acknowledged at all. Rather, the pro-life presence is positioned as advocating something different from abortion, be it pregnancy rights or tax reform.
Casting anti-abortion arguments in "feminist" terms is not a new effort. (3) Scholars like Reva Siegel have long charted the development of the pro-life movement's "women protective antiabortion arguments]" and the ways in which the pro-life movement has "supplant[ed] the constitutional argument '[a]bortion kills a baby' with [the] new claim '[a]bortion hurts women.'" (4) Similarly, Mary Ziegler's 2013 article in the Berkeley Journal of Gender, Law & Justice provides a detailed history of pro-life feminism, assessing the evolution of "pro-life, socially conservative, self-proclaimed feminists" and their growing role in the abortion debate. (5) Consider also the decades-old legislative history of the Pregnancy Discrimination Act, which, as discussed infra, shows the law's twin goals of female equality in the workforce and the preservation of a woman's right to bear and raise children. (6)
Still, the pro-life movement's destigmatization strategy has gained traction in recent years as pro-life feminism targets "a new generation of young women who reject the illusion that to be pro-woman is to be pro-choice." (7) The examples discussed in this Note are contemporary ones that, when taken as a whole, coalesce into indications of a dominant trend. This Note adds to this area of scholarship by demonstrating how pro-life advocates, legislators, and courts are currently drawing on feminist and women's rights movements to advance abortion bans and destigmatize anti-abortion sentiment.
Pregnancy Discrimination in the Workplace
An early example of the pro-life movement's effort to insert itself into classically feminist causes is the movement's role in the passage of the Pregnancy Discrimination Act (PDA), an amendment to Title VII of the Civil Rights Act of 1964 that "prohibits] sex discrimination on the basis of pregnancy." (8) The amendment arose in part as a response to the Supreme Court's decision in General Electric Company v. Gilbert, (9) which allowed employers to exclude pregnancy from disability benefit plans. (10) The PDA set a floor for the sort of accommodation that employers are required to provide their pregnant employees." It was heralded as a "landmark act for working mothers" because it "outlawed previously] common forms of discrimination, such as not being hired due to visible pregnancy or likelihood of becoming pregnant, ... being fired after maternity leave, or receiving a pay cut due to pregnancy." (12) Ultimately, the PDA became known for its role in combatting workplace pregnancy-based discrimination by broadening Title VII's definition of sex discrimination to encompass discrimination based on "pregnancy, childbirth, or related medical conditions." (13)
But the PDA's original supporters were not limited to champions of workplace equality or pioneering feminists. Some members of Congress, for example, heralded the PDA as a means of combatting the economic vulnerability that might force female employees to have abortions if their employers would not support their pregnancies. Such sentiment was notably articulated by Democratic lawmakers. California Congressman Augustus Hawkins, chief House sponsor of the PDA, remarked that "some mothers, unable to afford the loss of income caused by discrimination, may be discouraged from carrying their pregnancy to term." (14) New Jersey Senator Harrison Williams, chief Senate sponsor, stated: "One of our basic purposes in introducing the bill is to prevent the tragedy of needless and unwanted abortions forced upon a woman because she cannot afford to leave her job without pay to carry out the full term of her pregnancy." (15) Then-Senator Joe Biden of Delaware commented that pregnancy-based discrimination effectively forces women "to choose abortion as a means of surviving economically." (16) Since its inception, the PDA has been regarded by some as a shield (protecting against pressures to get abortions) and as a sword (attacking discrimination that interferes with the right to bring up children) in its potential pro-life implications.
Pro-life groups most recently seized on this legislative history in the recently decided case of Young, (17) which illustrated the way in which pro-life groups have adjusted their rhetoric to align with classically feminist interests. The Young case proceeded as follows: Peggy Young, a UPS delivery truck driver, took an approved leave of absence from her job to undergo in vitro fertilization treatment. (18) Young subsequently became pregnant and returned to work with a doctor's note restricting how much weight she could lift while pregnant. (19) UPS then fired Young for the duration of her pregnancy (implicitly refusing to move her to a temporary alternate position) despite Young's assurance that, in practice, her job rarely required her to exceed her doctor's weight limitation. (20) Young sued UPS in federal court, arguing that UPS, by refusing her request for a temporary accommodation while accommodating other similarly situated employees, had violated the PDA. (21) The Fourth Circuit rejected Young's argument and articulated a strictly narrow interpretation of the PDA: "[T]he Pregnancy Discrimination Act does not, despite the urgings of feminist scholarsf,] require employers to offer maternity leave or take other steps to make it easier for pregnant women to work. Employers can treat women as badly as they treat similarly affected but non-pregnant employees . . . ." (22) The Supreme Court granted review of the parameters of employer accommodation of pregnant employees, ultimately vacating the Fourth Circuit's holding and remanding the case for the lower court to decide whether Young could demonstrate her employer's discrimination under a newly articulated test. (23)
During the briefing stage of Young's Supreme Court-level litigation, twenty- three pro-life groups filed an amicus brief, arguing that supporting pregnant women is a prolife interest. (24) The groups, invoking the PDA's legislative history, collectively argued that protecting women from pregnancy-based discrimination in the workplace (1) reduces pressures among female employees to succumb to abortion (25) while (2) simultaneously strengthening their "fundamental rights" to bear children and raise a family. (26) Summarizing its interest as amici curiae, the groups wrote:
Economic pressure is a significant factor in many women's decision to choose abortion over childbirth. Protecting the ability to work can increase true freedom for women, promote the common good, and protect the most vulnerable among us. The PDA protects the unborn child as well as the working mother who faces economic and other difficulties in bearing and raising the child. (27) In other words, the groups argued, the PDA is certainly designed to protect pregnant employees from a host of workplace burdens or pregnancy-based discrimination. But it was "explicitly designed to protect [them] from the vulnerabilities that may arise from their economic position[s]," (28) i.e., from the temptations of abortion.
The pro-life groups' emphasis on women's rights contrasts with mainstream liberal groups' tendency to focus on these issues in gender-neutral terms. "Pro-life feminists have promoted an important counterargument to equality-based justifications for abortion rights: pro-life feminism helps paint abortion opponents as pro-woman and amenable to the needs of women who pursue higher education or professional careers." (29) This contrast has been especially stark in the employment context. Feminists for Life of America (FLA), for xexample, a pro-life organization that did not sign on to the Young amicus brief, has officially "recognize[d] that abortion is a reflection that our society has failed to meet the needs of women." (30) The FLA's website offers a wealth of information for female employees who are either pregnant or contemplating becoming pregnant. For example, under the "Resources: In...
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