an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
My recent post, “How the Religious Right Promotes Abortion,” elicited a quick response from Michael New of the Witherspoon Institute, which was just as quickly endorsed by Rick Garnett and Thomas Peters. Prof. New wants us to believe that, even though a very large number of American women receive no instruction about contraception before their first sexual experience, giving them that information would have no effect whatsoever on the rate of unintended pregnancy. Now June Carbone and Naomi Cahn, on whose work I rely in that post, have written a response, which I post below. They answer New’s arguments better than I could.
I add only that it is astoundingly stupid and tragic that this is what we are arguing about. One of the rare areas of common ground between opponents and supporters of abortion rights is that neither side thinks that unintended pregnancy is a good thing. We should be able to come together on measures that would actually reduce the rate of unwanted pregnancy, and thus, inevitably, reduce the abortion rate. That might even help the anti-abortion cause in the long run, because it would reduce the number of American women who have had abortions (a risk that I, a supporter of abortion rights, am willing to take). Yet instead, we are having this silly argument. It is dispiriting.
Here is what Carbone and Cahn write:
There are more than 66 million women of childbearing age in the US, and 90% of them will use birth control at some point in their lives. Contraception is part of the fabric of women's lives from the beginning of sexual activity through menopause. Women use contraception so that they can delay pregnancy, or because they want to space out their children, or because they don’t want any more children. We argued in our book, Red Families v. Blue Families, that if there is to be an approach to family values that transcends the culture wars it should include a change in emphasis from abortion to contraception. The first is an intrinsically divisive issue; the second should not be. Yet, every time legislators advocate recognition of women’s needs, conservatives work to derail them. When President Obama proposed strengthening family planning efforts in the stimulus package, Republicans blocked the measure. When Senator Barbara Mikulski suggested that health care reform address contraception, conservatives falsely insinuated that the proposal would increase abortions. Most recently, Professor Andrew Koppelman of Northwestern argued that the middle ground in the abortion fight is greater support for contraception, and a prominent conservative blog responded by rejecting the very idea that contraception could possibly have anything to do with reducing abortions.
These assertions are astounding. The most frequently asserted half-truth making its way across the internet is that most women who have abortions did use some form of birth control, therefore “there is relatively little the government can do to increase contraceptive use among sexually active women.” (Michael New, Witherspoon) The veiled message, of course, is that the only way to prevent abortions is prevent sex. We happily married women who do not want ten children each should take note.
More critically, though, the distortions threaten to widen the already huge gulf between rich and poor in control of unwanted childbearing. Here are the facts. Publicly funded family planning services helped prevent almost two million unwanted pregnancies that experts estimate would have resulted in over 800,000 abortions, and improvements in contraceptive access and effectiveness are the single biggest explanation for the drop in abortions in the nineties. It is also true, as conservatives claim, that the majority of women who have abortions were using contraceptives – and that is exactly the point. The government can increase the effectiveness of contraceptive use, preventing even more abortions, and it is time to acknowledge that conservatives stand in the way of doing so.
First, let’s recognize what every sexually active woman knows: contraception is a messy business. Yes, most sexually active women use it and, yes, almost everyone can afford a condom. What pro-life conservatives rarely discuss is that long term injectibles are easier to manage than the pill, women who have had a child find diaphragms less reliable than those who have not, IUDs, which have become substantially safer over the last two decades, require a doctor’s involvement and monitoring, condoms, which women cannot control, are more effective when used together with other methods, and a thousand other details exist that make contraceptive use with consistent medical care much more reliable than contraceptive use without such access. The big story from the nineties is that doctors have finally come up with safer and more effective contraceptives, and more consistent and effective contraception explains 85% of the drop in teen pregnancies and the most substantial part of the drop in abortions.
Second, we should recognize that improvements in the sophistication and effectiveness of contraception have increased the class-based disparities in unintended births. The overall unintended pregnancy rate has stayed about the same, but in the nineties, it dropped 20% for college educated women and increased 29% for poor woman. The simple explanation is that avoiding unwanted pregnancy has become easier – but only for those who have systematic access to medical care.
So why are conservatives so reluctant to come on board? We suspect that it is because doing so requires acknowledging a dirty little secret. The unintended pregnancy rates of college educated women have fallen in large part because of the benefits of taxpayer subsided health insurance. The Republican party has been working overtime to make sure that other women do not have access to the same benefits.