Policy Paper
The Right to Choose: A Hermeneutic Inquiry
Georgia Warnke
In 2012, state legislatures around the United States passed forty-three meas-
ures limiting access to abortion services; in 2013, they enacted seventy. Forty-five
percent of these were in significant areas; they imposed restrictions on abortion
providers, limited insurance coverage for abortion, banned abortions at twenty
weeks after fertilization and set restrictions on medical abortions. Whereas states
passed twenty-two of these sorts of restrictions between 2000 and 2010, they
passed ninety-three from 2011 through 2013. In 2000, the Guttmacher Institute
recorded thirteen states as what it called “hostile to abortion rights”; in 2013, it
recorded twenty-seven. 1
In light of what the Institute sees as a “legislative
onslaught” that “has dramatically changed the landscape for women needing
abortion,” it is worth re-examining the grounds on which the struggle to secure
access to abortion services has largely proceeded, namely on the basis of a right to
choose.
Of course, many feminists and others have already re-examined the right to
choose and continuously voiced concerns about the consequences of supporting the
legality of abortion in terms of it. Those in the reproductive rights movements have
long advocated moving beyond a focus on the issue of abortion alone to include
examinations of sterilization abuse and to promote access to affordable child and
health care. 2
Currently, many advocates who used to call themselves pro-choice
now support a wider mandate making abortion simply one of women’s general
reproductive health concerns. 3
For many critics of choice, focusing on a right to
choose raises at least two problems. First, it suggests that abortion rights are matters
only of private choice and personal preference. The state has no obligation either to
provide for abortion services or to refrain from setting conditions and restrictions on
the choices available. Second, many critics think that focusing on a right to choose
is elitist. It ignores a history of reproductive abuse against non-white women and
disconnects abortion rights from broader issues of equality and reproductive well-
being. It also disregards the concerns of women whose poverty means they have
few options or choices. As Marlene Gerber Fried puts this criticism, “the decision
to fight for choice . . . is . . . a decision to appeal to those who already have choices.”
4
In this article, I want briefly to review such arguments. Yet, I also want to
explore two related but different sorts of questions. The right to choose may be
elitist and possess consequences that largely remove abortion as well as repro-
ductive health in general from the state’s proper concerns, but another issue
JOURNAL of SOCIAL PHILOSOPHY, Vol. 46 No. 2, Summer 2015, 161–177. VC 2015 Wiley Periodicals, Inc.
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concerns the way we are to understand the meaning of a right to choose. What
exactly is such a right and how does it compare to other rights such as the right
to free speech or the right to the free exercise of religion? In the latter two cases,
our rights seem to be direct ones: a right to the activity in question. In the former
case, however, the right is a right not to the activity itself but to a choice for the
activity. My first set of questions, then, asks about the possible significance of
this difference. In referring to a right to choose to have an abortion are we sig-
naling a difference between abortion rights and other rights, between indirect
and direct rights? If so, is this difference justified? My second set of questions
asks whether a vocabulary centered on choice is adequate for understanding and
articulating the range of experiences individuals have surrounding pregnancy,
birth, and abortion. To what extent can we understand these experiences as ones
primarily of options and choices and to what extent are they to be understood,
instead or in addition, as experiences of obligations and commitments?
Both sets of questions I want to ask might be called hermeneutic ones insofar
as they are concerned with understanding meaning—understanding what the right
to choose is meant to be, on the one hand, and understanding the character of the
experiences women have surrounding pregnancy, birth, and abortion, on the other.
While the two sets of questions may seem unrelated, in concluding the article I
hope to bring them together. How might an adequate understanding of experiences
surrounding pregnancy, birth, and abortion affect our understanding of the basis for
abortion rights? I begin with a brief review of the history of the right to choose.
Problems with the Right to Choose
At a conference sponsored by the Illinois Citizens for the Medical Control of Abortion in 1969, Betty Friedan said, “There is only one voice that needs to be heard on the question of the final decision as to whether a woman will or will not bear a child and that is the voice of the woman herself. Her own . . . conscious choice . . . Motherhood will only be liberated to be a joyous and responsible human act when women are free to make with full conscious choice and full human responsibility the decision to be mothers.”
5 In a memorandum to colleagues in December 1972, Jim-
mye Kimmey, Executive Director of the Association for the Study of Abortion, pro- posed the right to choose that Friedan implies here as an appropriate slogan for the campaign to reform or repeal restrictive abortion laws. As against other possibilities, the right to choose possessed two advantages. First, it was “short” and “catchy” enough to counter the opposition’s watchword, “the right to life.” Second, it let women decide. As Kimmey continued:
A woman’s conscience may well tell her abortion is wrong but she may choose (and must
have the right to choose) to have one anyway for compelling practical reasons. A wom-
an’s conscience may tell her that abortion is right, but she may choose to run the risk of
having a defective baby anyway.
What we are concerned with is, to repeat, the women’s right to choose—not with her right
(or anyone else right) to make a judgment about whether that choice is morally licit. 6
162 Georgia Warnke
In addition to a concern with choice, efforts to reform or repeal restrictive
abortion laws in the late 1960s and early 1970s often also linked abortion
rights to concerns with equality. 7
The argument here was that without the
capacity to control one’s reproduction, untimed pregnancies would always
threaten one’s educational and career aspirations and undermine one’s
capacity to participate in social, political, and economic institutions on an
equal basis with men. Just as importantly, critics contended, restrictions on
broad legal access to abortion undermined women’s equality with one another.
Rich and middle-class white American women had always had some access to
relatively safe, if illegal, abortions and they were more likely to be granted so-
called therapeutic abortions, legal abortions meant to be performed in order to
save the life or health of the mother. As Linda Greenhouse and Reva Siegel
point out, however, “Between 1951 and 1962 over 92 percent of women who
received hospital abortions in New York City were white, while over three-
quarters of those who died from illegal abortions in the city were women of
color.” 8
Legal access to abortion, whether therapeutic or nontherapeutic, was
supposed to correct this situation by making abortion available to all women
on an equal basis.
Nevertheless, in its decisions on abortion the Supreme Court addressed
the issue of abortion primarily in terms of choice rather than equality. Roe v. Wade famously declares that the right to choose, “whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon
state action . . . or . . . in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to
terminate her pregnancy.” 9
Likewise, Harris v. McRae in 1980 recognizes “the freedom of personal choice in certain matters of marriage and family life.”
10
According to both decisions, the state ought not intrude upon decisions about
abortion, at least up to a certain stage in pregnancy, because to do so is to
intrude on choices that are properly private. McCrae also makes it clear that the state need not actively support these choices. The decision upholds the
Hyde Amendment restricting the use of public funds for abortions and it
explicitly distinguishes the “due process liberty recognized in Wade” from a woman’s “constitutional entitlement to the financial resources to avail herself
of the full range of protected choices.” The decision continues, “Although gov-
ernment may not place obstacles in the path of a woman’s exercise of her free-
dom of choice, it need not remove those not of its own creation, and indigency
falls within the latter category.” 11
Webster v. Reproductive Health Services in 1989 applies the idea of choice not only to a woman’s range of possibilities but also to a state’s options with
regard to abortion. In upholding a Missouri law restricting the availability of
abortion procedures in public hospitals, the court notes that “Congress’ refusal
to fund abortions in McRae left an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she
would have had if Congress had chosen to subsidize no health care costs at all.”
The Right to Choose 163
Similarly, it asserts, “Missouri’s refusal to allow public employees to perform
abortions in public hospitals leaves a pregnant woman with the same choices as
if the State had chosen not to operate any public hospitals at all.” 12
What follows
from this decision regarding a state’s choices is the Court’s holding in Planned Parenthood of Southeastern Pennsylvania v. Casey that states may impose wait- ing periods and other conditions on access to abortion even before fetal viabil-
ity. 13
What also follows are the choices states such Colorado, North Carolina,
Ohio, Texas, and Wisconsin make to ban the flow of state or federal funds to
organizations such as Planned Parenthood that perform abortions as part of their
mandate to provide for women’s health care needs and the choices other states
make in the current “legislative onslaught” on access to abortion to which the
Guttmacher Institute points.
Neither feminist critics of the emphasis on the right to choose nor those
in the reproductive rights movement have ever overlooked the potential
choice has to incur such consequences. Examples include Catherine MacKin-
non, who lambasted the abandonment of equality concerns along with the
effects of privatizing abortion rights in her 1983 article “Privacy and Equal-
ity: Beyond Roe v. Wade,”14 and Rosalind Pollack Petchesky, who contrasted a personal right to choose with what she saw as a necessary transformation of
“the social conditions of choosing, working, and reproducing” in her 1984
book Abortion and Woman’s Choice.15 More recently, Ricki Solinger argued that a reliance on choice reduces access to abortion to a consumer good and
thereby equates the lack of access poor women have to it with their lack of
access to luxury commodities in general. 16
In her view, in fact, the notion of a
right to choose is “fairly ridiculous” as it “impossibly mixes ‘right,’ some-
thing to which one is justly entitled, and ‘choice,’ a privilege to exercise dis-
crimination in the marketplace among several options, if one has the
wherewithal to enter the marketplace to begin with.” 17
For her part, Robin
West draws the privatizing consequences a right to choose has even for bear-
ing and raising a child. As long as a potential parent is informed about possi-
ble expenses,
There is no further need for intervention into the various private markets for the support
services—education, healthcare, childcare—from which she might choose when it comes
time to employ those services. We now have a “choice” to end a pregnancy—when we
parent, no less than when we do not, we have made our choice. 18
Rather than repeating the arguments of these theorists or further developing
such consequences of the emphasis on a right to choose, in what follows I would
like to pursue questions about the meaning of such a right. If the legality of
abortion follows from a right to choose to have one, how are we to understand
this right? What, in other words, is the significance of a right to choose to have
an abortion in comparison to arguably more direct rights to speech, religion, and
the like? What sort of right is a right to choose?
164 Georgia Warnke
Understanding the Right to Choose
Declaring the right to choose in the context of abortion marks an important
achievement insofar as it recognizes women’s autonomy and pronounces them
to be individuals capable of choosing their own ends. The Casey decision goes so far as to state that “the controlling word in the cases before us is ‘liberty’.”
19
Women have the freedom to determine their own futures and this freedom
extends to decisions about when and if they will become parents, to which legiti-
mate purposes they will lend their bodies, and who or what will have access to
them. Accordingly, NARAL Pro-Choice America continues to base its work on
the belief that “women should have the option to choose abortion” 20
and the
American Civil Liberties Union continues to insist on the “the ability to decide
whether or not to carry a pregnancy to term.” 21
At the same time, we might ask
why the liberty to which the Casey decision refers entails the right “to choose to have an abortion before viability”
22 rather than, more simply, the right to have
an abortion. Likewise, we might ask why NARAL-Pro Choice refers to “the
option to choose.” After all, the liberty involved in the freedom of speech entails
the right to speak rather than the right to choose to speak and the right to vote is
just that, rather than a right to an option to vote. What, then, is the force of
inserting choice between the right and the act in the case of abortion? If liberties
are direct rights, rights to speak, to engage politically or to act in certain ways
free of state interference, how might we understand the point of a right that
inserts an intermediary step between the right and the action, a right that is a
right to choose to act rather than a right to act?
One possible answer appeals to the necessity of balancing liberty rights
against the life of a fetus. Neither a right to free speech nor a right to exercise
one’s religion involves ending a human life, no matter at how early a stage of
existence. In contrast, abortion does, and even for many who support legal
access to it, abortion therefore edges right up against the line beyond which the
freedom to pursue one’s own good deprives others of theirs. For this reason, the
right to legal access to abortion is arguably less clear a right than the right to
criticize the state or practice one’s religion. Emphasizing the right to choose
over a right to have an abortion acknowledges our hesitation about the latter in
view of the presence of another consideration, namely, a human life. It signals
the idea that we have something to reflect on and to balance against other impor-
tant considerations.
Yet, if this analysis goes some way to elucidating the point of inserting
choice between the right to an abortion and the act itself, it does not go the
whole way. The Supreme Court’s Roe v. Wade decision is explicit about balanc- ing access to abortion against protecting fetal life and therefore divides preg-
nancy into three trimesters, allowing for state intervention in the later stages as
the fetus develops. The decision thus asserts a kind of gradualism with regard to
human life, tipping the balance between access to abortion and protecting
human life increasingly in favor of the latter as the pregnancy continues. For its
The Right to Choose 165
part, the Casey decision declares an interest in balancing liberty and protecting fetal life throughout a pregnancy. It is not clear how a right to choose adds to
the explicit demands for balance that these rulings express or that the demands
would not also be part of a direct right to abortion. Certainly the need to balance
different rights and considerations against one another arises with regard to
other rights without requiring the insertion of choice between the right and the
act. If women’s abortion rights should be balanced against a fetus’s right to life,
so too must property rights be balanced against rights to free speech, rights to
domestic tranquility against the right to own guns, and so on. In these cases, the
courts do not see the need for an intermediary step declaring a choice for domes-
tic tranquility, say, against a right to choose to own guns. The question remains,
then, why an intermediary step should be needed in the case of abortion.
A second way of trying to answer this question says that the intermediary
step is necessary because abortion rights are controversial in a way that the
rights to free speech or the practice of one’s religion are not. These latter rights
can lead to controversy, of course—for example, when the right to free speech
protects hate speech or when religious freedom conflicts with recommendations
by medical professionals. Nevertheless, by interposing choice between a right
and an action, by viewing the right in question as a right to choose to have an
abortion as opposed to a direct right to have an abortion, we imply that abortion
is controversial as part of its nature in a way that speech and religion are not.
Indeed, in this regard, the right to choose that Kimmey thinks precludes a judg-
ment about moral licitness instead precisely expresses one. We have a right to
choose rather than a right to an abortion because, as Americans, we are divided
on abortion’s moral permissibility and because many of us therefore dispute its
legal permissibility.
Yet, here again, the interpretation falls short of providing a full justification
for stressing a right to choose over a right to act, for possible division and con-
troversy are part of the point of many rights and these remain direct rights rather
than rights to choose. Look again at the way in which the right to free speech
encompasses protection for hate speech. In the same way that abortion is inher-
ently controversial, so too is hate speech. It is speech intended to insult, demean,
offend or threaten people or groups based on their race, color, religion, national
origin, sexual orientation, disability, or some other trait. As such, many Ameri-
cans think hate speech ought to be regulated. Still, we have a right to engage in
it. Moreover, we have a direct right to engage in it, not a right to choose
to engage in it. Rights in general are freedoms we possess at least in part
because others may disapprove of our beliefs and their expressions in words or
practices. To this extent opposition and controversy are part of their very reason
for being.
If we cannot justify the distinction between rights to activities and rights to
choose to engage in activities by pointing either to the need to balance rights
against one another or to the controversies surrounding abortion, how are we to
understand the distinction? In my view, interposing choice between the right
166 Georgia Warnke
and the activity qualifies abortion rights. The rights to free speech and the free
exercise of our religion are direct rights, rights about which we can be proud. In
contrast, if we possess a right not to have an abortion but rather to choose to
have an abortion, this extra step suggests reservations: although we may have an
abortion, it would be better if we did not. Surely such an implication would fol-
low from a right to choose to engage in hate speech. In this instance, the right to
choose to speak hatefully would imply the proviso that we could do so if we
really wanted to or insisted on doing so but that all would prefer that we did not.
Likewise, is to be free to choose to have an abortion not implicitly to suggest
that one ought perhaps avail oneself of another option?
This interpretation of the right to choose as a qualified right finds support, I
think, in the begrudging tone of some of the Supreme Court’s abortion deci-
sions. The Casey decision, for example, expresses its reaffirmation of the right as follows:
The mother who carries a child to full term is subject to anxieties, to physical constraints,
to pain that only she must bear. That these sacrifices have from the beginning of the
human race been endured by woman with a pride that ennobles her in the eyes of others
and gives to the infant a bond of love cannot alone be grounds for the State to insist she
make the sacrifice. Her suffering is too intimate and personal for the State to insist, with-
out more, upon its own vision of the woman’s role. 23
Women, the court suggests, should be proud of the sacrifices they have endured “from the beginning of the human race.” Indeed, women should recog-
nize the way these sacrifices serve to ennoble them and to enhance the well- being of their children. Of course, if some contemporary Americans are unwill-
ing to make these sacrifices, they may choose to have an abortion. At the same time, the Casey court thinks their choice should not be too easy and denies that such conditions on access to abortion as waiting periods and parental notifica-
tion are undue. Likewise, the 2007 Gonzales v. Carhart decision outlawing a particular abortion procedure finds it necessary to remind women that what they are choosing to abort is the “same infant life they once created and sustained.”
Indeed, it finds it “unexceptionable to conclude some women come to regret” this choice and it continues, “It is self-evident that a mother who comes to regret
her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of
her unborn child, a child assuming the human form.” 24
By pointing to sacrifice, pride, and nobility, on the one hand, and to regret,
grief, and anguish, on the other, the Casey and Carhart decisions highlight the implications of a right to choose. In effect they tell women that while they have
legal access to abortion, they should not make use of it. Rather, they should
acknowledge that taking up this option may be unworthy of the history of their
sex and, furthermore, lead to remorse. Interposing choice between the right and
the action serves to underline this acknowledgement. As an intermediary step, the
The Right to Choose 167
interposition writes into the right a demand that women consider all the possible
downsides of their action in a way that other rights do not. To be sure, one ought
perhaps always think about the possible downsides of one’s actions. The issue,
here, however, is the significance of writing this imperative only into some laws.
In the next section of this article, I want to turn from an examination of the
meaning of a right to choose to consider the nature of the experiences surround-
ing pregnancy, birth, and abortion. The Carhart court admits that “it can find no reliable data” to substantiate the “unexceptional” conclusion to which it comes:
namely that some women come to regret their abortions. What about other expe-
riences, then? Even if some women come to regret their abortions are there not
other responses that might be equally relevant and that possess an equal claim to
be considered in our policies regarding abortion? Ought these policies not try to
reflect a broad expanse of experiences?
Experiencing Pregnancy
Emily Rapp writes,
This week my son turned blue, and for 30 terrifying seconds, stopped breathing. Called
an “apnea seizure,” this is one stage in the progression of Tay-Sachs, the genetic disease
Ronan was born with and will die of, but not before he suffers from these and other kinds
of seizures and is finally plunged into a completely vegetative state. Nearly two years old,
he is already blind, paralyzed, and increasingly nonresponsive . . . I love my son more
than any person in the world and his life is of utmost value to me . . . This is one set of absolute truths.
Here’s another: If I had known Ronan had Tay-Sachs . . . I would have had an abortion. Without question and without regret . . . I’m so grateful that Ronan is my child. I also wish he’d never been born; no person should suffer in this way—daily seizures, blindness, lack
of movement, inability to swallow, a devastated brain—with no hope for a cure. 25
Reflecting on her abortion, Caitlin Moran writes,
Of course there was every chance that I might eventually be thankful for the arrival of a
third child. . . . But I am, personally, not a gambler. I won’t spend £1 on the lottery, let alone take a punt on a pregnancy. The stakes are far, far too high. I can’t agree with a
society that would force me to bet on how much I could love under duress. 26
Rapp’s and Moran’s accounts both imply their support for legal access to
abortion. Yet, significantly, each emphasizes obligations of love more than
options for choice. Rapp loves a son whose short life will never be free of daily
misery and progressive deterioration. Abortion must be legal and available, she
suggests, because the state cannot coerce someone knowingly to bear a child who
will suffer in the way Ronan suffers. To do so is to force upon a loved child and
his or her loving parents a pain beyond imagining and one that the state has no
business inflicting upon anyone. For her part, Moran thinks access to abortion
168 Georgia Warnke
services are necessary lest one be compelled to wager on the possibility of loving
a child one does not know if one will love. Moreover, she insists on this point all
the more forcefully because of the love she possesses for the two children she
already has. “It’s only after you have had a nine-month pregnancy,” she writes,
labored to get the child out, fed it, cared for it, sat with until 3 a.m., risen with it at 6 a.m.,
swooned with love for it, and been reduced to furious tears by it that you really under-
stand just how important it is for a child to be wanted. How motherhood is a game you
must enter with as much energy, willingness, and happiness as possible. 27
If Rapp supports legal abortion because she loves her son, Moran does so
because she cannot imagine giving birth to a child she might not love enough. To
be sure, Rapp and Moran both make references to choice. Rapp criticizes former-
Senator Rick Santorum’s objection to prenatal testing—objection based on the
grounds that the information women receive from such testing increases the num-
ber of abortions. As she responds, “It is a woman’s right to choose what to do
with the information . . . and . . . this choice is—and must be—directly related to that individual’s experiences. What’s at stake here is not the issue of testing, but
the issue of choice.” 28
Likewise, Moran says, “The idea that I might not—in an
earlier era, or a different country—have a choice in the matter seems both emo-
tionally and physically barbaric.” 29
At the same time, the accounts both writers
give of their experience suggest reasons for ensuring the legal availability of abor-
tion that speak less to choice and more fundamentally to responsibilities flowing
from love. That love may be for the family one already has or for the child not
now to be born, either because one cannot fathom causing him or her pain or
because one cannot take the risk of not loving him or her with all one’s heart.
That love may also dictate against bringing a child into what its potential parents
think are dire circumstances. These cases suggest that abortion need not always
be the result of a choice between options but can rather issue from the require-
ments of love.
The accounts Rapp and Moran give of their experiences suggest a second
form of obligation underwriting the necessity of legal access to abortion serv-
ices: deep ethical convictions about the value of human life. Rapp appreciates
that Santorum finds that “all life is inherently valuable, no matter how compro-
mised or of what limited quality.” Nevertheless, she demands respect for a dif-
ferent belief as well, one according to which the inherent value of human life
tells against giving birth to a life “as compromised—and as terrible—as my
son’s.” 30
For her part, Moran writes, “By whatever rationale you use, ending a
pregnancy 12 weeks into gestation is incalculably more moral than bringing an
unwanted child into this world.” 31
Each of these claims links abortion not only
to love but also to settled moral beliefs. Santorum thinks all human life has
value for its possessor and points to his daughter, Bella, born with Trisomy 18
but “surrounded by the love and comforts of her family.” 32
Rapp, however,
thinks that what she calls “true quality of life” involves “relationships, thoughts
The Right to Choose 169
and pleasant physical experiences.” 33
Since her son will never have any of these
she is adamant that the state ought not to compel any one to give birth to a child
with his prospects. For her part, Moran cannot understand the morality of giving
birth to an unwanted baby. To be sure, she recognizes that she might be grateful
for the child in the future. Opponents of legal access to abortion might also
argue that some family could adopt the child. Yet Moran suggests that, for her,
these future possibilities cannot affect the ethics of her present actions. For her
the facts remain that at present no one wants the fetus growing inside her and
that to allow it to continue to grow is unconscionable.
Settled convictions such as these, about the value of human life and what
respect for it entails, are closely related to religious beliefs. In fact, Santorum’s
view is a religious belief. Urging a rejection of abortion even in cases of rape,
he maintains “that the right approach is to accept this horribly created . . . but nevertheless a gift in a very broken way, the gift of human life, and accept what
God has given to you.” 34
The settled convictions others hold about abortion and
human life may not refer to God but nonetheless also take it to be sacrosanct.
Take those opponents of abortion rights who are not particularly religious but
think that human life possesses value as a human physical organism that comes
to be at conception. In their view, respect for this value forbids any interference
in its development, whether inside or outside the womb. 35
And, take Rapp’s sug-
gestion that the value of human life is bound up with opportunities for relation-
ships, thoughts, pleasures, and aspirations. On this view, respect for human
life’s value may lead one not to give birth to a child who can have none of these
opportunities. Others who support legal access to abortion may have no particu-
lar views about what gives human life its intrinsic value. Nonetheless, they may
still honor that value, as Moran does, by not giving birth when one is unsure of
one’s ability or desire to nurture another human life.
Importantly, like the direction of our loves, our ethical beliefs and settled con-
victions about human life are not ones we can choose in the sense of being able to
opt into or out of them. They may come from our upbringing, from our experien-
ces, from our faith, or from our lack of faith. What they do not involve, however,
is choice. Indeed, here again, we can reverse the direction of Kimmey’s argument.
She argues that because individuals must be free to choose abortion even against
their own consciences, the freedom to choose must be at the base of abortion
rights. Yet, the accounts that Rapp, Moran, and even Santorum offer suggest the
opposite. We must have a right to an abortion because of our consciences and
because we cannot pick them. We do not choose either our faith or the more secu-
lar but still inviolable ways we understand and respect human life’s value.
Moran suggests a third aspect of the experience of an unintended preg-
nancy: namely, the well-developed self-understanding we often have as adults.
Moran gives two accounts of her experience. “Not for a second do I think I
should have this baby,” she writes about discovering she is pregnant. “I have no
dilemma, no terrible decision to make—because I know, with calm certainty,
that I don’t want another child now, in the same way I know absolutely that I
170 Georgia Warnke
don’t want to go to India, or be blond, or fire a gun. This isn’t who I am going to
be, again.” 36
Later she says,
I can honestly say that my abortion was one of the least difficult decisions of my life. I’m
not being flippant when I say it took me longer to decide what countertops to have in the
kitchen than whether I was prepared to spend the rest of my life being responsible for a
further human being, because I knew that to do it again—to commit my life to another
person—might very possibly stretch my abilities, and conception of who I am, and what I
want and need to do – to the breaking point. 37
Of course, Moran’s comparison of abortion and countertops may, indeed,
sound flippant and even reduce abortion to a consumer good in just the way that
Solinger fears. Nevertheless, I think Moran makes an important point. Despite
the talk of choice, the experience of discovering one is pregnant can involve an
immediate knowledge of what one is going to do. One knows that one is going
to take the pregnancy to term or one knows that one is not. Moran’s certitude is
echoed in the claims of other women, both poor and not poor, both women of
color and white women. Florence Rice, making $12.41 a week in the 1930s,
found herself pregnant for a second time but “knew I wasn’t going to have any
more babies. . . . It was as simple as that.” Gloria Steinem, pregnant and in the England waiting for a visa to go to India “was not ambivalent.” Rather, she
writes, “I did not see any way that I could possibly give birth to someone else
and also give birth to myself.” Loretta Ross writes, “I was so crystal clear. I
never waivered. It was a challenge to graduate from high school with a baby
that woke up at four in the morning. . . . I didn’t see anything romantic or cute or inevitable about being the mother of more than one kid at my age.”
38
Contrast these secure self-understandings with the Carhart decision and its focus on regret. Contrast them, as well, with a speech the president of NARAL
Pro-Choice America, Nancy Keenan, made in 2008 in which she stressed the
moral complexity of the choice to seek an abortion. “Nearly every woman I have
met,” she said, “who has ever had to deal with an unintended pregnancy is con-
flicted. She wrestles with the morality of this issue. She wrestles with her own
conscience.” 39
Keenan insists that those who support legal access to abortion are
also conflicted. “They wrestle with the morality of this issue. They wrestle with
their conscience.” 40
Likewise in a column from 2004, Anna Quindlen writes,
People will keep on reducing this discussion as best they can: God and freedom, rights
and wrongs. But this will never be an easy issue to parse. It can’t be; instead of fitting
neatly into black-and-white boxes, it takes place in that messy gray zone of hard choices
informed by individual circumstances and conscience. . . . We insult women by suggest- ing that this issue is easily encapsulated in aphorisms. We insult ourselves by leaving its
complexities unexamined. 41
Keenan and Quindlen might be trying here to emphasize the degree to
which people faced with unexpected or unsustainable pregnancies take their
The Right to Choose 171
situation seriously, the extent to which their choice of an abortion is not, as it
were, an impulse buy. Still, they arguably go too far in the opposite direction
and exclude the important experiences of women such as Moran, Rapp, Rice,
Ross, and Steinem. If Keenan has met mostly people who wrestle with the issue
of abortion and their conscience, and if Quindlen thinks that abortion decisions
necessarily occur “in that messy gray zone of hard choices,” then neither has
taken the measure of other equally important reactions to unexpected or unsus-
tainable pregnancies. Moran, Rapp, Rice, Ross, and Steinem do not wrestle with
their consciences. Moran and Rapp make it clear that it is rather precisely their
consciences that direct the course of action they take or would have taken had
they had the requisite information. Nor does this course of action always
demand a great deal of thought or deliberation—not because women are whim-
sical or flippant, but because they often know themselves, are aware of the
demands of love, and possess deep ethical convictions about what gives human
life its value. In omitting these facets of experiences of unexpected or unsustain-
able pregnancies and in stressing, instead, only experiences of moral conflict
and difficult choices, Keenan and Quindlen attempt to provide support for abor-
tion access but they do so at the expense of large numbers of people whose
experiences they obscure. These people have no conflicts and need no lengthy
examinations of options. Their experience is not one of hard choices but one of
love, firm self-knowledge, and deep ethical conviction.
To make this point is not to ignore or dismiss those for whom the abortion
decision does involve moral complexity and hard choices. Nor is it to say that
moral complexity and hard choices cannot coexist with reasons of love, firm
self-knowledge, and deep ethical conviction. Rather, the point here is to empha-
size the range of experiences to which the circumstances of pregnancy, birth,
and abortion give rise and to ask that the full expanse of these experiences be
included in our thinking about them. The insights that Moran, Rapp, Rice, Ross,
and Steinem offer us reveal the interpretive limits of choice as an understanding
and expression of that expanse. Important responses to the discovery that one is
unexpectedly or unsustainably pregnant are not limited to questions of choice
and the complexity of choice. Rather, we can situate responses to unexpected or
unsustainable pregnancies along a continuum ranging from the knowledge that
one could never have an abortion to the knowledge that one could never bring
an unwanted or severely compromised fetus to term. 42
If Santorum is on one
end of this range and Moran on the other, there are many gradations between
them. At the same time, it is unreasonable to suppose that the language of choice
suffices to express all that is at stake.
The Right and Vocabulary of Choice
Thus far, I have argued that there are two problems with the recourse to
notions of choice as a basis for grounding the legality of abortion. The first con-
cerns the way a right to choose is to be understood. A right to choose differs
172 Georgia Warnke
from other rights that are not rights to choose to take a certain action but direct
rights to act. This difference is not necessitated by the balancing of rights that
legal access to abortion requires as balancing is part of all our rights. Nor is the
distinction required to reflect the controversial nature of abortion because, again,
we possess rights to other controversial actions, including hate speech. The
nature of the thoughts and actions protected by our rights is at least part of the
reason they need protecting. The right to choose can therefore be plausibly
understood as a way to serve notice that the right to an abortion is less straight-
forward and more qualified than other rights. Hence while abortion remains
legal, the availability of abortion services or access to them is by no means guar-
anteed; in fact, it is already severely limited in many states. The second problem
with the recourse to the notion of choice concerns the experiences at issue and
the ability of a vocabulary of choice to understand and articulate their full range.
If we appeal primarily to choice to understand experiences surrounding preg-
nancy, birth, and abortion, we risk obscuring considerations of love, convictions
of conscience, and confident self-understandings. These are at least equally
important as our options but pertain, instead, to commitments and obligations.
In the remainder of this article, I want to examine the way in which these
two problems with the vocabulary of choice are connected. Put otherwise, the
question here is how an adequate understanding of experiences such as Rapp’s
and Moran’s might be connected to appropriate articulations of rights. Miranda
Fricker has recently explored a similar question and alerted us to the importance
for issues of rights and justice of appropriate understandings of significant areas
of experience. 43
I therefore want to look at an example she uses to clarify her
point: her description, following Susan Brownmiller, of the workshops that led
to advocacy for laws against sexual harassment.
One of the participants in these workshops was Carmita Wood, who had
recently resigned her position as an administrative assistant in the Department
of nuclear physics at Cornell University. For most of her stint in the department,
a distinguished professor routinely jiggled his crotch in front of her and
attempted to touch, fondle, and kiss her. She tried to get him to stop, avoided
him as much as possible, and asked to transfer to another department. She also
developed chronic back and neck pains and when her request to transfer failed,
she quit. Although she subsequently applied for unemployment benefits she was
denied because she could give no justification for her resignation other than
vaguely gesturing toward personal considerations.
For Fricker, this case reflects what she sees as a hermeneutic lacuna in the
interpretive and linguistic resources available for understanding the experience
at issue. The available interpretive and linguistic resources do not allow for an
understanding of Wood’s experience that conveys what it is and that can
adequately articulate its oppressive character. Moreover, this lacuna reflects a
form of injustice because it affected the individuals involved differently: while
it proved no hardship to the distinguished professor, it caused Wood to resign
her position. In Fricker’s view, the lacuna stems from Wood’s marginalization
The Right to Choose 173
as a woman. The prevailing understanding of the sort of experience that Wood
endured conceived of it as a form of flirtation and viewed women who objected
to it as prudes with poor senses of humor. This understanding, Fricker argues,
was possible because women lacked power in the workplace and hence lacked
the authority or credibility to develop and articulate their own understandings of
the experiences at issue. As she puts her point,
What women like Carmita Wood had to contend with at work was no plain epistemic bad
luck, for it was no accident that their experience had been falling down the hermeneutical
cracks. As they struggled in isolation to make proper sense of their various experiences
. . . the whole engine of collective social meaning was effectively geared to keeping these obscured experiences out of sight.
44
After Wood made her way to the women’s consciousness-raising work-
shops at the university, she found that others shared her experience and pos-
sessed the same sense, without quite being able to articulate why, that it
constituted a form of oppression. Brownmiller describes the results of these
workshops as almost blinding flashes of insight in which participants came to
recognize the commonalities in their situations and could finally understand
what they represented: “Sexual harassment! Instantly we agreed. That’s what it
was.” 45
What relevance does this case have for the case of abortion rights? Having
achieved an appropriate understanding of what the experience in question was,
one of sexual harassment rather than harmless flirtation, advocacy groups were
able to secure legislation protecting women from it. Sexual harassment could
now be understood as a form of sex discrimination that violated multiple laws
against such discrimination in the work place, including Title VII of the Civil
Rights Act of 1964. This outcome points to the importance of understanding sig-
nificant experiences in adequate and appropriate ways. It matters how we under-
stand and articulate these experiences, for if we misunderstand and misarticulate
them, we cannot expect to prevent the injuries they reflect or protect the values
they involve. With regard to abortion rights, this outcome suggests that if we
want to place these rights on secure ground we need to develop adequate and
appropriate understandings of the span of experiences that pregnancy, birth, and
abortion involve. I have argued that these involve not only and not always
choice but also love, ethical conviction, and self-understanding.
To be sure, the two cases of sexual harassment and abortion are not com-
pletely parallel. Understanding experiences of pregnancy, birth, and abortion
as issues predominantly of choice is not the same as understanding unsolicited
advances in the workplace as harmless flirtations. Reference to choice does not
completely marginalize women’s accounts of their experiences, even if it
stresses only some of those accounts. To the contrary, the understanding of the
experiences of pregnancy, birth, and abortion as ones properly posing choices
has secured access to abortion for countless women. At the same time, this
174 Georgia Warnke
understanding has thus far failed to secure access to abortion and, indeed,
reproductive health services in general, for many women—for poor women,
for example, or women living in states that place such stringent conditions on
access that it is hardly available at all. To this extent, the comparison with
laws against sexual harassment is apt. If we need to move beyond an under-
standing of women’s experiences of unwelcome advances in the workplace
that sees them as harmless flirtations, we also need to move beyond an under-
standing of experiences leading to abortion that sees them primarily as matters
of choice. To make this point is not to deny that experiences leading to abor-
tion often can be matters of choice. Nevertheless, if we are to enact effective
protective measures, we need to attend to all the facets of the experience that
need protecting.
What might we expect from a fuller understanding of the experiences sur-
rounding pregnancy, birth, and abortion? Support for legal access to abortion
that relies on a right to choose has not been adequate either as an expression
of all these experiences or as a defense against the current “legislative
onslaught” threatening access to abortion. In contrast, support for legal access
to abortion that points to love, ethical conviction, and self-knowledge roots
the legality of that access in the liberty of conscience. For Ronald Dworkin,
the close relation between religious and more secular views of the sacrosanct
value of human life—such as those articulated by Santorum, Rapp, and
Moran—means that all views are entitled to First Amendment protection. All
take human life to be sacred. To the extent that abortion is one way of honor-
ing that sacredness, it must remain legal. 46
I think we can strengthen this
claim by pointing out the other aspects of conscience that orient our views of
abortion. We cannot be legally compelled to change what we take to consti-
tute the value of human life. Nor can we be legally compelled to change how
we love those we love or who we understand ourselves to be. To the extent
that these experiences and understandings ground our responses to conceiving
and giving birth, we cannot be commanded to have one response to these
rather than another. At stake in the issue of abortion is not simply or primarily
respect for women’s choices and options but rather respect for their deepest
obligations and commitments. Eliminating the intervening step implied in a
right to choose to have an abortion and defending a right to have an abortion
simpliciter more adequately expresses this respect. A right to an abortion must arguably be balanced against a fetus’s right to life and thus be part of a
gradualist approach to abortion and fetal development. At the same time, a
direct right to abortion honors and protects the freedom of conscience in our
differing ways of loving, defining human life’s value, and understanding who
we are.
I would like to thank the members of the So Cal Feminist Philosophy Salon and the two anonymous reviewers for the Journal of Social Philoso- phy for invaluable comments and suggestions on an earlier draft of this article.
The Right to Choose 175
Notes
1 Retrieved June 19, 2014, from http://www.guttmacher.org/statecenter/updates/2013/state-
trends42013.html 2
See, for example, Jennifer Nelson, Women of Color and the Reproductive Rights Movement (New York: New York University Press, 2003). Also, see “Sterilization of Female Inmates:
Some Inmates Were Sterilized Unlawfully, and Safeguards Designed to Limit Occurrences of
the Procedure Failed,” California State Auditor Report 2013-120, June 2014. 3
From http://www.nytimes.com/2014/07/29/us/politics/advocates-shun-pro-choice-to-expand-message.
html?module=Search&mabReward=relbias%3Ar%2C%7B%222%22%3A%22RI%3A16%22%
7D&_r=0 4
Marlene Gerber Fried, From Abortion to Reproductive Freedom: Transforming a Movement (Cam- bridge, MA: South End Press, 1999), 6.
5 Betty Friedan, “Abortion: A Woman’s Civil Right,” in Linda Greenhouse and Reva B. Siegel, eds.,
Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Rul- ing (New York: Kaplan Publishing, 2010), 39–40.
6 Jimmye Kimmey, “Right to Choose Memorandum,” in Before Roe v. Wade, ed. Greenhouse and
Siegel, 112–13. 7
For tensions between the two, see Rosalind Petchesky, “Reproductive Freedom: Beyond “A Wom-
an’s Right to Choose,” Signs 5, no. 4 (Summer 1980): 661–685. For extensions of the equality argument, see Cass Sunstein, “Neutrality in Constitutional Law (with Special Reference to Por-
nography, Abortion, and Surrogacy,” Columbia Law Review 92, (1992): 1–52; Eileen L. McDo- nagh, Breaking the Abortion Deadlock (Oxford: Oxford University Press, 1996), 11; and Georgia Warnke, Legitimate Differences: Interpretation in the Abortion Controversy and Other
Public Debates (Berkeley: University of California Press, 1999), chap. 4. 8
Linda Greenhouse and Reva B. Siegel, Preface to “Everywoman’s Abortions: “The Oppressor Is
Man” (March 27, 1969) by Susan Brownmiller,” in Before Roe v. Wade, ed. Greenhouse and Siegel, 127.
9 Roe v. Wade, 410 US 113 (1973), 152. 10 Harris v. McRae, 448 US 297 (1980), 312. 11
Ibid., 316. 12 Webster v. Reproductive Health Services, 492 US 490 (1989), 509. 13 Planned Parenthood of Southeastern Pa. v. Casey, 505 US 833 (1992). 14
Catharine A. MacKinnon, “Privacy and Equality: Beyond Roe v. Wade,” in MacKinnon, Feminism
Unmodified: Discourses on Life and Law (Cambridge, MA: Harvard University Press, 1987). 15
Rosalind Pollack Petchesky, Abortion and Woman’s Choice: The State, Sexuality and Reproduc-
tive Freedom, Revised ed. (Boston: Northeastern University Press, 1984, 1990), 11. 16
Rickie Solinger, Beggars and Choosers: How the Politics of Choice Shapes Adoptions, Abortion, and Welfare in the United States (New York: Hill and Wang, 2002), especially chaps. 1 and 5.
17 Ibid., 6.
18 See Robin West, “From Choice to Reproductive Justice: De-Constitutionalizing Abortion Rights,”
Yale Law Journal 118 (2009): 1410. 19 Planned Parenthood of Southeastern Pa. v. Casey, 846. 20
Retrieved April 8, 2015, from http://www.prochoiceamerica.org/what-is-choice/abortion 21
Retrieved June 19, 2014, from http://www.aclu.org/reproductive-freedom. 22 Planned Parenthood of Southeastern Pa. v. Casey, 846. 23
Ibid., 852. 24 Gonzales v. Carhart, 550 US 124 (2007), 159–60. 25
Emily Rapp. “Rick Santorum, Meet My Son,” in Slate, retrieved February 27, 2012, from http://
www.slate.com/authors.emily_rapp.html 26
Caitlin Moran, How to Be a Woman (New York: Harper Perennial, 2012), 268. 27
Ibid., 267.
176 Georgia Warnke
28 Rapp, “Rick Santorum, Meet My Son.”
29 Moran, How to Be a Woman, 267–68.
30 Rapp, “Rick Santorum, Meet My Son.”
31 Moran, How to Be a Woman, 268.
32 Retrieved April 8, 2015, from http://townhall.com/columnists/ricksantorum/2013/03/19/celebrat-
ing-bella-our-gift-from-god-n1537653/page/full 33
Rapp, “Rick Santorum, Meet My Son.” 34
Quoted in http://www.huffingtonpost.com/2012/01/23/rick-santorum-abortion-rape_n_1224624.
html, retrieved January 23, 2012. 35
Patrick Lee, “The Pro-Life Argument From Substantial Identity: A Defence,” Bioethics 18, no. 3 (2004): 250.
36 Moran, How to Be a Woman, 264–65.
37 Ibid., 268.
38 Jennifer Baumgardner, Abortion and Life (New York: Akashic Books), 76, 79, and 93,
respectively. 39
Nancy Keenan. Retrieved April 8, 2015, from http://www.prochoiceamerica.org/assets/files/
roe35_texas_speech.pdf, 6 40
Ibid., 7. 41
Anna Quindlen, “Life Begins at Conversation: Those of Us Who Support Reproductive Rights
Like to Say that Polls Show Most Americans Are on Our Side. The Truth is That They Are on
Our Side, But” <http://www.highbeam.com/doc/1G1-125153741.html> (2004). 42
I owe this formulation to Kayley Vernallis. 43
Miranda Fricker, Epistemic Injustice: Power and the Ethics of Knowing (Oxford: Oxford Univer- sity Press, 2007).
44 Ibid., 153.
45 Quoted in Fricker, Epistemic Injustice, 153.
46 See Ronald Dworkin, Life’s Dominion: An Argument About Abortion, Euthanasia, and Individual
Freedom (New York: Knopf, 1993), esp. chaps. 3 and 6.
The Right to Choose 177
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