At least one in four American women will have an abortion in her lifetime, and the Supreme Court deemed it a constitutional right in Roe v. Wade nearly five decades ago, yet the stigma is such that we’re unable to have a civil conversation about the topic. In this edition, co-hosts Jon Amarilio and Chastidy Burns are joined by Katie Watson, a lawyer, professor, bioethicist, and the author of “Scarlet A: The Ethics, Law and Politics of Ordinary Abortion.” Katie makes the argument that we need to start having real conversations about ordinary abortion because it impacts millions of Americans, and can help us unpack many other social issues, including civil rights, religion, socioeconomic stratification and more.
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The Scarlet A Edition
Jon Amarilio: Hello everyone, and welcome to CBA’s @theBar, a podcast where young and young-ish lawyers have unscripted conversations with our guests about legal news, events, topics, stories and whatever else strikes our fancy.
I am your host Jon Amarilio of Taft Stettinius & Hollister and co-hosting the pod with me today is Chastidy Burns of the Cook County Public Defender’s Office. Hi Chastidy.
Chastidy Burns: Hi.
Jon Amarilio: So Chastidy, we are joined today by Katherine Watson, Associate Professor of Medical Social Sciences, Medical Education and Obstetrics and Gynecology at Northwestern University. I am really proud of myself for getting all that out in one sentence.
Professor Watson is also a lawyer who held a federal clerkship and practiced public interest law before joining Northwestern’s faculty and completing fellowships in clinical medical ethics and medical humanities. She currently teaches law, ethics, and humanities to medical students at Northwestern. Katie, welcome to @theBar.
Katie Watson: It’s a pleasure to be here, thank you.
Jon Amarilio: So Katie, we are here to talk about abortion generally and your new book specifically entitled ‘Scarlet A; good Hawthorne reference, The Ethics, Law and Politics of Ordinary Abortion’. The book has been appropriately well-reviewed as “revolutionary” by the New York Times. It really seems very well-timed. Abortion is always or at least almost always a topic at the forefront of our country’s culture wars, and the current seating of new Supreme Court Justice Brett Kavanaugh brought it even more to the fore.
Opponents of abortion hope he will be the deciding vote on that court to either overturn or undermine the court’s abortion jurisprudence and by the same token, those in the pro-choice movement fear that Justice Kavanaugh will do exactly that.
Quick disclaimer for our audience for purposes of this episode, I at least will be using the terms pro-choice and pro-life to describe the opposing sides of this debate. I know from reading Katie’s book that that nomenclature is really loaded with meaning, but I think it’s familiar to our audience and just useful shorthand, otherwise I will be stumbling over my words the whole time.
Katie, having said all that, after reading your book there is so much to take away from it, but really the thing — the broad point that I took away from it was that abortion is just a prism for so many other social issues, women’s issues of course, that’s I think how I always thought of it, but civil rights generally, racial tensions, religion, socioeconomic stratification, pretty much everything, can you take us there, I had no idea.
Katie Watson: Well, that’s what I find so interesting about the topic. I think it’s easy to think of like, oh, you write and think about abortion these days, that’s a niche topic, that’s a small topic; big in the news, but it’s a singular topic, and when you spend time with it what you realize is exactly what you just noted, it’s incredible depth and how it does become a prism.
It becomes almost a Rorschach test. There are so many views. And if you are someone who is interested in culture, in politics, in power, in relationships, in social change and meaning over time, it is incredibly a rich area of study that I am never bored and I never feel like it’s a narrow area, and it’s also one of incredible impact on individual’s lives. The decision or the experience of whether to become a parent or not, whether to continue a pregnancy or not, our sexual relationships, our family arrangements, it has incredible direct impact.
And then it has incredible cultural import and political import. So as both an academic, as a lawyer, and as just a citizen of the United States, I can’t think of a richer topic practically to study.
Jon Amarilio: Yeah, it seems to have a little bit of everything. What originally brought you to this topic?
Katie Watson: That’s so interesting. I have always been drawn to the relationship between bodies and the state; what can the government tell you you must do or you may not do with your body.
And so when I was in law school at NYU, I had a Fellowship in Civil Liberties and there were, I think five at the time, it was called a Hays Fellowship, but they were in certain subject areas and I had applied for the one in what we could then call reproductive freedom, because I was always very interested — I was just drawn to it, and I think as a woman I just grew up — I am from Indiana, I didn’t grow up in a particularly radical environment, but I think as a woman it was always just very clear to me that if the government can force me to bear a child against my will, I am living in a slave state.
I just was always very clear that that would be a commandeering of my own body, and even before I had words for it, it was just something that was just obvious that can’t be right. That I understood it from what I now understand to be a perspective of pluralism; I was raised Catholic, I was very clear about religious differences, but when you are a civil libertarian, part of your perspective exactly is tolerance of religious differences and protecting people’s ability to raise their families and govern their own bodies and lives in accord with their religious rights and beliefs and figuring out the nuanced places in which there are limitations to that and of course it’s not infinite.
So I think I approached it just at a gut level as an issue of sovereignty, individual sovereignty in relationship to the government and an issue of religious freedom and pluralism.
So my interest began when I wasn’t — began just as a person and then when I was in law school applying for this fellowship, it felt really right and I was very fortunate to get it.
And then when I did that fellowship, I did two internships as part of it in my third year of law school, and one was at the Center for Constitutional Rights, where I got to contribute to a brief in the Casey Case, the 1992 case that ended up affirming Roe, but everyone was afraid would reverse Roe, and my section of the brief was helping to research the burdens on poor women of the waiting period restrictions; the travel and the other economic costs, I call it the abortion tax, but the additional cost of the hotel and childcare and missing work and all this stuff. So I was already steeped in that, what we now call reproductive justice perspective of like hey, this affects different people differently and we need to attend to that.
And then my other internship was at Montefiore Hospital in the Bronx working with a clinical ethicist and working in the obstetrics unit on an issue of fear of sex selection abortion, where some of the — there was just concern about different immigrant groups and it really became a form of discrimination in obstetrics care potentially about anticipations or stereotypes.
And so I was just steeped in it from the beginning and then my career path to be in different places and it’s interesting that as a bioethicist is when I really returned to the issue deeply.
Chastidy Burns: So Katie, you mentioned that as a woman you got very interested in reproductive rights and studying that and it’s funny because that’s also how I think about abortion and abortion issues, as a woman this is how I feel about it.
But then you also have, Jon is also very interested in the topic and he thought that your book was riveting. So how do you frame the conversation about abortion and you emphasized the importance of everyone talking about it and feeling comfortable with talking about it and relating to it, how do you frame that from a man’s perspective and make men feel more comfortable with talking about it or people who don’t feel like they have a direct connection to the issue?
Katie Watson: Well, there are two things Chastidy. I think that’s a great question. One is no woman ever got pregnant by herself, all right, there’s — unless it’s an anonymous sperm donor from a sperm bank and biologically I guess it’s true she can get pregnant by herself, but there is not a partner there. So with respect to that, let’s bracket that that the vast majority of experiences is people having sex and they either intend to become pregnant or they don’t or they are open to pregnancy.
I mean there are plenty people out there who are that third, whoops baby, who were not intended and were absolutely welcome. So we don’t want to say unintended is the same as unwanted, but people are having sex and they are either open to pregnancy or they are not, and there is two parties in that relationship. And yet somehow it’s become a woman’s issue.
Well, why is it a woman’s issue; we are all lawyers, because legally it is and must remain a woman’s issue. It’s an individual right for exactly that bodily integrity route that you and I perhaps just intuitively, we are like, I am sorry, what, someone is going to tell me whether I — okay, if that’s not my moral vision. If I think it’s morally acceptable to terminate a pregnancy, I will have to — my body will be used in the service of the morals of strangers? I am sorry, like help me understand this.
But if we were ever to be in opposition it would be because we slept with a man, and so he is a partner, and if we have that baby he will have an emotional role or not, he will have a social role or not, he will have an economic role or not, his life will be altered in some way even if it’s that he has to live with that he is the guy who walked away and disappeared. And we will be in what might have been intended as a one-night stand will be a lifetime co-parenting relationship. I mean the idea.
So we have taken this legal idea that it’s a woman’s right, which is absolutely accurate, and then imported it into our social conversation. Although it does not represent the majority experience sexually, but also the number is very high. It’s in the high 80s. I am going to say 86% of all abortion patients are dating or married to the man with whom they became pregnant.
So we go from abortion is a woman’s issue, to abortion is an issue of sex, and that’s a way of like — often people try to paint it as like oh, it’s these promiscuous women, or it’s just about sex, people want to have sex. It’s like well, A, they do it turns out, but B, sex is very often taking place in the context of a romantic relationship, married or unmarried and dating.
And so if we think about abortion as a natural consequence of dating and marriage, people who are married, the average birth rate in the US is right now about 1.8, 1.9 children per couple, so let’s just round up to two, married people are having sex more than twice in the course of their marriage typically, right? Married people are having sex for the same reason unmarried people are having sex, right?
Jon Amarilio: Are they? I don’t know, I always hear the opposite.
Katie Watson: Well, fingers crossed, let’s not generalize too much, but like intimacy, pleasure, right? So this idea that unmarried and married sex are so radically different, they might be morally or religiously, but like people have sex it turns out and so unintended pregnancies are always going to be an issue of couples and of families of saying, can we afford another child, is this the right spacing? How does this work for our family unit, right?
59% of women having abortions already have children, one or more, and so this idea that it’s like, oh, they didn’t know they were going to get pregnant, how could this happen, right? Like this is familiar. These are family decisions.
So to your first question about men coming in the conversation, I think it’s — we need to — the public toxicity has led to this private silence and so all we do is import these legal frameworks or this political toxic debate and just substitute it for dinner table conversation. So I think bringing men in is opening and being like hey, this affects you too, you don’t get to make the final decision.
But people are making — most people are making these decisions in partnership with each other, and the same thing that made you be on the same page as a couple; shared values, shared visions of the future, shared goals and your empathy for one another will probably lead you to a shared decision.
You might be at loggerheads, you might not. There is always people who — couples who don’t agree and she is going to make the final decision, but most couples are doing this in consultation, and even when the patients report they are not in a romantic relationship, 60 some percent report that the man with whom they became pregnant knows about it and supports it — the high percent support it. So even when it was the proverbial one-night stand, a lot of them are still filling their partner in.
Jon Amarilio: And that’s one thing that really surprised me and really changed my thinking after reading your book, which was I always, I will just put it on the table, I am pro-choice and always have been as long as I can remember, but I always thought that men having a strong opinion on this issue was somehow invading the space of woman, because it was a woman’s issue and the men who had strong opinions were pro-life and they were trying to impose their morals and their opinions on the woman. So I always thought it was really my place to take a backseat on the issue and support it, but not vocally, not openly.
One of the things that really stuck out from your book was a conversation that you had with a young woman and she described how she had been on several dates and the men that she had been on the dates with had said something to the effect of, and I am paraphrasing here, but I fully support your right to choose if we were to have sex and you were to get pregnant, do what you have got to do.
Katie Watson: And she worked in abortion research, so it would come up when they would say, what do you do, and then she would tell them and they would say, oh yeah, it’s a woman’s body, it’s her right to choose.
Jon Amarilio: Right and I always thought of that as something you would say as an ally, but that’s not quite how she felt about it, right?
Katie Watson: Yeah, it was funny, she said to me like, and I know it’s just what they have been trained to say, but it just bugs me, and I just felt officially old, because I felt like they sound really feminist or whatever, they are being supportive. I said well, what about it bothers you, and she was like — and she couldn’t articulate. She just is — and that’s what she said, that’s what they have been trained to say, like she was trying to be sympathetic.
And I was like no, no, no, let’s not let this go, what is it that’s bothering you, what is it? And when we finally dug and dug and dug, she finally was able to use this word and I thought it was so profound to me. She said it’s lonely. And I said well, okay, back up, like do you think that if you got accidentally pregnant and you chose to have the baby they would — when they were saying like, I completely support your decisions, those are your decisions, if you chose to have a baby, they would completely support you?
And she just burst out laughing, like so loudly in this coffee shop, she’s like no, no, of course they wouldn’t, they would be freaked out.
They’re assuming I’m going to have an abortion, and so, when they say, it’s your body, it’s your choice, it’s all up to you, what she heard was a message of abandonment, like I’ll enjoy sex, I’ll enjoy our relationship and we’re young and maybe it’ll go forward and maybe it won’t, we don’t know what the future holds. But if we were to become accidentally pregnant, I know you’ll take care of it and I won’t get in your way, and that was an experience of abandonment, and when my book I kind of talk about, what would be the other thing to say that didn’t feel like abandonment and I sort of experiment with the sort of way talking about moral responsibility also left her with the moral responsibility for the decision.
It’s not just like, oh, the money or go alone, it’s the idea of like what would actual partnership look like and it would be both moral and practical. What if they said something like, yes, abortion can sometimes be the right thing to do and I would be there for you and whatever way you wanted, if we were found ourselves in that situation, right?
For some woman would say, we don’t actually know each other well, I want to go with my best friend, thank you very much. Others would be like, yeah, let’s do this, we got in this together, let’s get out of it together; in the same way that the modern gender equality spirit of contraception of like let’s have a conversation about this and what would be the best contraception and let’s share expenses or parenting of like we chose to have a baby together. We’re going to try to split parenting and the less fun parts of diaper changes and staying up late together.
Why are we going back on our traditional gender norms with abortion? It’s because it’s uncomfortable and politically messy, so isn’t that easy? And we were laughing that they get to sound really like liberal and progressive and down with this message just like — and if you get accidentally pregnant, good look, and that’s not the intention, that’s not the action.
Jon Amarilio: Well, I mean, we get the benefit of most double standards, I don’t go with that fact.
Katie Watson: Right. So when you say you take the backseat, Jon, I want to say hop in front, but in the passenger’s side.
Jon Amarilio: Yeah.
Katie Watson: Right? Like I love the Women’s March. I’ve been to the Women’s March, I love it. What if it was the couple’s march? What if it was the family march, where a lot of people did bring their partners and friends?
But, like, I have a feeling that if men felt like abortion was their issue on the Pro-Choice side with the same passion that those who seem to be driving the Pro-Life Debate feel, we wouldn’t have to be so worried about the political and legal access to abortion.
Jon Amarilio: So, since we’re talking about the man’s perspective and other perspectives, one of the things that impressed me so much about your book was what a deep dive you did in the Pro-Choice Movement and the different motivations people on that side of the debate have are those sides of the debate, there’s really — there’s so many more nuances to this than I thought your Pro-Choice.
When you were exploring those other issues and I could tell really making an effort to understand where they were coming from on many different levels, what surprised you the most when you were doing that research?
Katie Watson: I think just the nuance in the spectrum, so Pro-Choice is a legal position that says you think people should have a choice, abortion should be legal. It says nothing about whether you think people ought to have abortions ever, never, sometimes, what circumstance, who, and we have this legal conversation, that’s a shorthand exchange.
I’m Pro-Choice, you’re Pro-Choice, great. We think we know something about each other and we do at some basic level, but then the nuance that follows, do you think people, it’s moral or ethical for people to have abortions? Who, in what circumstance, when in a pregnancy?
People have such to it, whether it’s ethical for you versus other people, and we just, we don’t go further in those conversations and writing this book helped me go further in those conversations and hear more and say, great, you’re Pro-Choice, what do you think about abortion?
And that would just open this whole other conversation, that was not a conversation people were often having and people would surprise me with their answers. And so, there’s an obstetrician I know who has fought for her patients and for women in general to have access to abortion but then when I open that, it was almost like she was whispering she’s like I don’t know if abortion is ethical.
I mean, I’ve had a kid, I mean, it’s just, it changes your view, and I just — I’m not here to tell anyone else what to do but — and I would have never guessed in a thousand years. And similarly, I know a physician who described himself as Pro-Life and is very active in the Pro-Life Movement very strongly, and for years I really respect him and for years I made an assumption about him and it was only like eight years after discussing this with him that I said, so do you want abortion to be illegal?
And he said, oh no, then we’d be back to the era of septic wards and those were the hospital wards where women who had unsafe abortions had life-threatening infections. He goes, no, no I don’t want abortion to be illegal. I want it to be unnecessary, and I was like, gosh, I’m an idiot. We’ve been talking about your perspective on the morality of abortion and I made an assumption about your perspective on the legality of abortion.
And so, for me, I draw this little grid in class about abortion, constitutional right, yes or no, we have a constitutional conversation. Abortion Ethical Act, yes or no, and it’s not that our ethics don’t influence our Constitution analysis or vice versa but the clarity which conversation we’re having kind of exposes the nuance of people who are anti-abortion and pro-choice, which turns out my colleague, I didn’t understand that and my other acquaintance who is Pro-Choice but a little more anti-abortion than I realized and I just think that’s so interesting, right?
And so, if you’re against, if you think abortion is immoral, I respect that point of view. If you want to then make it illegal, it was a very different kind of conversation either about constitutional law or about legislation and morality laws. The same way that we might have a conversation about gay rights and say, well, if you think same-sex partnerships are immoral because of your religious or secular moral reasoning, that’s different than talking about constitutional rights in the Equal Protection Clause, right?
And I think in abortion because our public conversation, the law has so imposed itself on this conversation and I guess not inappropriately because people have taken their conflicts to the courts and what are you going to do, but we’ve allowed that to substitute again for this private conversation.
So for me opening up that nuance, it sounds perverse to say it was really fun, but I’m really drawn to spaces of silence where it’s like, gosh, this is affecting almost everybody who ultimately has sex in their lives, because they — has heterosexual sex, let me be clear, because same-sex partners do not get accidentally pregnant unless they’re sleeping with some of the opposite sex but anyone who’s had heterosexual intercourse at some levels had to kind of think about this issue.
And yet we’re not talking about it and to me that cultural tension of like so many people are in that space where they would have to at least think about it if not experience it and no one is talking about it or a very few people are talking about it in a robust, honest, thoughtful way is just like, wow, what’s going on there, that’s fantastic.
Chastidy Burns: I think that’s really interesting too and it’s what comes after the I’m Pro-Choice, but part is where you really get to know somebody, right?
Katie Watson: Yeah.
Chastidy Burns: I’m Pro-Choice, but I wouldn’t do it, you know what I mean.
Katie Watson: Right.
Chastidy Burns: And so when you think about the woman feeling lonely because the boyfriend says your body, your choice, I think of detachment as well because those are just political talking points. They’re not really getting at how he really feels about it or him trying to get it how you really feel about it, you know what I mean.
And I wonder if that comes from something else you talked about in your book which is that we don’t really talk about the ordinary nature of abortions. We talk about these big scary ones that go wrong or people – or the late term abortions that scare everyone and we’re not talking about how common they are and how it is an issue that affects more women than we think.
Katie Watson: Yeah, the subtitle of my book is /The Ethics, Law and Politics of Ordinary Abortion’ and what I mean by “ordinary abortion”, we do this in bioethics too, it’s the neon light cases, it’s the extreme cases, and they’re fascinating and they’re educational, but supporters of abortion access, we’re going to tell you about 12 year olds and rape victims and people with horrific fetal anomalies and opponents of abortion I am going to talk about what they would think of as abortion abuse of like someone who had more than one or has it later in a pregnancy or a particular procedure they object to.
And — but even when you — and those cases are all real but when you add them up that collectively they represent about roughly 5% of all abortions and I’m interested in the 95% in the middle that are for reasons like I can’t afford to have a baby. This would be dramatically disruptive of my current caretaking responsibilities, my education, my career. I’m having trouble with my partner or husband.
All these like “ordinary reasons” which tell you about that individual’s perspective on the morality of abortion, right? If you think that the moral value of the embryo is extraordinarily high, only the most dramatic reasons would justify ending the life of that embryo.
And I use the term “embryo” because 80% of all pregnancy terminations happen in the weeks and which just developmentally if you’re an anatomist, it’s an embryo not a fetus. So even when we talk about the moral status of the fetus, we do about 20% of abortions. Is that a distinction with a difference? That’s up to you.
But when I say the word “fetus” I have a very different image than I do when I say the word “embryo”, right? And so, that’s not an accident that the word “fetus” has become the placeholder, that’s second trimester.
80% of them are happening in the first trimester, right? 88% in the first trimester and then the embryo week is week 11, we make a turn there and atomically where all the organs are in place, that’s what marks that for an animus.
So that’s telling you that those people think that the moral status of the embryo that they are carrying is such that they are entitled to make that decision for those set of reasons. And I just find that fascinating and bioethics, the revolution in medical ethics is not going from the paternalistic doctor knows best, doctor knows everything to the view that patients are moral agents that take medical facts and filter them through their own personal values, religion, life circumstance, and then make the best medical decision for them. And it may or may not be what the physician recommended, right?
And I’m trained as a bioethicist to respect patients as moral agents and say, well, here’s the spectrum within which you get to work, right? And there’s some things that are just out of that spectrum and the physicians and hospitals aren’t going to do.
But within that spectrum, you see all sorts of different choices in the same circumstances for all different reasons, right? And so, I don’t know why one in over age 45, one in three American women has had an abortion. Under age 45, if the 2014 statistics hold for women 15 to 44, one in four expected to have an abortion.
I don’t know why I wouldn’t as a bioethicist respect the moral reasoning, respect their moral agency of the women who end those pregnancies in the same way that I would respect the women who have unintended, unwanted pregnancies, who really don’t want to have a baby but continue them because of their moral beliefs.
Jon Amarilio: So that raises an excellent point. Unfortunately, we have to take a quick break but we’ll come right back to it.
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Jon Amarilio: And we are back. So, Katie, when we left off we were talking about patients as moral agents and how complicated the decision-making can be and —
Katie Watson: May I just interrupt to say it could be very simple for some people and what I think is so interesting is a study that asked people if their abortion decision was very easy, somewhat easy, neither easy, nor difficult, somewhat difficult, very difficult and that people were spread all over the spectrum. And that’s another thing that you never hear anyone saying. My abortion decision was very simple.
Jon Amarilio: Well, because they think that almost makes them sound callous.
Katie Watson: Callous, to be casual.
Jon Amarilio: It’s supposed to be hard.
Chastidy Burns: Yeah.
Katie Watson: So that’s another master part, it’s supposed to be really hard that abortion. We’ve all heard abortion is always a very difficult decision and it’s followed usually by but it has to be illegal right, and this idea of difficulty is almost a way of acknowledging; oh, some people think this is terrible so I really struggled.
And some people really struggle and other people are very clear. I don’t think the embryo has a moral status that prevents me from doing this, I’m very clear on my values, I know who I am, I know what’s right for me and nobody loves it who wants to have any medical procedure they don’t need to have even just at a base level but that it’s not always very difficult. So I’m sorry to interrupt.
Jon Amarilio: No. It’s a good point.
Katie Watson: But I learned that from my research and I just thought that I was like why — why is this news to me?
Chastidy Burns: I like that you talked about that in your book and about how there are positive aspects of someone’s life that are enhanced from actually making that decision and we don’t talk about that, because it seems appropriate.
Katie Watson: I took charge of my life and I took care of me. I mean whatever their takeaway is, I am open to all versions of those experiences. I want patients to tell me what their experience was versus a master plot that tells them what it ought to be and if they had a different experience, they should just be quiet and shameful that they didn’t have the right experience.
Jon Amarilio: Right. So that conversation reminds me of one of the stories that’s in your book, which is of a doctor who worked at two clinics and she goes to work one day and there is a patient that the nurses tell her is being particularly difficult, crying, seems distraught. She goes in and she recognizes the woman who is sitting on the gurney, because that woman was a regular protester, an anti-abortion protestor at the other clinic that the doctor worked at.
And the woman told the doctor that she believes that abortion is murder and that it should be illegal, but because it’s not and she is kind of in a pinch and she is different than all those other women who get abortions, she is going to go ahead and go through with it. And then, sometime later, not too long later, after the abortion is performed, the doctor sees that woman back on the protest line at the other clinic.
I think your reaction in the book was much more emotionally mature and considerate than mine was when I first heard that.
Katie Watson: What was your reaction?
Jon Amarilio: Outrage, hypocrisy, how can she separate herself from her own actions like that, why does she consider herself to be different than all those other women who get it, like why is she making excuses for herself and not putting herself in the shoes of all those other women. And my jaw hit the floor when I heard that story, I mean probably shouldn’t have, but it did.
Katie Watson: We don’t talk about it, yeah.
Jon Amarilio: Yeah. How did you absorb that story?
Katie Watson: Well, I had — so I never shared an anecdote in the book that I hadn’t heard more than once, and I don’t mean the same individuals, but like to me, that story really surprised me, and I had heard it several years ago and then I started hearing from other physicians who provide abortions stories about treating protesters.
And I thought oh, this is a thing and I started asking people that, and they are like, oh yeah, at some point in your career you end up treating someone, and it’s very — it’s a common experience for physicians who provide abortions to have some patients start the appointment by saying, it’s important for me to tell you I am completely pro-life. This is abortionist murder. However, my daughter is a very good girl who made one mistake and she has a very bright future and da, da, da, give the speech about how we are different, but this is an exception, but we are pro-life and to really express a lot of stigma and negative feelings about the doctor in the clinic, except I am there asking for your medical services. So that’s very common.
And then the specific story of protesters is one I heard over and over. So I went back to this individual who had told me this story some years before and I explained, I was writing a book and could I interview her formally to use that as a representative. So I was shocked when she told me, and then later, years later I was like oh, this is like a thing. Because it’s really hard to have a baby that you don’t want to have, it just is, and some people do it and I applaud their consistency and their courage.
So for this protester — so my reaction, I did ask her did she feel like she wanted to out this woman on the picket line and I used the analogy of like the gay lover of a politician who votes against gay rights, do you want to be like oh, come on, of all the people. And what I just so admired was this physician looked at me like I was crazy, she would never breach confidentiality. And I said well, weren’t you thinking, like ah, you hypocrite, and she said no, I was thinking, you look like you recovered beautifully, good for safe legal abortion. And I just thought gosh, that’s the soul of a physician, who is just like, I am just looking out for your health and we are all living our lives and whatever.
But what I learned, psychologists have a construct called fundamental attribution error and when I learned about that, it really helped me not be so angry. Hypocrisy is one analysis and I am not saying it’s not legitimate, but fundamental attribution error is the idea that, and sadly many of us have, that other people’s failings are issues of character, but our failings are issues of circumstance.
So if Chastidy is late for a meeting, I might be like Chastidy is unorganized. Chastidy is disrespectful. Chastidy is fill in the blank. If I am late for our meeting it’s because, you know what, my kid was having a problem and being a parent is important and I am juggling a lot of balls and I am doing the best I can.
Jon Amarilio: So it’s a lack of empathy.
Katie Watson: It’s circumstance. Yeah, it’s like I — so it’s easy to say if you oppose abortion and you have had an idea that people have abortions are like X, and then you find yourself wanting and needing and choosing to have an abortion, I would like to think you would have an epiphany that like, oh gosh, everyone in this waiting room might have something in common with me, but people look to reconcile that and they say, my daughter made a mistake. It’s like, whatever, other kids are on drugs because they are terrible, my kid made a mistake, they ran with the wrong crowd, it’s not their character, right? So my daughter made a mistake or my situation is unique.
I still maintain that the other women in the waiting room are fill in the blank, promiscuous or callous or this or that. I really struggle about this.
And so, for this woman, I don’t know this woman, but what the doctor said is the reason she gave like, I can’t have a baby with this man, not in the situation where my job is, she was not married to this man, the situation my job is, this, that, this. And the doctor used the term, she said, you know, I see a lot of pull together white ladies having reasons that are not anywhere near as dramatic or dire as some of my other patients, but they are thinking they are the exception, and she thought if anyone — I mean sure, this woman could have a baby, almost anyone could.
And the reasons she was giving were the most ordinary reasons, and I don’t say that disparagingly, I think women are allowed to have “ordinary reasons”, these are common reasons, but from the doctor’s perspective, there was nothing that distinguished this person from anyone else in the waiting room.
And the same doctor said, at least once a day at these clinics she would have somebody grab her hand from the gurney and say doctor, some version of, I need you to know I am not like the other women out there. And it’s really interesting for a doctor, how do you respond, you don’t want to like — that’s the construct that’s getting them through the day, or do you say like — how do you say nicely, you are like all the other, but in a nice way.
Jon Amarilio: Like take your hand off me sociopath.
Katie Watson: The physicians I work with are just so empathic. They are like yeah, whatever gets you through your day. But it’s an interesting issue for them about inserting any kind of politics or group analysis into what’s your individual experience.
Chastidy Burns: I want to get your perspective on some of these other struggles that those doctors are having in this debate. So, so many states allow doctors and healthcare providers to actually refuse to do abortions; I think it might be 45 of them at this point, how do we reconcile the doctors’ perceived right to not do the procedure versus the woman’s right to have it?
Katie Watson: Sure. So in the United States you actually don’t have an affirmative right to any healthcare, except you having a right to seek abortion and contraception. It’s so interesting that the only healthcare that you have a constitutional right to get is the most embattled. You have no constitutional right to your diabetes treatment or your knee repair, it’s so interesting.
But we still live in a world of negative rights versus positive rights and so if no doctor — no one ever wanted to practice medicine, I mean you know what I mean, like you don’t have an entitlement to any doctor’s care, there is still a contractual relationship, and it’s interesting, as a constitutional right you would think we have a higher responsibility, but we can’t make people do things unless you want to make it a condition of licensure. We can make them — we can say you have to not commit malpractice, you can make all these other things.
So Chastidy I as a civil libertarian actually am very supportive of the issue of conscience rights and individual physician’s entitlement to practice medicine consistent with their conscience. What I am not supportive of is this issue of organizations. And I think we should look more closely at the issue of organizational or institutional conscience.
And so it’s one thing to say Dr. Chastidy, that’s not part of her practice. Well, first of all, we need transparency and disclosure, because maybe that would affect whether I chose you as a physician. We need access within the institution, so how are you going to get me to someone who does do those procedures in a way that is not radically disruptive or disrespectful to me, in the same way that I came to you as an expert on X, but something that’s usually in that area of expertise you don’t do. In any other area we have like smooth referral systems.
Chastidy Burns: It’s like a referral process.
Katie Watson: Team care versus it’s a secret that I don’t do that, and then when they bring it up I will be really weird about it and not say anything and block you from getting it, that’s completely different.
So we should distinguish between individual conscience, which I think we always want to protect and have room for and collective responsibility for care provision, which we also want to make sure we get and do. And we are falling down on number two and confusing it with number one.
Chastidy Burns: So Katie, what category would you put other restrictions that are being placed on abortion, such as waiting periods or mandated counseling or having to notify one parent or both parents of getting an abortion?
Katie Watson: In my book I talk about many of those as Trojan horse regulations, because they take the Trojan horses like medical ethics or patient safety or patient care and that’s what the horse — the shape of the horse, but inside is an anti-abortion agenda, a restrictive agenda that says well, if we can’t make abortion illegal, we will make access impossible, right?
So waiting periods are a phenomenally disrespectful expression, and in the book I talk about structural stigma, how to stigmatize a procedure and punish woman for having it, because they create an abortion tax. It increases the cost for someone to have to go to a clinic and some of them require you to be in person for that too. And then go back home when you may have driven for hours and have to take time off work and figure out childcare and do all this stuff and get on a hotel in another town. So it creates this abortion tax.
But it also is so insulting. And when I talk about stigma, it presumes that you have not thought about whether you want to end this pregnancy or not, the moment you showed up at the clinic, as if you just threw a dart and you were deciding — you have to make a phone call, are you going for prenatal care or abortion care. And the idea that when you showed up it’s as if you showed up for prenatal care and they gave you a speech about how much it cost to go to college and to raise a baby and how much childcare hurts and that you are 14 times more likely to die in childbirth than in abortion, so go home for three days and think about this becoming a mother thing and make sure you are serious and then come back to us. Like we would not stand for that for a second, right?
So with the abortion the idea is like, you have gone against your natural role as a mother, you were destined to be a mother and that this is this horrible disruption of that plan, this biological or God’s plan or whatever you want to say and you haven’t even thought about it.
When the informed consent discussion is about the medical procedure of abortion, but the thought process is, do I want to become a mother or not, do I want to have this baby, and that thought process is most likely occurred before you made that phone call, right?
And if you seemed conflicted or not sure about your decision, what that law implies is that the physician and the counselors just heard you through in a hurry and not send you home and say like gosh, like anybody — for any other medical procedure, you seem unsure, and the physician would say, it sounds like we need to reschedule this. It sounds like you are not ready to decide today, right? So it’s insulting to the physicians and to the women.
So that’s just one of the examples you gave, but all those regulations are just meant to stigmatize an abortion, punish women, and reduce access.
Jon Amarilio: It’s also a legislative lie, that kind of Trojan horse legislation, we all know what it is, like no one is being fooled by it and they are creating all of this false legislative history about the intent of the legislature to essentially set up the lawsuit.
Katie Watson: Well, I think yes, certainly we are all lawyers, we know how to set up a lawsuit and do it through legislative intent and history but —
Jon Amarilio: It’s Astroturf.
Katie Watson: It’s Astroturf, but when you say no one is fooled by it, I am not 100% sure that’s true, and I think there is sort of, I am going to be very general here, but like a middle group that would say like abortion should be legal, but I don’t like it, and so to have women jump through some hoops to make sure they are serious, maybe that’s good, maybe that’s a good halfway thing.
Informed consent, who is against that? Oh, think before an important decision, who is against that? Or even the ASC regulations that got struck down, ambulatory surgical care regulations asking all abortion clinics to look like ASCs even though that’s medically —
Jon Amarilio: Essentially made them hospitals.
Katie Watson: Yeah, mini hospitals, which is medically necessary, but then like if you say like, well, to make sure it’s safe, who is against that, you do have to dig a little deeper, and because we are not talking about it, why should you know anything about abortion medicine, like if you have never — but we are somehow — I don’t know anything about the medicine of so many things and I work in a medical school, because I have never had that procedure, my family member hasn’t, but somehow we are supposed to be a 327 million person medical committee in the United States to have an opinion about what’s the safety level of this or the informed consent needs of that for abortion care.
So I just want to push back. I think they are effective for a certain group who feels maybe conflicted of like, well, should women really have that much freedom to just walk up and ask for an abortion as if it was like that’s anybody’s experience or thought process.
Chastidy Burns And that surface level thinking that you want, you may not like abortion, but you are kind of pro-choice, but you want them to jump through some hoops, you do need to take it deeper, and then once you get to well, the waiting period, where a woman has to come one day and then come back two days later, becomes a socioeconomic issue, then those people might have a different opinion. Well, I don’t want to hurt people who can’t afford it for that reason or I don’t want this racially disparate impact, and that’s a different issue.
Katie Watson: Well, so we haven’t touched on the fact that 49% of all abortion patients have incomes that fall below the poverty, federal poverty level, which is very low number and —
Jon Amarilio: It’s like $11,000 or something.
Katie Watson: Yeah, very low and 26%, so like another quarter have incomes that fall between 100 and 200%, now some of those because abortion patients cluster in a younger age group but that’s not all, it’s poor people, right? Lack of access to contraception, lack of sexual power to say no to insist on contraception, all sorts of things.
So, for people who are more disturbed by abortion in the second trimester than the first trimester or feel like the later it happens, the worse it is, the best thing you could do is get rid of all these restrictions because they push abortion later into pregnancy.
As Chastidy just said, someone who has to then raise the money to go do this, the second thing you would do if you really cared and philosophers call this a gradualist approach, just the moral intuition that as a embryo grows, its moral status increases and that abortion at 20 weeks is worse than abortion at two weeks, right? A lot of people have that sort of moral intuition, they can’t articulate when is the week that it changes but they just feel like later is worse, right?
Jon Amarilio: It seems more human for that.
Katie Watson: Yeah, sure, sure, it seems more like a baby.
Jon Amarilio: Yeah.
Katie Watson: Right? They’re not wrong. So the second thing you do is make sure Medicaid covers abortion care and make sure private insurance covers abortion care. Why are people raising money for this, right? But so many states have regulated laws banning like saying insurance can’t cover this or saying our Medicaid won’t cover this, right? 16 states approximately have Medicaid coverage now and Illinois is one of them.
Some states are moving to ban insurance discrimination like they’re saying if in private insurance saying if you cover maternity care in contraception, you need to cover abortion care in the same proportion or however you do it because why are people having to scrape together, even if you’re wealthy to say you’re paying out of pocket, stigmatizes this in a different way.
But then, Chastidy, as you point out like if we have 49% of people under the poverty level raising $500 for a procedure and as you — as the gestational age increases, the procedure cost increases. So people might get together whatever their fee is, $200, find the week they’ve passed a week marker, right now it’s $500. Okay, now add a waiting period.
Now, I got to go stay in a hotel, now I have to pay someone, now I am going to lose —
Jon Amarilio: It’s a month’s income for them.
Katie Watson: Yeah, I’m going to lose two days at Burger King, I could risk losing my job. Okay, now I have to wait till it’s whatever, I have a break from my job, okay, now we’re three weeks later, costs more, whatever it is, right? Now I need anesthesia and I have to bring a friend to drive me. Who in my life can come with me to this other town and kick it for a couple days?
So we’re now going later and later. The goal is to trap that woman into delivering a baby she didn’t want to have and for some people that’s the outcome, right? So these are all just barriers to access but they disproportionately impact women who are poor, they disproportionately impact women of color who have — and poor women have a much higher rate of unintended pregnancy going back to that power and access to contraceptives issue, right?
So when we think about reproductive justice and looking at this larger image in this larger picture of the right to not have children but also the right to have children and the right to parent the children you have, focusing on this right not to have children, this is impacting poor women a lot more than it’s impacting rich women. Rich women are still very much impacted by it, but it’s just in a different level.
Jon Amarilio: We are going to have to take a break right there.
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Jon Amarilio: So, Katie, we’ve been talking a lot about the restrictions on abortion and it seems like every time I pick up a newspaper, I’m reading about new attempts across the country to either impose new forms of restrictions through legislation or bring up test case after test case after test case to try to see if the Supreme Court will change its mind about Roe and Casey despite the fact that’s been a lot of land for nearly half a century now. So, there’s this feeling that the right to choose is under siege concept.
Katie Watson: Yeah, accurately so.
Jon Amarilio: Is there any good news?
Katie Watson: Well, I think that there is. I think when Roe and Casey felt more secure although all these new restrictions were coming after Casey, it was easier for people to be complacent unless they had extreme — strong views on the issue one way or the other.
They may have been active, but there was a lot of people I’ll say in the middle who were just like maybe I’m glad it’s legal but it’s like a non-issue and isn’t that the point of winning constitutional rights is like now you can move on with your life, you shouldn’t have to just be fighting to defend them all the time. I understand that.
But the threat and the fear and the real possibility of an attack on Roe or gutting or reversal of Roe has led states to do what you described is that bans and the things try to have the test cases; although it’s very important to say, abortion is still illegal in all 50 states, you can’t just pass a statute and it’s Constitution right.
But, some states have now gone affirmative to say, well, okay, if Roe were to go down, what will our State law be and our State law will be supportive of women’s rights to choose.
So, for example, I think it’s amazing that the Iowa Supreme Court in 2018, there was a 72-hour waiting period that was challenged on the basis of the State Constitution. They didn’t even bring up any federal claims, so it couldn’t become a test case to go up and Iowa Supreme Court in 2018, Planned Parenthood v. Reynolds, found a fundamental right to abortion in the Iowa Constitution meaning it’s subjected to strict scrutiny, none of this undue burden stuff.
And just a couple months ago in Kansas; Kansas passed a ban on D&Es, which is a procedure I won’t get into, but is the majority of second trimester procedures said you can’t do that anymore. You have to do things that are more dangerous for women and same strategy only challenged under the Kansas State Constitution.
In April, the Kansas Supreme Court found a fundamental right to abortion in the Kansas State Constitution, 6-1 decision, said this is part of life and liberty and natural rights. Kansas has Declaration of Independence language and uses the term “Natural Rights”, I mean, it’s just so State constitutions are amazing. So we’ve got two new State fundamental rights.
We have got new legislation and Illinois has a Reproductive Health Act, our home State, and New York, we heard a lot about that, that basically codify a version of Roe. So if Roe goes down tonight, tomorrow morning the women in New York and Illinois wake up with the same laws and then even in Illinois, we got rid of our Medicaid discrimination two years ago and we got rid of our private insurance discrimination. We’re this year part of that trend.
I just want to point out right now Title X is in the news and so that is the federal grants for Family Planning and the Trump administration has made modifications that as a medical ethicist, I will say are wildly unethical to —
Jon Amarilio: Well, you’re not suggesting the Trump administration would do anything on that.
Katie Watson: Well, in this area I’m going to just limit my comments and say this time they have.
Jon Amarilio: Wow. Okay, really going out and eliminate that, but all right.
Katie Watson: Yeah, right, right, but I just want to point out. I hope that those are overturned in court, but Illinois, Washington, Vermont and Maryland, the governors and legislatures of those states have pledged the same dollar amount to all the Planned Parenthoods and Title X clinics to say you can practice medicine without committing malpractice like you have been and we will supply the money for poor women in families to have their contraceptive care.
So we are seeing some states and step up and when jurists are confronted with the question they come to the same conclusion that the Roe court came to, which is fascinating. So, the bad news is, I’m worried, we’re going to go back to a pre-Civil War status of slave states and free states except it’s going to be about women and not people of African descent and it’s going to be about this issue of abortion.
Jon Amarilio: Oh we’ve all read for economics, we know what that’s going to do with the economy, so that’s their problem.
Katie Watson: Yeah, so I don’t like this patchwork system. I think that Roe should and Casey should — well Roe should be affirmed, not Casey. I think Roe should be affirmed. It was correctly decided and I think it should be affirmed and because I have lived through Casey where everyone was so sure Roe was going to be reversed, it was modified in ways that really hurt women.
I really think it’s absolutely possible that we will hold together and I think it should because it should be federal. If it goes down, I think Congress should fix it and make federal legislation that gets rid, makes these State bans not permissible, there’s other solutions. It has to be a federal right, we cannot be balkanized like this.
But the good news is the impression that, oh, when the ropes are off, states want to ban abortion, that’s not at all uniform and we’re going to see more of the affirmative protections in the next year I think.
Jon Amarilio: Excellent. We’ll end things on that brighter note and we are going to go straight to legal fiction.
Katie Watson: Great.
Jon Amarilio: The rules are pretty simple. Chastidy and — well, I haven’t done my research on it but Chastidy was kind enough to do the research for me on this one.
Chastidy Burns: Public defenders, right?
Katie Watson: Always prepared.
Chastidy Burns: Always prepared, doesn’t matter how many cases they put there.
Jon Amarilio: We’ve done a little research found one law in the books that is true but probably shouldn’t be, made another one up, we’re going quiz you and each other to see which is real and which is not if we can distinguish strange legal fact from fiction.
Chastidy, you want to lead us off?
Chastidy Burns: Sure, okay. Rule number 1 is, it is legal to wear a fake mustache that causes laughter in church in Alabama?
Jon Amarilio: It’s legal?
Chastidy Burns: Illegal to wear a fake mustache that causes laughter in church.
Katie Watson: In church.
Chastidy Burns: In Alabama.
Katie Watson: Okay.
Chastidy Burns: Second one is in Texas, it is illegal to erect a greenhouse within 500 feet of a tobacco farm.
Katie Watson: I’m going with mustache because who cares about greenhouses and tobacco farms.
Chastidy Burns: You think the mustache one is true or false?
Katie Watson: I don’t think there is any relationship. Well, I think it is actually a law because I don’t think anyone cares about the distance between greenhouses and tobacco farms. I don’t know anything about tobacco farms but that one doesn’t make any sense.
Chastidy Burns: You are correct.
Katie Watson: I shouldn’t be. But just agriculturally it doesn’t make sense. The mustache doesn’t make any sense either but then somebody obviously laughed in church and then somebody else —
Chastidy Burns: So obviously a problem that happened.
Katie Watson: Happened to be in the State Legislature and here we all are.
Chastidy Burns: Exactly.
Katie Watson: That is, yeah, welcome to the State legislatures.
Jon Amarilio: All right, I’m only going to ask you, Katie, this one because Chastidy did the research for me, so I’m not going to ask her to distinguish what she already knows.
Katie Watson: Okay.
Jon Amarilio: All right, first option.
Katie Watson: All right.
Jon Amarilio: It is illegal in Arkansas for public school children to use a pencil that is not a number-two pencil.
Second option, honking one’s car horn at a sandwich shop after 9:00 p.m. is illegal in Arkansas. So, honking after 9 or using anything but a number-two pencil if you’re a public school kid.
Katie Watson: I want it to be the honking at a sandwich shop, but I actually think maybe it’s the school regulation.
Jon Amarilio: Why do you think?
Katie Watson: Just a profound drive to standardization but it also sounds like a poll tax or a way to get kids ask the money for another two pencils, but the honking at the sandwich shop could be the same thing. If somebody honked at a sandwich shop and the sandwich shop owner knew someone in the State Legislature, I just don’t have the same greenhouse rationale but I am going to go with number two.
Jon Amarilio: Yeah, well, you’re batting 500 today.
Katie Watson: Should have gone with the same rationale if somebody knew somebody and you can’t honk at my sandwich shop anymore.
Jon Amarilio: I mean usually the stupider the law, the more true it is in my experience in this, yeah, but —
Katie Watson: Yeah, I love this game.
Jon Amarilio: Hey, look, look, 500 —
Katie Watson: This is like a word a day from a dictionary thing, would you just know me every morning one of these and I am like, ah.
Jon Amarilio: wait, Look, Mantle batted like didn’t even bat 500 so.
Katie Watson: That’s right.
Jon Amarilio: That’s like Ted Williams level, that’s something to be proud of.
Katie Watson: Okay, thanks. I will be proud of that. Thank you.
Jon Amarilio: And that’s going to be our show for today. I want to thank our guest Professor Katie Watson of Northwestern for this nuanced and insightful conversation. Her book is ‘Scarlet A: The Ethics, Law and Politics of Ordinary Abortion’, it’s a great read, truly eye-opening, and a must read for anyone who’s interested in this subject.
I also want to thank everyone here at the CBA who makes this machine run including my co-host Chastidy Burns, our executive producer Jen Byrne, Ricardo Islas on sound, and everyone at the Legal Talk Network family.
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Until next time for everyone here at the CBA, thank you for joining us and we will see you soon @theBar.