INTRODUCTION
As anti-choice adherents have transitioned from a scattered movement in the early twentieth century to an organized political interest group in recent decades (Mohr Reference Mohr1978), American abortion politics has moved to medical rather than political ground. Accordingly, advocates of safe, legal abortion have become mired in interpretative debates over abortion's medical necessity rather than its political value. To be sure, this turn was not the product of a strategic plan hatched by pro-choice feminists, but was foisted upon them by judicial and legislative developments that created political contexts to which they were forced to react. Nonetheless, these medical necessity debates have obscured—and sometimes eclipsed—more forceful political arguments, replacing self-authorizing political claims—such as political and human rights, choice, reproductive freedom, and bodily autonomy—with arguments for abortion's medical necessity.
This shift to medical necessity has, in turn, initiated a series of high-stakes rhetorical contests that abortion rights advocates are bound to lose. In this article, I unpack the politics of these contests and assess the dynamics of medical necessity arguments in abortion debates. In so doing, I foreground medical necessity's status as a contested rhetoric that different political actors seek to shape, but ultimately conclude that a new set of non-necessitarian political arguments are required to meet the challenges of contemporary abortion politics.
The paradox of approaching medical necessity as a rhetorical tool is that it is usually treated as an objective, fixed standard. Like other necessity arguments, medical necessity derives its persuasive force by evoking logical coherence and definitional stability, conjuring fields of closure rather than clearings and openings. Rather than emanating from political voices, such as those that arise in defense of reproductive freedom, necessity determinations are products of a mixture of professional judgments, naturalized social perceptions, and value judgments (Callahan Reference Callahan1991). A critical assessment of medical necessity in abortion debates must, therefore, not search for “real” necessity but emphasize the concept's central role in calling upon, legitimating, and often reifying regimes of medical and political knowledge. Despite the elusiveness of objective standards, however, medical necessity can serve as a powerful rhetorical tool, aiding doctors in projecting confidence to and advocating for their patients with insurance providers; providing insurers with standards for dispensing health resources; offering governments a way to control benefits and regulate health-care providers; addressing patients' anxieties by presenting a road map of what needs to be done to restore their health; and providing fodder for malpractice insurance when protocol is not followed.Footnote 1
Crucially, medical necessity promises that decisions are not choices, thereby absolving individuals of responsibility for their needs. At the same time, this apparent stability provides a framework for shaping forms of medical knowledge that are, in turn, deployable by political actors—including doctors, patients, and health maintenance organizations (HMOs), as well as movements such as pro- and anti-choice groups—in medical debates. Consider, for example, the following statement from the anti-abortion group, Canadian Physicians for Life (CPL):
Abortion is not an essential medical service. It is designated “medically necessary” for purely social and political, not medical, reasons. Pregnancy is not an “injury, illness or disease.” There is no proof that abortion improves health.… There is no “medical necessity” where no medical benefit or health risk exists. (Adams et al. Reference Adams2001)
CPL utilizes several interrelated discourses to reject the idea that abortion is or can be medically necessary. For present purposes, it is sufficient to note that CPL's strategic reminder that medical necessity is a “designation” conjures a specter of politics; the organization seems to bet that the simple mention of necessity's definitional contingency will destabilize its political force.
Paradoxically, it is precisely this contingency that makes medical necessity arguments available for persuasive purposes. Since medical necessity arguments can just as easily be deployed to help people gain access to care as to limit it, their persuasiveness depends upon the cultural contexts in which they are received, rather than any one rendering of medical fact. These considerations point not to empirical evidence of what is or is not medically necessary, but who possesses the ability to interpret necessity within key political contexts. Accordingly, the story I tell about the rise of medical necessity arguments concludes that, ultimately, the rhetoric of necessity cannot facilitate pro-choice advocates' goals because they are not positioned well for controlling the terms of the necessity discourse.
THE TURN TO MEDICAL NECESSITY
As Purdy (Reference Purdy2001, 256) has noted, “The prochoice movement has tended to emphasize [abortion's] importance for women's health,” which she regards as an understandable but “mistaken strategy.” As a critical qualification to Purdy's point, in this section, I trace key developments in this history. I do so, in particular, to show that this emphasis on medical necessity was less of an ex nihilo strategy than a response to judicial and legislative developments that, in turn, eclipsed and obscured other forms of pro-choice argument. A reconsideration of the case and legislative history is critical for understanding why as well as how medical necessity became so central to American abortion debates. To this end, I review these well-known developments to shed light on the extent to which the history may be read as a 30-year reframing of the abortion question in terms of medical necessity.
Without a doubt, Roe v. Wade (1973) serves as the critical beginning point for understanding how medical necessity became so central to American abortion politics. As Greenhouse and Siegel (2010) show in their collection of pre-Roe documents, although a number of discursive approaches vied for attention in the early 1970s, the specific framing of Roe, and the Texas statute the case reviewed, had the effect of focusing the abortion question—to the exclusion of other frameworks—on medical necessity. Roe's “tripartite” schema prohibited state regulation of abortions performed in the first trimester of pregnancy, allowed for some state regulation—especially on the basis of matters of health—in the second, and allowed states to ban abortion altogether in the third, as long as such bans held exceptions for the pregnant woman's health. Due to the respect afforded medical judgment, medical necessity, along with rape and incest exceptions, serves as the only reliable means by which abortions can be accessed during the final two-thirds of Roe's trimester schema, eclipsing rights and other political claims.
Accordingly, as scholars have long noted, the Roe framework “makes the physician the final arbiter of the abortion decision” beyond the first trimester (Petchesky Reference Petchesky1990, 289). For the bulk of a pregnancy, therefore, Roe tends to protect the rights of medical professionals, rather than those of their patients, and establishes legal principles that are subsumed and guaranteed only within a medical framework. Hence, as the opinion notes, “subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother” (Roe v. Wade, 1973, 879). The stark language of necessity, linked to “preservation,” illustrates the constraining nature of Roe's medical exceptions. Rather explicitly, the Court's turn to medical authority in Roe was intended to neutralize some of the more hotly contested dimensions of “pro-life” and “pro-choice” politics. In this sense, the move to medical necessity was not only pragmatic, but apparently also depoliticizing in its attempt to carve out fixed exemptions rather than establish expansive, politically grounded rights. Even the decision's privacy arguments were placed under the medical umbrella, as they concerned doctor–patient relations rather than women's choice.
To be sure, the focus on medical necessity not only was a product of Roe, but also reflected arguments made by some pro-choice advocates in their efforts to support Jane Roe and influence the decision. For example, an amicus brief filed by a group of medical professionals argued that
the Texas anti-abortion statute is wrong in principle, fundamentally unsound in the light of present day medical and surgical knowledge, and a serious obstacle to good medical practice. Amici believe that the restrictions imposed by the Texas statute on the performance of medically indicated therapeutic abortions interfere with the physician–patient relationship and with the ability of physicians to practice medicine in accordance with the highest professional standards. (Greenhouse and Siegel 2010, 264)
The brief's signators go on to quote from an American Psychiatric Association statement that maintained that “[a] decision to perform an abortion should be regarded as strictly a medical decision and a medical responsibility.” Critically, and somewhat paradoxically, the physicians' brief mentions in closing that “the freedom to be the master of her own body, and thus of her own fate, is as fundamental a right as a woman can possess,” in turn branding the Texas ban “the most severe and extreme invasion of her right to privacy” (Greenhouse and Siegel 2010, 268). But the brief's turn appears as an afterthought, its ultimate appeal to privacy framed not in terms of bodily control and freedom but of consultation with doctors.
With the medical focus firmly established, Doe v. Bolton, also decided in 1973, clarified exactly how medical necessity is to be determined. Specifically, the Court declared that “whether . . . an ‘abortion is necessary’ is a professional judgment that . . . may be exercised in the light of all ‘factors—physical, emotional, psychological, familial, and the women's age—relevant to the well being of the patient.’” The Court clarified that “[a]ll these factors may relate to health,” which “allows the attending physician the room he needs to make his best medical judgment” (Doe v. Bolton 1973, 192). As in Roe, the Doe guidelines make doctors the arbiters of medical necessity, advancing a fairly expansive definition of health. Yet while both cases utilize well-known privacy arguments to guarantee a woman's right to an abortion without restriction in the first trimester, neither advanced a strong political argument capable of moving outside of the confines of medicine; in both, privacy functions less as a political argument than as an appendage of a medical ethic that, in turn, constrains political outcomes.
On the heels of Roe, the so-called Hyde Amendment, adopted in 1976, reiterated these distinctions by prohibiting the use of federal funds to pay for “elective” abortion services. Hyde reaffirmed the centrality of medical necessity to American abortion politics in Department of Health and Human Services appropriations bills each year—its central target being Medicaid funding (HHS 2004). In early 1977, motivated by the Hyde distinction between a woman's right to have an abortion without state intervention in the first trimester and the funding required to operationalize that right, the question of whether medical necessity determinations were enough to open pathways to federal funding moved front and center. What is particularly important here is that questions of funding, “state interest,” and “undue burden” were largely mediated by necessity arguments, owing to a free market ideology that does not consider the inability to pay for services a substantive limitation. Hyde makes clear that arguments operating within the bounds of choice had been largely evacuated since Roe.
Yet Hyde was merely the first move in efforts to establish obstacles for accessing legal abortions, further distinguishing necessity determinations from questions of material access. In Maher v. Roe (1977), two poor women were unable to obtain the “physician's certificate of medical necessity” required by a Connecticut welfare regulation restricting state Medicaid benefits only to those first trimester abortions deemed “medically necessary.”Footnote 2 The Court found that Connecticut's unwillingness to pay for abortion services did “not impinge upon the fundamental right of privacy recognized in Roe” (Maher v. Roe 1977, 464). The Court also validated Connecticut's handling of medical necessity determinations, concluding that “it is not unreasonable for a State to insist upon a prior showing of medical necessity to insure that its money is being spent only for authorized purposes.” According to the Court, “Although similar requirements are not imposed for other medical procedures, such procedures do not involve the termination of a potential human life.” In short, Maher found that financial impediments to accessing an abortion did not constitute “undue burden” and found that abortion can be deemed both medically necessary and a special case that allows the state to refuse to fund it. Medical necessity declarations had been delinked from the material resources required to actualize them.
Nowhere would this willingness become more pronounced than in Harris v. McRae (1980), which makes Maher seem quaint in its denial of reproductive choice in the face of even a minimally capacious understanding of medical necessity. McRae not only holds that medical necessity determinations can be ignored because abortion is a medical question unlike others, but also allows states to treat abortion as a medical procedure with unique state interest, negating many of the benefits of the medicalized defense of abortion in the first place. Newly armed with McRae, the 1980 Hyde Amendment ensured that no federal funds could be used to subsidize abortion except where carrying a fetus to term would endanger a woman's life.
It is important to note the definitional games at work in the various Hyde renderings of medical necessity. Specifically, its various manifestations from 1976 to 1981 define medical necessity in terms of a woman's physical survival. It is thus insufficient to note that abortions not deemed medically necessary received no federal support after McRae; rather, the Hyde Amendment challenges the construction of medical necessity itself, which, after Hyde, became a central front in abortion politics. Through various changes in the Hyde language, their trajectory is clear; the attempt to restrict the meaning of health to physical survival not only precludes considerations of psychic health—even in cases where physicians predict serious or life-threatening danger—but also takes seriously only those conditions that “place the woman in danger of death.” This constitutes a turn not to life but to “bare life” (Agamben Reference Agamben and Heller-Roazen.1998), evacuating medical necessity of its normative and biomedical content and replacing physicians' professional judgments with a “right to life.”
A series of cases have also tested the bounds of medical necessity exceptions to state restrictions, thereby opening another route that has exposed the inherent vulnerability of medical necessity as a guarantor of access to safe and legal abortion. In Planned Parenthood of Southeastern Pa. v. Casey (1992, 879), the Supreme Court reaffirmed Roe's requirement that state restrictions on postviability abortions must contain an exception “where it is necessary, in appropriate medical judgment for the preservation of the life or health of the mother.” Casey affirmed the constitutionality of record-keeping requirements, including records that could be used to question medical necessity determinations, thereby raising the specter of postprocedure prosecution based on a reassessment of that abortion's necessity. At the same time, Casey would set the stage for a series of twenty-first-century cases that further engaged the medical necessity question.
In Stenberg v. Carhart (2000), the Court considered the constitutionality of a Nebraska statute that criminalized a rare late-term abortion procedure, “dilation and extraction” (D&X). According to the statute, such abortions could not be provided “unless such procedure is necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.” To justify this lack of exception, Nebraska challenged the meaning of “necessary” as constructed in Casey. Illuminating the difficulty with medical necessity determinations:
the word “necessary” in Casey's phrase “necessary, in appropriate medical judgment, for the . . . health of the mother” . . . cannot refer to absolute proof or require unanimity of medical opinion. Doctors often differ in their estimation of comparative health risks and appropriate treatment. And Casey's words “appropriate medical judgment” must embody the judicial need to tolerate responsible differences of medical opinion. For another thing, the division of medical opinion signals uncertainty. If those who believe that D&X is a safer abortion method in certain circumstances turn out to be right, the absence of a health exception will place women at an unnecessary risk. If they are wrong, the exception will simply turn out to have been unnecessary (Stenberg 2000, 916)
Nebraska's claims underscore the extent to which debates about necessity are capable of undermining pro-choice positions when absolute criteria are applied to inherently contingent questions. Reproductive needs, after all, are context bound and interpretable.
More significantly, where there has been open disagreement over basic medical terms, resolutions have tended to lean toward restriction. A follow-up case to Stenberg, for example, Gonzales v. Carhart (2007), asserted that despite the presence of disagreement regarding the medical necessity of D&X abortions, “[m]edical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts.” Gonzales rejected the constitutionality of a “zero tolerance policy” that would “strike down legitimate abortion regulations” on the basis that reasonable alternatives existed to D&X that made health exceptions both unconvincing and unnecessary. Even if a procedure imposes a greater degree of risk than another—as Carhart held in the case of alternatives to D&X—Gonzales found that “if some procedures have different risks than others, it does not follow that the State is altogether barred from imposing reasonable regulations” (Gonzales v. Carhart 2007). In other words, Gonzales held that procedures that some doctors believe to be medically necessary (even on rare occasions) could be banned so long as other procedures remained available to satisfy the exceptions that Roe mandated.
I close this historical overview by highlighting recent developments that have arisen within the context of the Obama administration's efforts to reform American health care. I do so because these developments illustrate the extent to which medical necessity arguments that govern national abortion politics are poised to infiltrate private health-care systems as well. In the summer of 2009, the Obama administration's legislative push had become mired in controversy over whether federal funds would be used to pay for abortions (Annas Reference Annas2009). A group of conservative legislators organized by Representative Bart Stupak (D-MI) made its support for health care reform contingent upon the inclusion of the following language:
No funds authorized or appropriated by the Act (or amendment made by this Act) may be used to pay for any abortion or to cover any part of the costs of any health plan that includes coverage of abortion, except in the case where a woman suffers from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the woman in danger of death unless an abortion is performed, including a life-endangering physical condition caused by or arising from the pregnancy itself, or unless the pregnancy is the result of an act of rape or incest.
Although it was not ultimately included in the final version of the Patient Protection and Affordable Care Act (PPACA), the Stupak-Pitts Amendment marks the current rhetorical position that anti-abortion groups seek to attain. Ultimately, President Obama won passage of PPACA by bargaining with Stupak (Bazelon Reference Bazelon2010) and issuing an executive order upon passage of the bill that provided an “adequate enforcement mechanism to ensure that federal funds are not used for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered), consistent with a longstanding Federal statutory restriction that is commonly known as the Hyde Amendment” (Obama Reference Obama2010).
Obama's concession did more than reiterate long-established restrictions; it expanded them. Because PPACA is likely to expand health coverage to millions of Americans through insurance “exchanges,” Obama has extended government restrictions into the domain of private health-care providers who participate in government programs. A study by George Washington University's medical school notes the capacity of these restrictions to “alter the ‘default’ customs and practices that guide the health benefits industry as a whole, leading it to drop coverage in all markets in order to meet the lowest common denominator in both the exchange and expanded Medicaid markets” (Rosenbaum et al. Reference Rosenbaum2009, 9). By operationalizing government programs through market mechanisms, Obama extended the reach of Hyde restrictions to private companies that might have otherwise been willing to provide abortion services. PPACA underscores the biopolitical reach that abortion restrictions have under market-based health systems, raising the stakes of abortion access grounded in medical necessity.
Taken together, these developments illustrate the cost of placing critical determinations about reproductive choice within the reach of political forces that oppose more robust views of health and that are unsympathetic to or unconvinced by necessity arguments that challenge their moral framework. To be sure, the medical necessity framework of Roe has mostly held. Yet the political force of this holding has been gutted by successful efforts to redefine necessity itself.Footnote 3 Specifically, post-Roe necessity arguments have become synonymous with women's survival, to the exclusion of more meaningful conceptions of physical or psychic health. This development makes clear that medical necessity arguments cannot be assumed to carry with them the moral or logical force that earlier abortion litigators seem to have assumed they would.
CRITIQUING MEDICAL NECESSITY
My analysis suggests that medical necessity is what Farquhar calls a “discursive representation.” According to Farquhar (Reference Farquhar1996, 16), “Most discursive representations cannot grasp that reproductive technologies are shifting practices and not static entities, because the discourses share, albeit sometimes unwittingly, reproductive medicine's self-representation as value-neutral, objective, and politically disinterested.” Farquhar's work shows that changes in discourse are capable of shifting political foundations—a point that Casey acknowledges in noting that “time has overtaken some of Roe's factual assumptions: advances in maternal health care allow for abortions safe to the mother later in pregnancy than was true in 1973 . . . and advances in neonatal care have advanced viability to a point somewhat earlier” (Planned Parenthood of Pa. v. Casey 1992).Footnote 4 While Casey emphasizes technology's ability to change what is possible and what is not, technological change can also rework the very contexts in which abortion debates take place. Medical necessity arguments depend upon these contexts for their persuasive and political force.
This further suggests that those who use medical arguments to secure political positions risk being subjected to unwanted and problematic effects of medicalization. There is nothing inherent in medical arguments to guarantee access to care; such arguments can just as easily be deployed to limit and restrict care. For example, Farquhar (Reference Farquhar1996, 64) argues that liberal discourses portray Assisted Reproductive Technologies (ARTs) as salves for “reproductively deficient bodies,” which subsume bodies within contexts outside of which they are barely if at all recognizable. In these discourses, ARTs become appendages of infertile bodies through which “involuntary childlessness become[s] medicalized” (Farquhar, Reference Farquhar1996, 64). Similarly, sonograms may be used to provide much-needed information about the status of developing fetuses, but can also—constitutionally, according to Webster v. Reproductive Health Services (1989)—be used to influence women's decisions whether to have an abortion.
The constantly shifting grounds of technological development illustrate why positions secured by referencing medical needs may no longer be defensible when technologies—and other conditions and contexts with which they interact—change.Footnote 5 The same is true for arguments about social conditions such as poverty: Would abortion rights advocates want to argue that the failure of the welfare state has caused the need—whether individual or social—for a more liberal abortion policy, thereby suggesting that access to abortion is a constituent of policy failure, necessary only in relation to inequality? Is access to abortion simply a function of patriarchy, or is it important even in a world of postpatriarchal relations? As Mohr notes (1978, 251), “Many Americans were prepared, by the time Jane Roe initiated her lawsuit, to accept abortion as a socially necessary additional weapon in the war against overpopulation,” a point supported by an amicus brief filed in support of Jane Roe that included a section entitled “The State Has No Interest in Increasing Its Population; on the Contrary, Its Interest, if Any, Is in Limiting Population Growth.” Another Roe amicus brief, filed by the National Legal Program on Health Problems of the Poor, the National Welfare Rights Organization, and the American Public Health Association, argued that the Texas law would “have a negative effect on the health and well-being of American women, and have a particularly severe impact on the nation's poor and non-white populations” (Greenhouse and Siegel 2010, 269). Yet while this is both important and true, the argument engages social problems associated with banning abortion, rather than defending the political basis of choice itself. In so doing, the authors of such positions suggest that abortion rights are ancillary to the social conditions they address.
However well intended, pro-choice advocates who evoke these kinds of arguments unintentionally suggest that abortion rights are substantively necessary only in relation to the social conditions they address, rather than to the existence of a self-authorizing, self-standing right to determine what one does with one's body. In the 2008 presidential election, then-Senators Barack Obama and Hillary Clinton took up this familiar position. Clinton noted that abortion “needs to be safe and rare,” and touted her “many years now, as a private citizen, as first lady, and now as senator, trying to make it rare, trying to create the conditions where women had other choices” (Clinton Reference Clinton2008). According to Clinton, this requires her support of adoption, foster care, and a “campaign against teenage pregnancy.” Obama toed the same “safe, rare and legal” line, also linking it with adoption, but added that “if we do those things, then I think that we can reduce abortions and I think we should make sure that adoption is an option for people out there. If we put all of those things in place, then I think we will take some of the edge off the debate” (Obama Reference Obama2008).
As should be clear, I am not arguing against the liberalization of adoption laws, just as I think that reducing teenage pregnancy is a good goal. Instead, I am arguing that rather than defending a set of political values that are less vulnerable to changes in biomedical technologies and other shifts in context, these rhetorical strategies reduce the abortion debate to a set of concessions to unfortunate realities and objective conditions. Moreover, as with the unwillingness to provide material resources for legal abortion, few anti-choice politicians seem willing to propose legislation that would subsidize the often-exorbitant costs of adoption, which regularly range into the thousands of dollars for domestic adoption and tens of thousands for foreign adoption. To this end, Obama's admission that his goal is to “take some of the edge off the debate” tells us a great deal about how he perceives the position that he and abortion rights advocates occupy, which in turn explains the defensive, reactionary postures they assume. The view that Obama and Clinton espouse suggests that access to abortion is important because of ancillary social problems, not for purposes of freedom or bodily sovereignty. Predictably, anti-choice groups have seized upon these narratives, advancing “abortion alternatives” centered on the promotion of adoption.Footnote 6
The adoption question helps sharpen the critique of medical necessity because it, too, builds positions out of supposedly objective conditions of need. Like adoption and other social conditions, medical necessity is not a one-dimensional plane on which actors can simply be placed, as on a chessboard. Rather, it is a pliable tool that can be used differently by different actors at different moments, each of whom may be uniquely located vis-à-vis social power and at unique intersections of race, gender, sexuality, or ability. The Roe and Casey frameworks turn to necessity arguments because they suggest the absence of choice, but this absence only serves to displace stronger pro-choice arguments.
Those pro-choice actors who turned to the medical necessity frame were surely hoping that the lack of choice implied by necessity would serve as a backstop capable of securing access to abortion, but this assumption has proven to be misguided for two key reasons. First, medical abortions will only expand women's access to abortion services if providers offer them (Coeytaux, Moore, and Gelberg Reference Coeytaux, Kirsten and Lilian2003). Hence, secure access to abortion requires not only that health-care rubrics include abortion services, but also that physicians are willing to perform and are properly trained in abortion. Finally, these physicians must be provided adequate resources, including security. Second, and more critically, as the case history makes clear, the turn to medical necessity miscalculated the success that anti-choice groups would have in questioning the existence of medically necessary abortions altogether, undermining the grounds upon which 30-plus years of legislation and case law were built. The result is that the scope of medical necessity determinations continues to shrink as anti-abortion forces exploit the interpretability of scientific knowledge and the benefits of technological progress.
This perceived lack of necessity has led some anti-abortion groups to accuse doctors of being ideologues in league with patients seeking “on demand” abortions—claims intended to further question not only abortion's medical basis but also the authority of doctors within abortion debates more generally. This follows a trend established early on, as even when courts have defended doctors' authority to issue medical necessity determinations, they have tended to open doors through which states could limit access to abortion. For example, the 1979 Circuit Court decision Preterm, Inc. v. Dukakis (1979) held that discretion granted to states to limit medical services empowers states, in however a limited scope, to determine what is medically necessary. Preterm essentially enabled states to preempt doctors' decisions by deeming that “only certain kinds of medical assistance are . . . sufficiently necessary to come under the coverage of its plan.” Preterm established that the restriction of medical necessity to “life and death situations” and cases of rape or incest was too narrow and contradicted the spirit of Roe, but also asserted that medical necessity could be called into question if done categorically. This development confirmed the prophetic tone of Maher, which indicated that medical necessity arguments become vulnerable when abortion is singled out for a special “state interest” capable of delinking them from their medical basis.
Anti-choice actors are shrewd for taking this tactical route, as the inherent contingency and contestability of medical decision making opens medical appeals to counterclaims and critique. In fact, it is precisely this disposition that allows opponents of abortion to proclaim that abortion is never medically justified. This initiates a two-step and circular process of delegitimation. First, the debate shifts the burden to advocates of abortion rights to identify abortion's clinical basis. Second, this basis is called into question and weakened by anti-choice advocates who are skeptical of the motivations of doctors who aid their patients in seeking abortions, once again reopening the medical necessity question. In so doing, abortion opponents utilize the probabilistic knowledge that doctors bring to bear in their decision making to undermine necessity claims, as new points of consensus continually create new sites of contest. Given the inherently defensive posture of contemporary medical necessity arguments, it is hard to envision how they could be strengthened without further calling their legitimacy into question.
For these reasons, challenging the veracity of necessity arguments serves anti-choice groups well. Groups such as the American Life League (ALL 2002) increasingly argue, and with greater degrees of nuance and scientific sophistication, that “there is no medical justification for abortion.” Beyond their general challenge to doctors' authority, the nature of these arguments is instructive. For example, in response to the question “Is abortion ever medically necessary?” ALL utilizes a language game of “direct” and “indirect” abortions to maintain that “[a]bortion [by which they mean “direct,” and not incidental abortion] is never necessary to save a mother's life” because “in the course of treating a woman, if her child dies, that is not considered abortion.” ALL cites Alan Guttmacher, former Planned Parenthood president, who noted: “Today it is possible for almost any patient to be brought through pregnancy alive, unless she suffers from a fatal disease such as cancer or leukemia, and if so, abortion would be unlikely to prolong, much less save the life of the mother.”
The website for Christian Life Resources (CLR 2010) explains that medically necessary “abortion involves the intentional termination of the life of an unborn child once it is determined continuing the pregnancy would end the life of both mother and child,” but that “[a]bortions for this reason are becoming more rare with the advancements of medicine.” CLR illustrates the increasingly powerful view from the perspective of medical necessity that as medical technology progresses, fewer, if any, justifications for abortion will remain. This underscores the problem of making access to abortion contingent upon scientific or expert judgments, rather than on political positions that are asserted and defended by advocates. Where the courts have reaffirmed medical necessity exceptions, even in their limited scope, anti-choice advocates have sought—with some degree of success—to define away medical necessity itself.
As I have suggested, the unique interpretability of medical necessity makes this rhetorical strategy easy to undertake. Consider the following testimony by Dr. Jan Whitefield of the Alaska Women's Health Clinic in Planned Parenthood of Alaska v. State of Alaska:
Q: Now, in your practice the State will pay for a minor girl's abortion . . . and the State will pay for any abortion that is medically necessary; is that correct?
A: Correct.
Q: And since you've been practicing since 1985 you have been able to find a medical necessity for State-paid abortions for these girls except perhaps for only 10; is that correct?
A: I believe that's what I said in my deposition.
Q: And your definition of medical necessity is what you refer to if the pregnancy is an affront to the minor; is that correct?
A: It's that the pregnancy in some way is a threat to the patient's medical or psychological well-being.
Q: And what you use for a definition is a theoretical hazard to her mental health; is that correct?
A: I think I've used those terms.
Q: And this could mean that if, in fact, the pregnancy would cause her some . . . problems in dealing with education, her continued employment, things of this nature, would be the kind of affront you're talking about; is that correct?
A: Independence would be another one, the ability to raise a family. There's multiple factors that will go into it.Footnote 7
I am concerned here less with the outcome of the case, which stopped a parental consent law from taking effect, than the rhetorical position of the testimony, which underscores the grasping-at-straws of medical necessity arguments and the tentativeness—if not inherent weakness—of the medical necessity framework. If anti-choice advocates can make the argument that abortion fulfills no medically necessity—a real possibility, if current trends continue—then choice advocates may find themselves without even the remaining, if limited, grounds upon which many American abortions are justified. New, firmer grounds are needed.
POLITICS BEYOND MEDICAL NECESSITY
Since grounds cannot be placed beyond the reach of contest, as the turn to medical necessity attempted to do, the question becomes not whether to engage contingent forms of argument but which forms. The position I take in this section proceeds from the realization that openly political arguments—rather than those packaged in depoliticizing medical, scientific, or technological discourses—have the relative advantage of engaging the politics of abortion directly and building rhetorical foundations that are defended through explicitly political means.
In sketching a framework beyond medical necessity, I distinguish necessity arguments from what I am calling a postnecessitarian abortion politics. Such a politics proceeds from the observation that the turn to necessity tends to empower extant discursive systems rather than challenge them through contestatory political claims. In a sense, my position amounts to a call for a return: Such claims were characteristic of the positions advanced by abortion rights advocates of the late 1960s and 1970s, who did not turn first and foremost to necessity but tended to speak an explicitly antinecessitarian political language about rights, self-ownership, and choice.Footnote 8 While it is true that pro-choice groups continue to make a range of political claims, it is also true that these claims are weakened when they appear alongside necessity arguments that confuse and undermine the political basis of the abortion question.
I am suggesting that the difficult position that abortion rights advocates find themselves in is the outcome of an almost 30-year legal inheritance. While this inheritance has made attempts to depoliticize abortion attractive to pro-choice advocates, appeals to necessity have led to an impasse rather than an opening. A crossroads thus confronts advocates of access to safe and legal abortion, even if the available paths are not without their limitations.
FRAMEWORK FOR AN ANTINECESSITARIAN ABORTION POLITICS
Medical necessity arguments cater and respond to a cultural norm that makes the absence of choice their primary source of legitimacy. In the classical liberal formulation, where there is choice there is responsibility, and where there is responsibility there is the possibility that individuals can correct and change their actions—hence, the explicit advocacy of abstinence programs to minimize the need for abortion and sterilization as a historically popular state policy.Footnote 9 The power of necessity issues from an assumption that one does not choose to need care, and that nobody—from a position of unfettered choice—would choose abortion. Yet as I have also shown, attempts to reconcile liberal needs-based positions with a stable logic of medical necessity have proven elusive and have, in fact, left access to legal abortion less stable than it was in 1973 when Roe was handed down.
If liberal responses are required by the present political moment because of the way in which they evoke the rhetoric of choice, then advocates of access to safe abortions may need to trade one liberal foundation—the concession to necessity—for another: rights. There are several reasons why this might be a trade worth making. For example, while skeptical of liberal orders, Corrêa, Petchesky, and Parker (Reference Corrêa, Rosalind and Richard2008) argue that rights are comparatively self-affirming and not subject to the whims of changes in medical knowledge. While medical necessity determinations are by-products of fluid technological developments and epistemic shifts, rights are not “[reliant] on the beneficence of unnamed, impersonal forces—whether they be donors, the state, an abstract ‘society,’ or, more tenuously still, the market.” In other words, despite their limitations, “rights offer the most viable rhetorical structure currently available to civil society groups for making social and erotic justice claims and seeking redress or accountability” (Corrêa, Petchesky, and Parker 2008, 152). Rights-based approaches can also engage power relations in ways that other approaches cannot by calling into question those discursive structures that give rise to necessity's rhetorical force. Rights can resist the depoliticizing gestures that cast abortion within the context of scientific and medical determinations. Unlike such determinations, rights are capable of framing abortion as more than a response to a set of unfortunate social realities. While the history of rights has been mixed, there is nothing inherent in it to suggest that rights could not be brandished as self-affirming tools of an agonistic politics. Where necessity is hamstrung by its inherently positivist associations, rights have no such inherent limitations.
In particular, it is important to note that owing to their status as “protean and irresolute signifiers” (Brown Reference Brown1995, 97), rights can take on many different forms and operate in varied frameworks.Footnote 10 They need not be premised, as they are in Roe, on privacy, nor need they be reduced to a Hobbesian right to survival or self-defense or Lockean conceptions of individual liberty. Not all rights are of the “bourgeois” sort that Marx criticizes as paving over the social conditions of subjects. Nor must they “depoliticize or unmark one's social existence” or individualize or dehistoricize “injury and entitlement” (Brown Reference Brown1995, 115 and 124). Beyond liberal frameworks, rights can be situated in collectivities, be made substantive rather than formal, and be sensitive to the fact that restrictions of reproductive freedom impact some groups more and in different ways than others. Rather than asserting a depoliticizing universal and ahistorical validity, rights can be grounded in concrete political contexts, not as a response to objective conditions but owing to a shift in a polity that declares and defends its preference for a certain right. Such an approach does not foreclose challenges to these positions, but finds itself rooted in political foundations that are firmer than the medical necessity standards that were pulled from under the post-Roe movement's feet.
Of course, in promoting rights we must follow thinkers such as Pheng Cheah and Jacques Derrida in warning that they “by themselves are necessary but insufficient to meet the demands of justice” (Corrêa, Petchesky, and Parker 2008, 161). As theorists such as Williams (Reference Williams1991), Crenshaw (Reference Crenshaw1988), Minow (Reference Minow1999), and others have shown, rights are part of a political inheritance and, as such, present a set of paradoxes to negotiate, politically and ethically, rather than a choice of whether to engage. Each of these thinkers understands in her own way that rights contain potential traps, but each insists on working rights through specific contexts as political tools, rather than rejecting them because of potential pitfalls and limitations. Building out of the tradition advanced by these thinkers, appeals to rights must be conscious of and open about their contestable basis. Claims of universal, ahistorical applicability must be grasped as weaknesses rather than strengths.
My qualified advocacy of a strengthening of abortion rights arguments acknowledges additional problems. Rights discourse has historically introduced problems such as competition among groups for the recognition and resources that rights entail, constitutive exclusions, and the reinforcement of patriarchy. Moreover, a formidable obstacle is posed by the fact that the field of rights discourse is at present largely occupied by the rhetoric of the “right to life.” Given the almost 40-year trajectory that has developed post-Roe, rights discourse may be closed off to groups seeking to achieve short-term goals, in which the question becomes how to develop strategies that can secure access to safe abortions now while building a long-term strategy on a foundation that will resist and counter anti-choice positions. Countering anti-choice rights arguments with another rights claim is insufficient without directly addressing the nature of that claim, which itself must be asserted within a broader framework of antinecessitarian political commitments. Precisely because of this antinecessitarianism, however, pro-choice advocates have been reticent to engage this question directly, ceding important terrain along the way. The result is a picture of abortion as a sad reality thrust upon women rather than as an emancipatory tool, not only from patriarchal relations but also from bodily needs and the biomedical models that have arisen around them, subsuming and limiting political rights along the way.
This approach may require explicitly challenging the claim that fetuses have rights. It will, at a minimum, require resisting the internalization of anti-choice guilt around abortion as part of a project of regarding women's rights as rights rather than as proxy arguments for social need. Those who assume that rights discourse has aided in the erosion of access to abortion—especially many radical feminists (Jaggar Reference Jaggar1983; Rich Reference Rich1976)—underestimate the powerful role that necessity has played in the last three decades of abortion cases. In taking a too-narrow view of rights, they miss their potentially radical utility if reconceptualized. In noticing this limitation, of course, I am also suggesting that rights have not played the dominant role in the development of American abortion politics that radical feminists tend to assume they have. Indeed, I am suggesting that groups—such as the National Abortion Rights Action League (NARAL), which, despite including rights in its acronym, tends to get diverted by medical necessity debates—should more forcefully reclaim the terrain on which rights operate, rather than seek to occupy new terrains such as social need.Footnote 11
CONCLUSION
The rhetorical strategies one deploys in political debates is of central importance—be they necessity arguments, rights, or arguments of social need or utility. These rhetorical strategies matter especially insofar as they are utilized to make the all-important move from contestatory rhetorics to operationalized law, regardless of the particular political or institutional path—executive, legislative, or judicial—they take.
At the same time, rhetorical positions have histories of their own and, as such, are embedded in institutions and constitute sites of political persuasiveness or resistance. We cannot ignore these histories in our strategic considerations. For example, given that rights discourse has been largely dominated by anti-choice positions in recent decades, demedicalizing abortion simply as a matter of principle would be reckless without an alternative plan for securing its safe and legal access. As Petchesky (Reference Petchesky1990, 292–93) notes:
Understood expansively . . . “health reasons” for abortion may provide the broadest practical basis for abortion services within the health-care system as it is currently structured. This is why the medical emphasis in Roe v. Wade may have been, at a particular moment, relatively progressive for women.
Like Petchesky, I acknowledge the “practical basis” of necessity even as I wish to complicate and transcend it. This article only begins to sketch out the parameters of such a move, but hopefully opens spaces for fleshing out the parameters of antinecessitarian positions on the abortion question, while remaining aware that medical necessity arguments constitute a concession to the order of American political discourse in the interest of meeting the urgent needs of women. Moreover, while certain claims may be best made in terms of rights—for example, in disability arguments—others, because of their tension with religious orthodoxies or gender norms, may be forced to appeal to necessity, even if these arguments are unlikely to secure the ultimate grounds sought by advocates.
For example, writing on transsexual surgery and hormonal treatments, Butler (Reference Butler2004, 90) notes that “[a]t least in the United States where socialized medicine is largely understood as a communist plot, it won't be an option to have the state or insurance companies pay for these procedures without first establishing that there are serious and enduring medical and psychiatric reasons for doing so.” In other words, in some cases, medical necessity will be capable of mobilizing wider support than rights claims (Human Rights Campaign 2010). In critiquing medical necessity as a strategy for securing access to safe abortions, I remain sensitive to the realities of the present terrain of sexual and reproductive politics while acknowledging that appeals to medical necessity are unlikely to achieve long-term goals. It is a vexing problem: how to utilize short-term resources while innovating new tools for the future.
To be sure, in the longer term, setting aside medical necessity may require rethinking the medical necessity arguments of Roe and its progeny. It may require an acknowledgment on the part of pro-choice advocates that most abortions are not medically necessary, or even necessary at all. Indeed, a commitment to choice requires such an acknowledgment. Moreover, they might emphasize that the more common medical necessity is that which is produced by a refusal to provide for safe, legal abortions, and the physical and emotional dangers of carrying a fetus to term. Such declarations may open new doors for demedicalizing abortion and seeking social recognition for abortion services in nonmedical contexts (see McDonnell, Reference McDonnell1984)—as is occurring in the ongoing resurgence of midwifery and efforts to demedicalize childbirth. Gestures toward demedicalization will be difficult considering the shame that has come to be associated with abortion in the United States. I am also arguing, however, that the risk of sidestepping medical necessity, which remains, even in its weakened state, a cornerstone of contemporary American reproductive politics, is minimal considering the long-term stakes of continuing to reinforce it. This is especially true when considered in relation to the increasingly limited work that medical necessity arguments will be able to do to contest the squall line of proposed legislation in the present Congress and statehouses across the United States. As Gonzales makes clear, the days of the medical necessity framework may be numbered in the courts as well, making the development of a postnecessitarian framework increasingly urgent if these trends are to be reversed. Even if courts do not respond to antinecessitarian positions as such, movements speaking the language of politics—such as freedom and rights—instead of medical necessity could serve as an important hedge against further backsliding in abortion legislation and legal precedent.
In rethinking the utility of medical necessity arguments in abortion politics, I suggest we take seriously Haraway's (Reference Haraway1991, 169) observation that “who controls the interpretation of bodily boundaries in medical hermeneutics is a major feminist issue.” Yet my approach also advocates moving American abortion politics away from such interpretative contests when they create traps. I counsel against turning to medical necessity because it hinges debates on already-constructed notions of the body, but also because attempts to control the conceptualization of bodies and their needs are not likely to put access to abortion on firmer political ground. Indeed, it may even destabilize that ground by making bodily construction a central focus of abortion debates, rather than the political and legal basis that should ensure access to safe and legal abortion. Accordingly, my critique of medical necessity counsels a renewed commitment to making political arguments that can be defended through mobilizations and movements, rather than objective claims about ever-changing bodies whose political life is dependent upon the testimonies of experts—legal, medical, or otherwise. Only such antinecessitarian political projects can attain and defend enduring access to safe, legal abortions.
