[Update: I would add that the idea this law forces us to think about touchy issues is a perspective as curious as saying smearing Shirley Sherrod -- the video by the way is truly powerful as is the old farmers' appearance on CNN -- forces us to think about racism. Victimization of others is not the only way for us to be educated, is it? .... Done. Glad it was such a "teachable moment" for you btw.]
Sherry F. Colb is not someone feminists and others might fear of not "getting it," but her recent essay "An Oklahoma Abortion Law Raises New and Different Rights Questions" raises just such red flags. The essay concerns an Oklahoma law that "prevents a patient from suing her doctor for failing to reveal the presence of a fetal abnormality." Prof. Colb argues that this is a fairly atypical abortion restriction, since such laws "generally make it more difficult for a pregnant woman who wants an abortion to get one in the time, place, and manner of her choosing." In particular:
In other words, the actual Oklahoma law -- and the hypothetical law that bans outright the disclosure of fetal abnormalities -- do not have the effect of pressuring or forcing a pregnant woman to continue a pregnancy against her will. What these laws do, instead, is to limit the options of women who want to remain pregnant, but only on the condition that their babies will be born normal.
This is a very curious way of looking at it in my eyes. A woman who thinks about having an abortion desires to be informed of all relevant information necessary to determine if the right is best for her. If important information -- such as perhaps the child is not her husband's -- is kept from her, she is in effect a victim of a fraud. It is essential in any number of cases to know all the details. Yes, she is not "forced" to do anything here -- she is potentially tricked into it! This is fundamentally wrong.
The essay cites Bodily Integrity and Offspring Selection interests, but does so in too narrow ways. The first is not merely a negative matter of "not" having a child in various cases, but a matter of complete control and knowledge of one's body and health. The second also includes knowing all about the offspring in question, even if there is a fear that such knowledge will lead to "wrong" choices. Colb's essay also clearly considers "trusting the woman" as a matter of debate. After all, that might mean in a few cases, women will abort a girl or a potential homosexual. But, so what? Freedom of religion includes the freedom to believe and promote hate. Why is this different? Is a woman's body something so open to compromise?
As is sometimes the case with artificial thought experiments, the essay ignores important issues for effect. A possible legitimate reason for such a law is offered this way:
If one were to consider the fetus the equal of a newborn baby, then it would seem to follow that a woman considering whether or not to remain pregnant generally would not be entitled to find out that her fetus suffers from an anomaly. In other words, once a baby is at issue, the woman can no longer claim the right to obtain information that would facilitate a decision to kill the baby because he suffers from Down Syndrome or some other anomaly.
How about if she has to prepare herself emotionally and otherwise to deal with the baby's birth defect? Again, for some reason, the author does not find this quite relevant matter a reason for requiring the doctor to provide the information. Since it concerns something inside of her, I would think that alone would warrant the information be told, even if the girl/woman is not allowed to abort. This seems to be the idea: it is a backhanded way to try to limit certain types of abortions (sex specific abortions are also cited). This seems patently unconstitutional but again even in respect to the sex of the child, it would be useful to know in various cases. But, in this context, several concerns -- including economic and preparing to care for the special needs of the child -- arise.
Finally, the essay doesn't raise the problems with a doctor having the right to hold back information that would be quite important to the patient (including those who don't want to abortion) surely out of some dubious criteria. What cases would this arise? I reckon too: some sort of negligence where the information is not provided out of neutral action or because of moral beliefs of the medical people involved. The emotional health of the patient being negatively affected alone suggests the two are really interlocked. The essay however assumes the law makes us think:
For someone who believes that a fetus is morally distinct from a baby, and that the right to abortion is at least in part about deciding which children one wants to have or avoid having, the law requires us to confront our own prejudices and to ask ourselves whether a genetically-impaired future is truly worse than no future at all.
Because we do not have to face up to that fact now?! Prof. Colb's musings reminds me of Justice Ginsburg's dissent in Gonzales v. Carhart:
The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks.
Colb ponders a case for hiding certain information from girls and women because they might use it unwisely, even though the information is important for those who and who do not have abortions. This is to me a horrible result, robbing someone of bodily autonomy and the right to make their own moral choices. It also opens up the possibility of abuse of power by the medical profession, akin to pharmacists denial morning after pills. And, doing so based on limited discussion and ignoring that the issue here is far from novel. Women, for instance, have to determine complex moral decisions on "worth" in a myriad of cases, including poverty, domestic and sexual abuse, teen pregnancy and so forth.
Why is this such a novel situation? Why should we imagine it is just to withhold fundamental information whose withholding cannot only inhibit full choice but negatively affect even those who wouldn't abort even with said information? Colb imagines:
This question [cited above] is not an easy one to answer, but the Oklahoma statute effectively raises it, without confounding the issue with bodily-integrity concerns in the way that a direct restriction on abortions for "bad reasons" would. Thus, whether intentionally or not, this law cleanly presents the questions whether and when there is a right to discriminate on the basis of disability in the unique context of procreation.
That is, somehow, restricting information without liability is somehow not a "bad reason" since it corrupts the decision-making involved in a somewhat nuanced fashion. I don't think so. The result is that "bodily integrity concerns" are raised, making the law much less "clean." As to "a right to discriminate," yes, when dealing with intimate matters, you can do that. For instance, if you don't want to date a person of the opposite race or sex, it is your right to do so. Where is the stopping point here? Colb is somewhat consistent. A past essay suggested maybe death penalty for rape is legitimate, since it protects against sexual violence.
The dangers of a one track mind.