Anti-Abortion Legislation- What Is the Problem Represented to Be? a Critical Policy Analysis of the “Heartbeat Bills” in the United States
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Anti-abortion legislation- What is the problem represented to be? A critical policy analysis of the “heartbeat bills” in the United States. Anna Gustafsson Gender Studies: Master thesis, 30 hp Master’s programme in Law, Gender and Society 120 hp Spring term 2020 Supervisor: Sara Edenheim Examiner: Ann Öhman Abstract Since the introduction of a new type of anti-abortion legislation in the United States which bans abortions after a fetal heartbeat can be detected, women’s options regarding abortion are being limited. How “problems” are represented or constituted in legislation shows that problems are time, place and context dependant. By using Carol Bacchi’s “What’s the problem represented to be?” approach to policy analysis, problem representations and subjectification effects in the heartbeat bills were identified. The problem representation of abortion as “lack of information” emerged as the central problem representation and the subject positions that were made available limits women’s choices regarding abortion. Fetal rights emerged as the core of the argumentation in the legislation, excluding women’s rights. How the problem of abortion is represented to be, the subjectification effects and the way rights are used and argued for in anti- abortion legislation shows how they effectively limits women’s abortion choices. Keywords: anti-abortion legislation, fetal heartbeat, fetal rights, subjectification effects 2 Table of contents Introduction…………………………………………………………………….4 Background……………………………………………………………………………….........4 Purpose and research questions………………………………………………………………..5 Theory...................................................................................................................7 What’s the problem represented to be?.......................................................................................7 Rights..........................................................................................................................................9 Subjectification.........................................................................................................................10 Method................................................................................................................11 Material.....................................................................................................................................14 Context...................................................................................................................................14 Previous research...............................................................................................................15 Analysis...............................................................................................................18 WPR..........................................................................................................................................18 Rights........................................................................................................................................34 Subjectification effects in the “heartbeat bills..........................................................................34 Discussion............................................................................................................35 Conclusions.........................................................................................................37 References...........................................................................................................38 3 Introduction Background. It is a crucial time in American history when it comes to women’s rights. When Donald Trump won the presidency, anti-abortion Republicans saw the once in a lifetime opportunity to finally reverse the 1973 landmark Supreme Court case Roe v Wade and make abortions illegal in all fifty states. When Trump appointed two conservative-leaning judges on the Supreme Court, several states saw their chance to introduce legislation to ban abortions as soon as a heartbeat can be detected in the fetus, which is usually around week six, before most women even know they are pregnant. These so called “heartbeat bills” have currently been introduced in about 20 states and passed and signed in five of those states: Georgia, Kentucky, Mississippi, Missouri and Ohio. However, they are temporarily blocked by federal courts waiting to go to the Supreme Court. If the Supreme Court decides to hear one of the cases, a now conservative leaning Supreme Court might slowly make incremental changes to the abortion doctrine or even reverse Roe v Wade altogether. A ban against abortions will not only affect millions of women’s right to choose not to continue with a pregnancy but the potential closing of the federally funded organization, Planned Parenthood, which is the largest abortion provider, and also other public and private clinics will affect women’s access to breast exams, birth control, and prenatal care and could possibly have the largest effect on millions of minority women and women living in poverty in the U.S. Since it would be constitutionally difficult, due to the First Amendment’s guarantee of separation of church and state, for the Republicans to use religious arguments in legislation the arguments that are frequently used in anti-abortion legislation are usually medical, moral, or based on the right of the fetus but the arguments have been highly criticized as being based on pseudo medicine and discrimination against women. The right of the woman is rarely mentioned while the right of the fetus is prioritized which not only raises the question of women’s autonomy and right to her own body but ultimately becomes a question about gender discrimination. Since the arguments that are used in anti-abortion legislation often has religious undertones and goes against what is considered to be accepted science of reproductive healthcare, it is not only relevant to critically analyze how arguments are constructed in legislation that oppose abortion but it becomes crucial because of the effects anti-abortion legislation will have on women’s lives and especially marginalized women. 4 Purpose and research questions. To analyze this kind of legislation, it is relevant to turn to critical policy analysis and especially to Australian historian Carol Bacchi, who has provided the methodology my research questions are based on. According to Bacchi, one of the most common assumptions about policies and legislation is that they are a result of or a solution to a “social problem” outside the policy making process, when instead the “problem” is created within. Policies have a cultural dimension to them, and they are also a cultural product, produced in a historical, national or international context. Since the assumption is that the purpose of polices is to solve social problems so how does a problem achieve the status of “social problem”? Bacchi argues that an issue achieves “social problem” status differently depending on place, time and context, therefore social problems are not “already there” natural phenomena (Bacchi, 1999, p. 148). The issue of abortion has taken on different problematizations throughout history. During most of the nineteenth century in Britain and the United States abortion was a common method to control fertility and therefore not considered a “problem”. When abortion was criminalized in the later part of the century, due to concerns of a decline in population growth (mainly the threat of Catholics outbreeding Protestants), abortion became a “criminal problem”. In order to protect their field and stop unregulated practitioners from working in the childbirth field, which lead to the exclusion of midwives, the medical community played a role in producing abortion as a “medical problem”. However, abortions still occurred which led to a liberalization of abortion laws. In the 1973 supreme court case of Roe v Wade, abortion was still problematized as a medical problem and the legislation is not concerned so much with the right of the woman as it is concerned about the “intrusion of the state on physician’s autonomy” (Kellough, 1996, p. 72, as cited in Bacchi, 1999, p. 155). Simultaneously, the problem of abortion achieved a separate status as a “moral or religious problem” and later becoming a problem of “the status of the fetus”, which is based on the legal personhood or rights of the fetus. Therefore, the modern anti-abortion movement is mainly basing their arguments on the problem representation of abortion as a problem of the status of the fetus, while feminists are basing their arguments on the problem representations of abortion as a right of women, especially a right to privacy. However, claiming rights are problematic because if women are claiming privacy rights, there are risks attached to it in the way that public funding for abortions will be removed due to a private right cannot ask for public funding (Bacchi, 1999, p. 159). Since the concept of rights is central in my research, I’m using the political theorist Wendy Browns criticism of rights as a complement to Bacchi. Wendy Browns 5 (2000), criticism of rights is based on the ideas that claiming rights are essentially paradoxical. When women are claiming universal rights, it opens up for other groups for example, fetuses, husbands and fathers to claim rights that they have not had before or to expand their existing rights. On the other hand, when women are claiming rights based on their gender it tends to trap women inside the norms of femininity