Republicans and the illusion of reproductive choice.

The law, lawyers, and the court.
Sept. 5 2008 4:12 PM

Bristol's Choice

Republicans and the illusion of reproductive choice.

Bristol Palin with her infant brother, Trig, and boyfriend, Levi Johnston. Click image to expand.
Bristol Palin with her infant brother, Trig, and boyfriend, Levi Johnston

In announcing that her 17-year-old daughter was pregnant this week, GOP vice-presidential hopeful Sarah Palin used this puzzling locution: "We're proud of Bristol's decision to have her baby." Pundits were quick to point out that Bristol's "decision" must have been at least somewhat constrained by her mom's position—as articulated in November 2006—that she would oppose an abortion for her daughters, even if they had been raped. Palin is an outspoken advocate of parental veto; she called the Alaska Supreme Court's recent decision to strike down that state's parental-consent statute "outrageous." So what exactly, one wonders, was young Bristol permitted to decide?

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

John McCain led us through this same hall of mirrors in 2000 when asked what he would do if his then-15-year-old daughter, Meghan, were pregnant. "The final decision would be made by Meghan with our advice and counsel," he said at the time. Yet McCain also says that "Roe v. Wade is a flawed decision that must be overturned" and told Tim Russert he favors "a constitutional amendment to ban all abortions." The GOP ticket may want to preserve the illusion that their daughters get to do the deciding, but the GOP platform would bar these women from choosing to have an abortion, even if the pregnancy resulted from rape or incest. John McCain has pledged to appoint Supreme Court justices who would overturn Roe.

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There are legitimate reasons to differ over the morality of abortion. There is also a legitimate disagreement over the fitness of a 16- or 17-year-old to decide to terminate her pregnancy. So while the GOP position on abortion doesn't treat teenagers as grownups, it does show a growing inclination to treat grownup women as little girls. As important as the decision to end a pregnancy is, the matter of who gets to decide may be even more important. And that decision is increasingly being taken out of the hands of women and put into the hands of strangers.

In 1973, the Supreme Court decided in Roe v. Wade that the right of privacy "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." It was an announcement that women—in consultation with their doctors and subject to limitations—should be free to make this difficult choice themselves. When the court reaffirmed that principle in 1992, in Planned Parenthood v. Casey, it again acted to protect the liberty and autonomy of the women doing the choosing.

Today there is renewed doubt over whether grown women are fit to decide to abort a pregnancy at all. That is why Sarah Palin would not allow abortion in the event of maternal rape or a threat to maternal health but only with a "doctor's determination that the mother's life would end if the pregnancy continued." That is not the mother doing the deciding; it's her doctor. Presumably if they differ on this question, the mother loses.

And as we drift further down the road from Roe, it's clear we don't trust doctors anymore, either. That's why the South Dakota legislature forces physicians to read from a script before performing an abortion. Among other questionable declarations, physicians must now deliver the warnings that abortion leads to an increased risk of "depression and related psychological distress" and "suicide ideation and suicide." As Emily Bazelon has reported, most doctors delivering this warning do not believe it, as it is supported by dubious data. Nonetheless, the law went into effect in July, suggesting that legislators, not doctors, know what's best for women.

Justice Anthony Kennedy gave huge currency to the argument that women cannot be trusted with the decision to abort in his majority opinion in a 2007 decision banning a type of late-term abortion. Relying on yet more equivocal data, Kennedy lavished concern on women who regret their abortions, whose "distress" may someday lead to "severe depression and loss of esteem." It's a long road indeed from Roe when a woman's private choices about her future and her body are subordinated to Justice Kennedy's 20/20 psychological hindsight.

Which brings us to disturbing new regulations proposed by the Department of Health and Human Services—rules that ostensibly seek to protect the "right of conscience" of pharmacists and other health workers who don't want to participate in abortions. As William Saletan has argued, the current draft regulations—while an improvement upon the original—draw no explicit distinction between medical workers who refuse to provide abortions and those who oppose dispensing contraception. In these ambiguous cases the decision-maker may well be the medical-service provider herself, depending on what her own conscience permits. If these regulations go into effect, not only can your pharmacist refuse to give you the morning-after pill, he might deny you the month-before pill as well. At which point it's not just the judges, state legislatures, Supreme Court justices from Sacramento, or doctors who know better than women what's best for women. It's the pharmacist behind the counter, too.

Every time someone else in the decision-making chain gets the power to insert himself or herself and conscience between a woman and her fetus, the range of women's choices contracts. But women need not defer to anyone's "better" judgment when they pull the lever at the voting booth.

John McCain and Sarah Palin must pretend their daughters can make an autonomous decision about abortion with a little wise counsel. Yet both have also made it clear that they dream of an America in which all women—including Bristol Palin and Meghan McCain—may have a decision to make about an unintended pregnancy, but only one choice.