Antiabortion Narratives and the U.S. Supreme Court
Storytelling is a way of communicating information that is lost through other modes of delivery. All good writers of fiction understand the unique contribution that stories make to human understanding. A good story, like fiction, affords its listeners “the opportunity to move inside another human being, to look out through that person’s eyes, hear with her ears, think with his thoughts, feel with her feelings” (Bauer 1994, x). It is little wonder then that personal narrative has found a place in movements for social change. From the civil rights fights of the 1960s to consciousness raising feminist groups of the 70s to the MeToo# movement of today, personal narratives have helped shape new understandings of human experience. At the same time, there are dangers to an overemphasis and overreliance on personal narrative as a reliable source of knowledge within social movements.
In my work as a philosopher and legal theorist, I have spent time studying the moral and legal issues related to abortion in the U.S. The worst and most baffling Supreme Court decision on abortion to date is Gonzales v. Carhart (550 U.S. 124 (2007)). The majority opinion for that case was drafted by Justice Anthony Kennedy who, often, was the swing vote between the liberals and the conservatives on the bench (and whose recent retirement and subsequent replacement has left the Court with a majority of conservative justices and abortion rights in limbo). As I began to dig into the decision in Carhart to understand what Justice Kennedy had decided and why, I was struck by a horrifying realization. His wrong-headed decision was fueled, in large part, by a small number of anecdotal stories that anti-choice activists had carefully culled and provided in legal form for the Justices to consume. In what follows, I explain how these stories came to be, how they were misused by the anti-choice movement to make a claim that is not supported by empirical evidence, and what these stories really tell us about abortion in the U.S. First, however, we need to briefly examine how personal narrative may be said to be a unique way to convey knowledge as well as its potential limitations.
Personal Narrative as a Unique Way to Convey Knowledge
First-hand experience creates a particular type of knowledge. This is a claim that is supported by traditional as well as feminist empiricists. When a person tells a story to an empathetic other, this is as close as the listener can get to having the experience themselves. Depending on the story’s narrative and the receptivity of the listener, it is possible to gain knowledge not just about the individual who tells the story but also about similarly embodied others. The immediate, emotional, resonance of personal narrative is what allows it to be such a unique conveyor of knowledge. The listener may claim newfound knowledge by empathetically putting themselves in someone else’s shoes.
However, using personal narrative to convey knowledge is not without its dangers. For instance, the power of personal narrative means that one individual’s story can sometimes stand in for, and even replace the need for verifiable, rigorously-supported empirical data. Furthermore, while stories may claim universality, the features of personal narrative are relative to the narrator and the purposes for which the story is shared. The facts of the story are given meaning by the narrator’s larger framework of understanding. This is why consciousness raising was so successful as a feminist project – it involved sharing personal stories with others while investigating the oppressive, gendered, social, and cultural framework that gave those experiences a collectively understood meaning. If the personal story is unmoored from the conceptual framework of the narrator, we learn less than we think we do.
Similarly, a personal narrative may be used as proof that certain causal factors objectively exist. Yet causality is not a given, but rather embedded in the conceptual framework in which the story takes place. For example, one person’s personal story of sexual harassment in the workplace may be understood as demonstrating problems in that particular workplace or as revealing more universal problems. Standing alone, the personal story supports neither of these conclusions; it is only in the context of the listener’s wider conceptual framework that it is possible to confirm one or the other (or both, or neither) of these truth claims. More is needed outside of the personal story to know how to accurately assess causal claims. Thus, while personal narrative is seen as a force for social change, it is even easier for it to maintain the status quo when used to reify a commonly held conceptual framework. This type of misuse of personal narrative is exactly what was behind the Court’s decision in Gonzales v. Carhart in 2007.
The Creation of the “Women’s Regret Rationale” Using the Power of Personal Narrative
In Gonzales v. Carhart, Justice Kennedy, writing the majority opinion for the Supreme Court in a case about abortion, declared:
Respect for human life finds an ultimate expression in the bond of love the mother has for her child [...] While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow. (2007, 159)
This reasoning motivated the Court to uphold a full ban on an abortion procedure known medically as intact D & E and known popularly as “partial birth” abortion. This decision was made despite abundant evidence from many medical practitioners that this ban would harm some women’s health (Carhart Dissent 2007, section B).
This claim, made by Justice Kennedy with no empirical evidence to support it, has since become known as the “women’s regret rationale” and has been widely criticized by legal experts. Ruth Bader Ginsberg, a Justice who strongly disagreed with the majority’s opinion, responded in her dissenting opinion by declaring:
[T]he Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “[s]evere depression and loss of esteem”… This way of thinking reflects ancient notions about women’s place in the family and under the Constitution—ideas that have long since been discredited. (Carhart Dissent 2007, 183-185).
This “antiabortion shibboleth” transformed into constitutional law was the culmination of decades of work done by some in the anti-abortion social movement.
The pro-choice and anti-abortion movements respond both to each other and to changing law. Around the 1980s, after the anti-abortion movement had spent over a decade focusing exclusively on the rights of the fetus, and with few legislative wins, several key leaders in the anti-abortion movement consciously embraced a new strategy. As Jack Wilke, one of the leaders of the anti-abortion movement at the time said:
After considerable research, we found out that the answer to their "choice" argument was a relatively simple straightforward one. We had to convince the public that we were compassionate to women. Accordingly, we test marketed variations of this theme. Thus was born the slogan "Love Them Both… (Siegel 2008, 1671)
With this new strategy, the anti-abortion movement attempted to situate its arguments in a conceptual framework that sought to ban legal abortion as a way to protect women as well as unborn children. This was accomplished by trying to convince the public that legal abortion harms women, particularly psychologically. Gathering narratives that relied on and personalized this conceptual framework, then, was a method with promise.
In 1981, a marriage and family counselor named Vincent Rue testified in front of Congress regarding the psychological effects of abortion. Among other things he claimed that women who had abortions were suffering from “post-abortion syndrome,” which is a form of post-traumatic stress disorder (Siegel 2008, 1657-1658). His Court testimony was not deemed credible given that it was based primarily on his clinical experience and he lacked the appropriate qualifications (Turner 2008, 23). The Court noted that a study he co-authored had been rejected by the Centers for Disease Control for having “no value” and being “based upon a priori beliefs rather than an objective review of the evidence” (Turner 2008, 23).
Around this time, an anti-choice activist and psychologist named David Reardon also became involved in the debate, surveying 252 members of a group called “Women Exploited by Abortion” or WEBA and publishing a book titled, Aborted Women: Silent No More (Schoen 2015, 146). WEBA was an organization established by a group of women in the anti-abortion movement after some of its members heard Vincent Rue speak in 1982 (Siegel 2008, 1658). As historian Johanna Schoen notes:
WEBA members, in cooperation with Reardon, constructed a story line for women who had had abortions that defined how women were to think about and experience the event if they were seeking acceptance from the antiabortion movement. (2015, 147)
This story featured many common elements, regularly depicting the women as passive recipients of an often, coerced abortion – a procedure they knew little to nothing about prior to undergoing it. Further, as Schoen describes:
Women described the actual abortion procedure as horrendous and noted in particular their confrontation with the fetus. This confrontation – a crucial moment in the narratives – represented the moment WEBA members suddenly concluded that the procedure was killing their child… Had they known, these stories implied, these women would not have had abortions. (2015, 147-149)
What started as a therapeutic discourse amongst women in the anti-abortion movement in the 1980s turned into a political strategy in the 1990s, aimed at convincing the public and the courts that abortion harmed women (Siegel 2008).
Given the prominence and success of personal storytelling in feminist movements, anti-abortion activists saw the potential for using the same techniques to advance their own cause. They sought to highlight the narratives of women who would personally attest to the psychological damage caused by their abortions. This approach was designed to counter the impression that anti-choice activists were uncaring toward women while also surreptitiously continuing to advocate on behalf of the fetus. As David Reardon said:
In focusing attention on post-aborted women, we are actually allowing their voices to be better heard. It is their witness on behalf of their unborn, not ours, which will soften hearts and open eyes. In this sense, by focusing on women's rights, we are not ignoring the unborn but, instead, are preparing the stage for the most compelling advocates of all for the unborn - their mothers. (Turner 2008, 29)
Thus, the strategy to utilize women’s carefully crafted narratives to depict abortion as harmful to the natural mother-child relationship was born.
The late 1980s and 1990s took this strategy to the next stage by creating legally allowable claims about the harm abortion causes women. Starting in the late 1980s, amicus curiae briefs (‘friend of the Court’ briefs written by interested non-parties to a lawsuit) in several court cases referenced post-abortion syndrome as real and existing (Turner 2008, 25-26). A further strategy employed was to gather and harness women’s testimony in a form that might be legally usable, specifically in the form of written affidavits. Amicus curiae briefs in several court cases also utilized these affidavits to argue for post-abortion psychological harm (Turner 2008, 33-34).
However, even at that time, there was a substantial body of literature that repudiated claims of post-abortion syndrome. Several reviews of the relevant research on this question found no evidence that abortion caused mental health problems (Siegel 2008, n44). Further, in 2008, the American Psychological Association published a report that extensively surveyed the various existing studies on abortion and serious mental health outcomes and found no link between these variables (Schoen 2015, 239). The conclusions of this report are consistent with findings of other reports conducted before and after it. The claim that there is an empirically proven link between abortion and mental health problems for a large group of women is simply false. Justice Kennedy had access to this information when he wrote his decision in Carhart.
In fact, when Justice Kennedy claimed in Carhart that it seemed “unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained,” he cited only one document, an amicus brief from a conservative law center, the Justice Foundation (159). This brief quoted and included affidavits that had been created by Operation Outcry to capture women’s stories about their own post-abortion regret. These affidavits did not accurately represent the full range of experiences of women who had abortions. Instead, they were carefully crafted to “articulate an antiabortion view that stood in stark contrast to women’s actual experience of abortion” (Schoen 2015, 239).
Nonetheless, because Justice Kennedy’s conceptual framework included the belief that “respect for human life finds an ultimate expression in the bond of love the mother has for her child,” it is clear that he had no trouble embracing the claim that abortion can cause women severe psychological harm (159). Justice Kennedy’s conclusion was arrived at through a clear misuse of personal narrative. His conceptual framework allowed him to accept evidence that a handful of personal stories captured a larger truth about women and abortion and explained the causes of these individuals’ psychological distress.
Conclusion: Personal Narratives of Psychological Harm and What They Really Tell Us About Abortion
The fact that a very small percentage of women have serious negative psychological outcomes after an abortion is not evidence that the procedure should be banned. Rather, it is evidence that abortion is not enough to guarantee women control over their reproductive lives. Interestingly, abortion providers themselves have grappled with the fact that a very small percentage of women experience psychological distress after an abortion. The common denominator in these rare cases, they found, was that women were so deeply ambivalent about their choice to abort that they could not own their choice or come to terms with it (Schoen 2015, 205). It is not clear how banning abortion would solve this problem; it is clear that many more women would be harmed if abortion is prohibited.
The abortion narratives discussed above tell us that women will suffer psychologically if we do not have some real measure of control over our reproductive lives. This requires access to safe, legal abortion. But how can we make sure all women have the resources, help, and information they need to be able to make a fully informed choice? One relatively obvious suggestion would be for women considering abortions to receive free, quality counseling upon request. We could lobby for the state to allocate some substantial set of resources to aid women who cannot afford to remain pregnant or give birth so that they don’t feel coerced into having an abortion due to their material circumstances. Abortion is clearly not enough for real reproductive freedom for the many women who don’t have the material and/or personal support they need to choose to mother. This truth is widely shared by activists on both sides of the abortion issue. Surely if we focused on a conceptual framework of women’s shared concerns about what we need for true reproductive freedom, we would be able to craft laws and policies that better serve the needs of all women.
Bauer, Marion Dane. 1994. Am I Blue: Coming Out From the Silence. Harper Collins Press.
Reardon, David. 1987. Aborted Women: Silent No More. Loyola University Press.
Schoen, Johanna. 2015. Abortion after Roe: Abortion after Legalization. University of North Carolina Press.
Siegel, Reva. 2008. “The Right's Reasons: Constitutional Conflict and the Spread of Woman-Protective Antiabortion Argument.” Duke Law Journal 57 (6): 1641- 1692.
Turner, Ronald. 2008. “Gonzales v. Carhart and the Court’s “Women’s Regret” Rationale.” Wake Forest Law Review 43 (1): 1- 43.