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Does it Matter if Abortion Is Legal?

A new book warns that even with Roe v. Wade intact, the procedure is still effectively banned in some places.

Tim Sloan/Getty Images

In 2013, 22-year old Beatriz Garcia found herself in the middle of the global abortion debate, a symbol and a lightning rod for what happens when a woman who lives in a country with a total abortion ban faces a life-threatening pregnancy. Beatriz was from El Salvador, which has one of the harshest and most notorious abortion bans in the world. She suffered from lupus nephritis, an autoimmune disease where the body’s immune system targets its own body tissues, and her first pregnancy almost killed her. Doctors warned Beatriz of the danger of having another baby, but when her son was eighteen months old, she found out she was pregnant again. Making matters worse, the fetus was anencephalic, meaning it did not have a brain. If it did not die in utero, it would die shortly after birth. Faced with the prospect of dying and leaving an infant son behind for a fetus with no chance of survival, Beatriz and her doctors agreed that the safest course of action was what they called an “interruption,” a euphemism for abortion. However, the hospital’s lawyer said that interrupting the pregnancy would violate Salvadorian law. An international firestorm ensued.

Beacon Press, 216 pp., $27.95

Michelle Oberman, a professor at Santa Clara University School of Law, opens her new book Her Body, Our Laws: On the Front Lines of the Abortion War, From El Salvador to Oklahoma, with Beatriz’s story. The case gives grounding to this ambitious book, which looks at the effects of abortion restrictions in Latin America and the United States. Oberman has spent her career studying the murky ethical waters of pregnancy and motherhood. She’s done research about pregnant women who abuse drugs and written two books about mothers who have killed their children. Her mission with this book is not to argue whether or not abortion should be legal, but to interrogate the impact of laws that restrict it. 

This might seem like a surprising quest for a liberal, Jewish, pro-choice law professor from California—as Oberman repeatedly notes—but she’d seen how “abortion’s legal status didn’t make much of a difference” for many of the women she studied in El Salvador and rural parts of the U.S.— women who are poor, ill, and marginalized. To them, the polarized, zealous rhetoric around “choice” and “life” was mostly irrelevant. Just because abortion is legal doesn’t mean it’s accessible, and just because it’s illegal doesn’t mean it’s inaccessible. Which begs the question: Does it matter if abortion is legal?

When a local women’s group found out about Beatriz’s case, they secured her a team of lawyers who petitioned the Salvadorian Supreme Court for permission to terminate the pregnancy. Local newspapers published editorials, government agencies threw in their two cents, and international organizations, including the UN and Amnesty International, took notice. Everyone had an opinion. Beatriz and her son went into hiding to avoid the TV cameras staked outside their home. 

 “For those who opposed the abortion law, her case was the utmost example of the law’s absurdity, and a perfect case with which to challenge the ban,” Oberman says. “For those who supported the ban, Beatriz’s case tested the moral and legal integrity of their position that life begins at conception.”

By the time the government reached a decision, fifty-five days after her initial petition, Beatriz was almost seven-months pregnant. The medical panel, which did not include a high-risk obstetrician, determined that Beatriz was not quite close enough to death for an abortion to be justified. The perverse catch was that the longer doctors waited to perform a cesarean, the more complex and risky the procedure would be and the greater her chance of permanent organ damage. At twenty-seven weeks, Beatriz started having contractions and doctors delivered the baby, which died five hours later.   

Beatriz’s story exemplifies the cruelty of total abortion bans. She endured months of profound psychological and physical trauma while the media debated her most intimate needs and government gambled with her life—she was lucky that she even survived. What was gained by any of this? The purpose of El Salvador’s abortion ban is to enshrine a religious belief into law, consequences be damned. But laws that ignore consequences in favor of making a statement represent, as Oberman puts it, “a fanatic’s position.”

One hoped-for outcome of legal abortion bans is that they reduce the number of abortions. But no one actually thinks that abortion bans get rid of abortion—or if they do, they are ignoring mountains of evidence to the contrary. As Oberman points out, abortions still happen regardless of legality, and in fact, abortion rates in countries with the most restrictive abortion laws far exceed countries with more liberal laws. In El Salvador, there are tens of thousands of illegal abortions every year.

If abortions are crimes, then who is the criminal and how are they caught? Abortion pills have made these questions trickier. A botched surgical abortion is easy to spot; Coat hangers and cassava sticks perforate uteruses. However, a medical abortion looks a lot like a miscarriage, and the pills (with varying degrees of efficacy and safety) are accessible on the internet. In some countries that ban abortion, women can simply walk into a pharmacy and buy Misoprostol, an abortifacient drug that is also used to treat ulcers. On the other hand, while pills have made clandestine abortions safer, easier, and more difficult to detect, they can still have side effects. Complications from illegal abortions are the leading cause of death for young women in Latin America. 

If women are self-inducing abortions with pills, then doctors aren’t the criminals, as most abortion bans are designed to make them. The criminals are the women. Moreover, the police need help from doctors to catch them. This puts doctors in a compromising position, with doctor-patient confidentiality on one side and the law on the other. It also asks them to distinguish between an abortion and a miscarriage, and evidence is hard to come by, especially in the first-trimester. Between 2001 and 2011, El Salvador investigated one hundred and twenty-nine women for abortion-related crimes, mostly “suspicious” miscarriages. Forty-nine women were arrested, and thirteen were convicted and sent to prison. That’s thirteen too many. Oberman discovers that it was doctors working in Salvadoran public hospitals who turned women into the police, while private doctors, who served wealthier women, did not report their clients. The result is that abortion is only functionally illegal for the patients who cannot pay for privacy.

In the second half of the book, Oberman turns her lens on Oklahoma, where abortion is legal, but people wish it wasn’t. Since the 1973 Roe v. Wade decision that established abortion as a constitutional right in the U.S., Oklahoma, like other states, has dedicated fathomless amounts of time, money, and energy to establish as many limits to that right as possible. Oberman feels like a fish-out-of-water there, writing about the oddness of seeing Christian references in “cliched billboards and bumper stickers” and visiting a shooting sports store filled with an “astonishing array” of taxidermy.

“Images of fetuses became part of the landscape, like American flags or the crimson and cream of the University of Oklahoma Sooners,” Oberman says. “The pro-life messages were so ubiquitous that they faded into the background. But it’s not a tranquil background.” Oberman listens to State Representative Mike Reynolds tell her about his crusade to save “unborn children,” and make factually inaccurate claims about women’s bodies. When Oberman asks him about the purpose of abortion law, he responds that it’s to send a moral message about the wrongness of abortion. The details—like whether there should be exceptions for rape, incest, maternal life—and how the law would be enforced, were less important to him.

After getting an earful from politicians, Oberman visits Birth Choice, a crisis pregnancy center that operates a shelter for pregnant women and offers mental health counseling, drug abuse treatment, and vocational training to its residents on the condition that they carry their pregnancies to term. While the founders of Birth Choice are opposed to abortion, they claim their mission is to support vulnerable, pregnant women, rather than shame them.  However, abortion laws aren’t the only policies that impact whether or not a woman decides to keep a pregnancy: so do paid family leave laws, affordable medical care, educational access, living wages, and food security. And still, there are plenty of women who want to end pregnancies simply because they don’t want to have a baby, and no amount of maternity leave, vocational training, or free diapers can change that. And that’s their right. 

Her Body, Our Laws emphasizes that the issue of abortion legality is not black and white: Other factors come into play in determining how abortions happen and who is able to get them. “Of the many things dividing the United States, none seems more salient than the divide between pro-life and pro-choice forces. At the heart of the dispute is the assumption that, if Roe is reversed and abortion becomes illegal, things will change. We talk about banning abortion as if we all understand how things will change if abortion becomes a crime.”  We don’t.

If Roe falls—which it well may—it will be up to the states whether abortion is legal. Women in states with bans will have to travel to access abortion care, which means that it will primarily be available to women of wealth and privilege. Furthermore, it stands to reason that women will be thrown in jail for abortion-related crimes, because that’s already happening. Hundreds of women in the U.S.—people like Bei Bei Shuai, Purvi Patel, Anna Yocca, and Jennifer Whalen, to name a few—have been charged with crimes relating to pregnancy or abortion over the past few years.

Abortion bans are about moral truth for those who oppose abortion. For people who support legal abortion, legalization reflects the moral truth that women are people, and that their rights aren’t sublimated just because a sperm happened to fertilize an egg. The flip side of understanding the impact of abortion bans is to understand the impact of legalized abortion, which is largely responsible for the social gains American women have made over the past four decades. Women deserve physical safety, and  freedom from the fear of having their health arbitrarily imperiled by the state or being jailed for having a miscarriage. But they also deserve more than mere survival: Women deserve education, the opportunity to work, and legal and social recognition of their personhood. None of this is possible without legal abortion. It’s not only the negative consequences of abortion bans that matter; the positive impact of abortion access matters, too. But only one side of the debate considers those consequences worthy of discussion.