Sunday, January 31, 2016

Suggestive Wording in Arkansas Abortion Laws

This January, the Arkansas State Board of Health voted against suggestive anti-abortion language in state laws passed in 2015 that referred to abortion as "death of an unborn child" multiple times. The Board voted to change the language to a more neutral and less loaded phrase "termination of pregnancy".  The board's vote was 12-6 in favor of the new language, with five members choosing to abstain based on the controversial nature of the vote. The State Board of Health was warned by several Arkansas department officials that the Legislature would likely reject this new wording, and may even retaliate against the board.

Although the Supreme Court decided in the famous 1973 case Roe v. Wade that abortion was legal under the Due Process Clause, abortion has continued to come under fire by conservatives, most recently with the arguments in Congress over defunding Planned Parenthood, an organization that provides abortions among a slew of other reproductive health care options, such as access to birth control, pap smears, STI testing and treatment, and prenatal health care. But, ultimately the issue comes down to whether or not the suggestive phrasing is constitutional based on the Establishment Clause of the First amendment, which prohibits any sort of establishment of religion. One definition of establishment is "an arranged order or system, especially a legal code".

The phrasing of the law is blatantly ideological in nature. The main religions we know today came well before the scientific knowledge and medical advancements which we have made in recent centuries. This knowledge has led to the ability to perform medically safe abortions. However, many different religious leaders have come forward staunchly opposing abortion based on different ideological arguments from religious texts, especially the Bible. This has created communities and organizations of people who oppose abortion based on religious values. One nuance of this issue is that because of the age of the Bible, it never explicitly says anything about abortion, as it did not exist in a safe medical context when the Bible was written. Yet religious leaders still use religious arguments to defame abortion. Historically, people who are anti-abortion have aligned themselves with Western religion. Therefore, the pro-life movement has developed deeply religious interpretations.

The phrase "death" in the law is extremely leading, and many scientists argue it is actually scientifically untrue (such as Bill Nye). Furthermore, fetuses are not the same thing as "unborn children". Children have the ability to survive outside of a womb, and are fully developed self-sustaining individuals. Fetuses, by definition, are not the same as unborn children. Fetuses go through many stages of development and cannot survive outside of the physical attachment to a human being. This phrasing in a law, which is mainly backed up by religious leaders', attempts to establish religion by writing it into a law, the ultimate establishment of government. Laws essentially create establishments by their very nature, and therefore are not permitted to contain religious overtones such as this phrase.

On the other hand, the phrase "termination of pregnancy" is both true and neutral. There is no bias towards one group or another. "Termination" is simply a conclusion or "to put an end to", and "pregnancy" is an offspring of an animal developing in that animal's body. Whether an individual considers themselves religious or not religious, pro-life or pro-choice, there is little to disagree with in this neutral phrasing. Neither the word termination or pregnancy holds any connotations, positive or negative.

What is most disturbing about this language is its ultimate aim: to shame women who choose to legally have abortions and to shame doctors for providing the service. One member of the board stated that, "I understand that probably, in part, it was designed to be a deterrent to abortion and make a woman and her doctor feel guilty about what they're doing". Women already face enough stigma around abortions as it is, and this is clear anti-abortion sentiment written into a law that is meant to protect women when they choose to use their right drawn out in Roe v. Wade. While the discussion of the morality of abortion is far from over, the courts have decided that abortion is an acceptable procedure. Therefore, this phrasing shames women for utilizing a right that is stamped out in federal documents, which goes over the head of Arkansas state legislature based on the Supremacy Clause.

The pro-life argument in favor of this language is that it works to "humanize" abortion. One senator who sponsored the law claims that "Recognizing the child as a child is much different than trying to use clinical terminology that hides the fact that you're dealing with a living human being". This claim is under debate in the scientific community because of the argument stated above - that a fetus is not the same thing as a living human being. While it is impossible to speak for every person who has had an abortion, as about 40% of women have, no one who is pro-choice will attempt to say that abortions aren't an extremely emotional decision for the women involved. Shaming women in word of law disregards the emotional process that many women who choose to get an abortion go through, in addition to blatantly siding with the religious pro-life movement.

While the issue of abortion is complex and multifaceted, it is legal, and the wording of the law voted on by the Arkansas State Board of Health clearly holds religiously biased overtones which establishes religious views as law, in violation of the Establishment Clause.


Rosalie said...

Note: I do apologize that the first link in the post, to an article that explains the details of the case, requires the reader to take a survey before viewing the article, but it is the one that I could find that best explains the issue at hand from multiple perspectives.

Rebecca J said...

While I agree that discussing abortion with the wording of "death of an unborn child" is very controversial, I disagree with the claim that the use of this wording would "establish religious views as law, in violation of the Establishment Clause." This would more likely be the case if the laws being discussed were making abortions illegal. However, the use of this wording alone would not have functioned as an establishment of religion since all people could still freely practice the religion of their choosing. Additionally, I think the claim that this wording is religiously based should be further discussed. The issues addressed in this post start to highlight the complex interactions between religion, morality, and science in today's society. All people formulate their opinions on abortion in different ways. While some pro-life positions may be religiously based, others are not. There are likely citizens who agree with the unborn child wording that are not religiously motivated. This complexity does not justify whether or not the wording should be used, but is something important to consider when discussing what actually constitutes an establishment of religion in the context of this class.

Natalie K. said...

I agree that referring to an abortion as a “termination of pregnancy” rather than a “death of an unborn child” is the more neutral approach to an extremely contentious matter. Those who are in favor of referring to an abortion as a “death of an unborn child” and oppose the proposed alternative due to purely religious reasoning must understand that even the Roman Catholic Church is not as rigid as it is often made out to be in regards to abortion. In some cases, such as ectopic pregnancies, which result in the death of the mother unless she obtains immediate medical care, the Church does not regard certain medical procedures that women can undergo as immoral which, cause the death of an embryo or fetus. Since even the Church tends to sway both ways on this controversial issue, especially in unique medical situations, the religious argument that the language change will “humanize” abortion is illogical.

Hannah L. said...

While I do agree that the phrasing "termination of pregnancy" should be used instead of "death of an unborn child", I agree for different reasons than the religious argument being put forth here. Termination of pregnancy, as you stated, is a neutral phrase that holds neither positive nor negative connotations. This is true for all people both religious and non-religious. In the same way, the phrasing "death of an unborn child" is not neutral and hold negative connotations for all individuals who are both religious and non-religious. I think the issue in this case is one of what wording a legal document should have, rather than a religious debate. If there were any illusion to religious themes or thought then I would agree with the argument here and it would have more validity.

Lauren C. said...

Abortion is a very emotional decision for women who decide to follow through with it. That being said, I agree that less abrasive language regarding abortion would help to reduce some psychological reactions that women face when being reminded of the process. However, I do not agree with the point that the use of the term "death of an unborn child" is an establishment of religion. As others have commented, not all pro-life people are religiously affiliated. Some of these debates are centered on the premise of science and not religion. There is no direct reference to God or religion in this controversial phrase and therefore does not allude to a blatant religious bias.