Carhart and Its Effects — Which Women?

The Reproductive Rights Prof Blog has a good re-cap of the AALS Hot Topic panel on Gonzales v. Carhart. Michael Dorf also has offered his thoughts on some of the political issues raised in the panel.

Here, I’d like to respond to a colloquy that took place. As I heard her say during the panel, Angela Harris said that Carhart could usher in new coalition building among reproductive rights advocates because the people affected by the decision are now middle- and upper-class white women who will see that this issue affects all women, not just poor women of color. A member of the audience pushed her about this point, saying that the abortions now banned by the federal law upheld in Carhart actually affect the same group of women usually targeted — the poor and the minority. If I’m remembering correctly, Professor Harris responded that she was misheard (by the audience member making the comment and by me too!) and that the procedure does affect that group but that the attention paid to the decision and the push to regulate abortion in its wake will serve this unifying purpose. (I hope I’m faithfully remembering the back-and-forth. If I’m not, please add your comment with clarification.)

To give some substance to the audience-member’s comments, below is an excerpt from a brief submitted by reproductive rights advocates for the 2000 Nebraska Carhart case. The brief is also reprinted in the UCLA Women’s Law Journal. If you want the sources for the facts stated below, you’ll have to follow the links (this excerpt begins on page 10 of the brief and page 11 of the article).

Here’s the grim reality of who is affected by bans on intact dilation and evacuation:

Furthermore, the weight of the Nebraska ban will fall most heavily on precisely those women least able to bear it: disadvantaged women who are already encumbered by circumstances making it difficult to obtain an abortion promptly. Only a small percentage of abortions take place in the second trimester. See Abortion Surveillance, supra, at 5 (finding that 88% percent of abortions are obtained in first trimester and only 10% in the second trimester). A mere 4% of abortions are obtained at sixteen to twenty weeks, the period of gestation during which Dr. Carhart performs most of his D&X abortions. See Carhart v. Stenberg, 11 F. Supp. 2d 1099, 1105 (D. Neb. 1998). Women who obtain abortions after the very earliest stages of pregnancy typically face special circumstances or difficulties that delay them. For example, in some cases, fetal abnormalities are discovered through testing undertaken in the second trimester. In other cases, socioeconomic factors play a significant role in delaying the abortion into the second trimester. These factors include: poverty, which prevents low-income women from raising the money quickly enough to pay for an earlier procedure; domestic violence, because abusers often deter their victims from getting an earlier abortion; unawarenessof pregnancy that can often stem from youth; an unforeseeable change in circumstances such as a health problem or desertion by a spouse or partner that occurs only after several months of pregnancy; and inability to locate or access a provider. Race is also correlated with post-first-trimester procedures: Black women are 2.8 times more likely to obtain a second-trimester abortion than are white women. Abortion Surveillance, supra, at 7.

– David S. Cohen