CHOICE IS A MOVING TARGET
Although we strongly believe in the private and responsible nature of our own choices to have children, we simply do not see the choices of women in poverty in the same way.
--Thomas Ross, Just Stories1
January 22, 1973, was a remarkable day in United States history. That afternoon Lyndon Baines Johnson died. At nearly the same time, the U.S. Supreme Court announced one of its most ambitious decisions ever, Roe v. Wade. On the evening news, the former president's death eclipsed the announcement that abortion was now legal in all fifty states.2 In the years since the Roe decision, however, the political struggle over the role of abortion in U.S. society has fiercely resisted eclipse. The meaning of the Roe decision, especially the meaning of the "choice" it promised women, has never stopped evolving.
After the Court's announcement, commentators called Roe v. Wade "one of the boldest, most sweeping decisions of the ... era," "an astonishing decision," "extraordinary."3 Later, after the complexities of Roe had become more apparent, some observers still referred to it as "a total victory" and an "expansive decision."4 Sarah Weddington, the young Texas lawyer who argued the case before the Court, wrote in her memoirthat Roe was "a declaration of human liberty." She remembered that as she read the text of Justice Harry Blackmun's opinion, she "rejoiced that the decision was seven-to-two [and] that it was strong and clear." She also remembered taking a phone call that day from a woman who had an urgent suggestion: "that January 22nd be declared a national holiday for women."
Roe v. Wade generated so much hope and excitement partly because it seemed so clearly to be responding to the dilemma of all women. Many proponents of legal abortion believed Roe was a symbol and a vehicle of women's liberation. A Vermont law student described the Roe decision as a response "to the rallying of women across the nation--a rejection of women as reproductive machines and an acceptance of women as individuals capable of choice."5 The Court had not distinguished among groups of women by age, race, income, or level of education. Roe v. Wade was for everyone.
This sense of triumph was not surprising. After all, abortion rights activists and many ordinary women had talked for years about the deeply degrading impact of anti-abortion statutes and the importance of achieving reproductive freedom. The founders of an early abortion rights organization, the Society for Humane Abortion, described state laws forbidding abortion as a form of sex discrimination.6 Many involved in the women's rights movement defined abortion rights as having tremendous political and practical significance. One second wave feminist put it this way:
When we talk about women's rights, we can get all the rights in the world--the right to vote, the right to go to school--and none of them means a doggone thing if we don't own the flesh we stand in ... if the whole course of our lives can be changed by somebody else that can get us pregnant by accident, or by deceit, or by force. So I consider the right to elective abortion ... the cornerstone of the women's movement ... Without that right, we'd have about as many rights as a cow in the pasture that's taken to the bull once a year ... [I]f you can't control your body you can't control your future.7
During the late 1960s and early 1970s, advocates of legal abortion mostly used the term "rights," not "choice," to refer to what they wereafter. Still, the term "choice" did crop up. The National Abortion Rights Action League's (NARAL) first national action in 1969--a Mother's Day demonstration held in conjunction with press conferences in eleven cities--was called "Children by Choice."8 And Dr. Alan Guttmacher, the prominent birth control advocate and important convert to the cause of legalized abortion, proclaimed January 22, 1973, "a great day for freedom of choice."9 But until Roe, most activists claimed that "the right to control whether you're pregnant or not [was] indivisible from the right to self-determination."10
The rights language, however, did not last very long. Justice Blackmun referred to abortion as "this choice" a number of times in his Roe majority ruling. And the determination of abortion rights advocates to develop a respectable, nonconfrontational movement after Roe encouraged many proponents to adopt the term "choice." In a country weary of rights claims, choice became the way liberal and mainstream feminists could talk about abortion without mentioning the "A-word."11 Many people believed that "choice"--a term that evoked women shoppers selecting among options in the marketplace--would be an easier sell; it offered "rights lite," a package less threatening or disturbing than unadulterated rights.
At first, people who used the term "choice" didn't talk much about what it would take for a woman to exercise her new reproductive latitude. The law had made choice legal for everyone, and that was that. A women's health care provider observed in 1973, "What has been happening ... is that if you can afford it, you get an abortion, and if you can't, you have the child and go on welfare."12 Now, she indicated, the playing field would be much more level. A woman could choose whether or not to get an abortion and whether or not to become a mother, no matter how much money she had in her wallet.
This early, optimistic sense of how Roe v. Wade would affect women's reproductive lives reflected the utopian egalitarianism of many in the women's movement at the time. In the struggle to win reproductive freedom, many activists didn't think about the fact that pregnancy and childbearing have historically and dramatically separated women by race and class in this country. For centuries, enslaved African-American women had endured coerced pregnancies and the human-selling practices of slave owners. White urban immigrant mothers had seen theirchildren targeted and taken away from them by "child rescue" charities in the nineteenth and early twentieth centuries. After World War II, white unmarried mothers were roughly pressed to relinquish their "illegitimate" babies, while in the same period Black unmarried mothers were stereotyped as excessively fertile welfare cheats.13 Which women, under which circumstances, were legitimately pregnant or legitimate mothers, and which were not, had always involved race and/or class distinctions in America. The pregnancies and childbearing of women of color and resourceless women had often deepened the vulnerability of these women, and deepened distinctions between them and middle-class white women who had resources and choices, long before Roe v. Wade. In the late 1960s and early 1970s, this history--much of which was still buried or too fresh to look at historically--could have tempered optimism about "choice" as a powerful equalizer.
This book is about the complexities of "choice" in the United States after Roe v. Wade. What happens when the special guarantee for all women--the promise that women can decide for themselves whether and when to be mothers--is expressed by the individualistic, marketplace term "choice"? How can users of such a term avoid distinguishing, in consumer-culture fashion, between a woman who can and a woman who can't afford to make a choice? What aspects of "rights" were masked or lost when the language of choice replaced the language of rights at the heart of women's special guarantee?
I use the term "rights" to refer to the privileges or benefits of being a human and specifically a woman in the United States, privileges or benefits that one can exercise without access to any special resources, such as money. For example, women and minorities in the United States have struggled for and won "voting rights," that is, the right of all citizens over a certain age to vote, even if they have no money, no property, and no other resources. By contrast, choice, including the popular and problematic form "the right to choose," has come to be intimately connected to the possession of resources. Many Americans have developed faith in the idea that women who exercise choice are supposed to be legitimate consumers, women with money. This is true even when the choices they exercise, such as the choice to become a mother or the choice to end a pregnancy, might be considered a very fundamental issue of rights.
Like the copywriter in the Kenneth Cole shoe ad that is the epigraph for this book, I find the slogan "the right to choose" fairly ridiculous. It impossibly mixes "right," a privilege to which one is justly entitled, and "choice," the privilege to exercise discrimination in the marketplace among several options, if one has the wherewithal to enter the marketplace to begin with. Our Constitution does not, of course, guarantee anyone the right to enter the marketplace of reproductive (or any other) options. As I discuss later in this chapter, the Supreme Court's decisions regarding the legitimacy of the Hyde Amendment (an act of Congress denying federal funding for the abortions of poor women) have proved that.
Historical distinctions between women of color and white women, between poor and middle-class women, have been reproduced and institutionalized in the "era of choice," in part by defining some groups of women as good choice makers, some as bad. During a time when babies--and pregnancy itself--became ever more commodified, some women were defined as having a legitimate relationship to babies and motherhood status, while others were defined as illegitimate consumers. These distinctions and definitions emerged quickly in the era of choice and solidified across the last quarter of the twentieth century. I will examine how choice-driven distinctions undermined the possibility, so vibrant in the early celebrations of Roe, that all women would be equally empowered by legal abortion.
I am also concerned with two additional aspects of choice, issues that are rarely confronted in discussions about pregnancy and abortion, childbearing, adoption, and related subjects. First, given popular definitions of good choice makers and bad, I believe it is crucial to consider the degree to which one woman's possession of reproductive choice may actually depend on or deepen another woman's reproductive vulnerability. Parts of the book will explore this dynamic, interactive quality of choice.
Second, and perhaps most important of all, I am devoted here to making the argument that simple "choice" actually underlies the very popular (though much denied) idea that motherhood should be a class privilege in the United States--a privilege appropriate only for women who can afford it. I am convinced that choice is a remarkably unstable, undependable foundation for guaranteeing women's control over their own bodies, their reproductive lives, their motherhood, and ultimately their status as full citizens.
I consider the problem of choice by investigating its role in the ways Americans have talked about abortion, adoption, and welfare over the past generation. I am also interested in how "choice" figured in creating public policies to govern women's behavior in these areas. I start off by looking at two immediate post-Roe developments--the denial of federal funding to pay for the abortions of poor women and the emergence of the foreign adoption market. Together these developments at the dawn of the era of choice facilitated a crucially consequential shift in the claims associated with the Supreme Court's bold ruling: from women's right to consumer privilege.
THE MEDICAID CASES: HOW CONSUMER PRIVILEGE TRUMPED REPRODUCTIVE RIGHTS
At the very moment when the era of choice was born, Supreme Court Justices William Rehnquist and Byron White excoriated "choice" and the women who would exercise it. In their dissenting opinion in Roe v. Wade, Rehnquist and White defined "the power of choice" as based on a woman's "convenience," "whim," "caprice," on women willing to "exterminate" their pregnancies "for no reason at all," or because of their "dislike of children."14 The dissenters clearly and early associated "choice" with bad women making bad choices. In this way they provided a harbinger of the future.
The dissenters' language is a reminder of the historical moment in which "choices" were granted to women. For about a hundred years, the law had denied women reproductive choices, including, for much of that time, access to effective methods of birth control. Women who tried to control their reproductive lives were first criminals and later, in the twentieth century, diagnosed as mentally ill.15 In addition the country was just emerging from a generation of widespread cultural hostility to white, broadly middle-class mothers who "chose" to work outside of the home for wages. Such women were frequently and prominently tagged as having made poor, selfish, and damaging choices. A 1955 article in the popular women's magazine McCall's, "Is a Working Mother a Threat to the Home?" was typical. The article featured a male psychiatrist's assessment of working mothers as bad choice makers: "Until children are atleast six, motherhood is a twenty-four hour job and one that no one can do for you. A mother who runs out on her children to work--except in cases of absolute necessity--betrays a deep dissatisfaction with motherhood or with her marriage. Chances are, she is driven by sick, competitive feelings toward men, or some other personality problem."16
When, in 1973, Roe granted what both the majority and dissenting opinions in Roe v. Wade called "choice," this represented, on top of everything else, a major cultural shift in mainstream Americans' view of women. Yet another male psychiatrist-expert, this one quoted in the issue of Time magazine that reported the Roe v. Wade decision, guided Americans toward a new, post-Roe view of choice-making women this way: "For the woman who let her life wash over her, who has let her life be directed by forces outside of herself, to make a decision to take charge of her life can be an extremely liberating, positive experience. For the first time in her life, she is the master of her destiny."17 Indeed, American womanhood had been redefined.
"Women" were supposed to be alienated from reproductive and employment choice making in the middle decades of the twentieth century, but race definitely created divisions and distinctions among women. For one thing, African-American women had always worked; since the end of slavery, they had typically worked outside of their homes for wages.18 In recent times, these same women had been provided with publicly sponsored access to birth control long before other women, an opportunity that poor, minority women were pressed to accept as a duty. A pre-Roe study of birth control distribution and race found that counties "in which family planning services were available as of 1969 were likely to have a higher percentage of Blacks than those counties in which services were not available." This same pattern, the study found, "appeared in most regions of the country--in poor counties, in rich counties, in rural and urban counties."19 (Human rights activist Loretta Ross quotes a Louisianan in this era to explain some white support for such a pattern: "The best way to hate a nigger is to hate him before he is born.")20
African-American women and other women of color were pressed early and often in the years before Roe to avail themselves of "family planning" services as an antipoverty and population-control duty. The number one reason that the federal government increased expenditures for birth control (mostly targeting women of color) between 1967($4.5 million) and 1971 ($24 million) was to diminish poverty and "prevent, reduce, or eliminate dependency."21 Reproductive autonomy, or a woman's right to control her own body and her destiny--her right to make choices--was way down on the list of reasons.
In the period immediately following Roe v. Wade, unofficial, extra-legislative public policy continued to target poor women of color in ways that clarified dramatically the limits of the Court's ruling. Sociologist Elena Rebecca Gutierrez has described how the fertility of a Mexican immigrant woman in California--one of many22--was targeted in this era:
While under general anesthesia in preparation for her Cesarean section delivery, Jovila Rivera was approached by a doctor who told her that she should have her "tubes tied" because her children were a burden on the government. Ironically, Ms. Rivera was not receiving public assistance, nor were any of the other plaintiffs in the Madrigal case [a class action suit brought by Mexican-origin women sterilized against their will]. However, it was the doctors' perception of these women as poor welfare recipients that deemed them necessitating sterilization.23
It became impossible to claim that Roe could grant all women equal protection, reproductively, after the U.S. District Court for the District of Columbia noted in 1974 the existence of "uncontroverted evidence that poor people, particularly pregnant women whose deliveries would be paid for under Title XIX [of the Social Security Act], had been coerced into accepting sterilization under the threat of losing welfare benefits."24 News of coerced sterilizations of poor African-American women in Alabama and South Carolina received national attention between 1973 and 1975.25 Two women, Virgil Walker and Shirley Brown, dealt with a South Carolina obstetrician who made public policy on his own: he refused to accept as patients any welfare recipients who already had a certain number of children unless they agreed to be sterilized.26 In the spring of 1974, having been presented with some of the "incontrovertible evidence," federal judge Gerhard Gessell ordered the government to redraft its sterilization regulations regarding welfare patients.27 And in the summer of 1975, the government officially acknowledged that some health and welfare professionals were exerting this kind of pressureagainst poor pregnant women when it adopted an anticoercion amendment aimed at government employees and anyone who managed or received federal funds. These personnel were enjoined from coercing or endeavoring "to coerce any person to undergo an abortion or sterilization." 28
Despite the ugliness publicly associated with sterilization, however, the federal Department of Health, Education, and Welfare decided at the end of 1974 (seven months before Congress passed legislation to stop sterilization abuse of poor women) to develop an attractive federal funding scheme for reimbursing the states for sterilizing poor women. The funding scheme allowed for much less generous reimbursement for abortions. 29 For many poor women after Roe, perhaps especially for poor women of color, reproductive choice came to mean deciding between an abortion they didn't have the money to pay for and a sterilization they also did not have the money for, but for which the federal government would pick up the tab. Many poor women and their advocates interpreted this 1974 policy as an official expression of the government's desire and determination to curtail certain women's childbearing permanently. 30 For some women, choice was, early on, a hollowed-out promise.
In the early 1970s the federal government was crafting ways to reduce the childbearing of poor and minority women. But studies showed that these women were, on their own, seeking and often obtaining abortions at rates much higher than those of white middle-class women. A New York City study conducted between 1972 and 1973 (New York State legalized abortion in 1970) found that there were twice as many white women of childbearing age as Black in the city. But Black women were getting more abortions. Of the 69,776 abortions performed during this period, 47.6 percent were obtained by Black women, 39 percent by white.31 Several years later, a national study indicated that "the poor" obtained about three times more abortions than "the non-poor."32
In the middle 1970s, however, negative attitudes toward poor, minority, childbearing women became much more powerful and relevant to many Americans than factual information about how many children or abortions these women actually had. As I will make plain in Chapter 5, these years saw the emergence of widespread hostility toward such women--often called ghetto matriarchs, and then "welfare queens." Atthe same time, the anti-abortion rights movement was coalescing and developing its tactical agenda. When these two strains of hostility entangled, the result was a political program that fatally attacked the idea of abortion rights and seriously diminished the citizenship status of poor women in the United States. In these years, federal-level politicians and others devised and promoted restrictions on abortion access to crack down on poor women as choice makers. They also drew on the unpopular specter of poor women making choices to establish the sturdiest anti-abortion beachhead they could. These accomplishments were completed in 1980, before Ronald Reagan became president. Sarah Weddington reflected on the developments that followed Roe when she wrote years later, "I felt--and still feel--a chill when I think about [those] years."33
Almost immediately after Roe v. Wade, state departments of social services began to craft rules to limit the use of public funds to pay for the abortions of poor women. In Utah, for example, the rule said that a woman seeking an abortion must submit an application to the department of social services and the department must approve the abortion as therapeutic, that is, "necessary to save the mother's life or to prevent serious and permanent harm to her health." Like a number of early state efforts of this kind, Utah's attempt to restrict public funding was invalidated by a federal appeals court that decided "this broad abortion policy is intended to limit abortion on moral grounds." Such a policy, the court found, "constitutes invidious discrimination and cannot be upheld."34
In the first years after Roe, most federal courts agreed that it would be unconstitutional for a state to refuse to pay for a poor woman's elective abortion while agreeing to pay for other pregnancy-related medical treatment through its Medicaid program.35 Similarly, the Bartlett Amendment of 1974, an early, unsuccessful congressional effort to restrict public funding, was condemned by the Congressional Research Service because "the courts have declared that all such ... actions represent illegitimate interference with the reproductive freedom acknowledged in Roe."
Senator Edward Brooke of Massachusetts, one of a number of Republican senators who vigorously championed abortion rights in the 1970s, spoke aggressively on the Senate floor in 1975 in an effort to preserve reproductive rights for poor women. He pointed to the fact that federal courts had repeatedly ruled that "under the Fourteenth Amendment, once a state makes medical services available to poor women, it cannotdiscriminate against those women who choose to terminate their pregnancy during the first trimester."36 Brooke emphasized that neither state laws nor the Bartlett Amendment would outlaw abortion, but that all of these efforts would "put an economic test on the questions of abortion." Brooke, an African-American, spoke boldly about how anti-abortion strategists were willing to use poor women to create class-privileged access to abortion in order to further their cause. "What they really wanted to do," he said, "was to get a constitutional amendment and failing to get this constitutional amendment, they targeted on the most vulnerable sector of our society; namely, poor women who could not afford to have an abortion ... At the same time, other women who could afford it could make that decision and go to a safe, legal clinic and have an abortion." Senator Jacob Javits of New York made the same point more bluntly, pointing to the "essence" of the matter: "The poor use coat hangers and the wealthy go to clinics."37
Federal court rulings and politicians' bold statements between 1973 and 1975 insisted on the intentions of Roe to provide equal protection for all women. But a group of 1976 Supreme Court cases dashed the hopes of those concerned about protecting the reproductive rights of poor women. One legal scholar called these cases "a surprising and severe setback for those favoring unhindered access to abortion" because they upheld state regulations denying Medicaid funding for all nontherapeutic (elective) abortions.38 At roughly the same time that the Supreme Court acted, Congress too affirmed its willingness--by adopting the Hyde Amendment--to forbid the use of Medicaid to pay for the abortions of poor women.39
The Roe v. Wade decision had, it seemed, made constitutionally impermissible the public policy view that abortion in and of itself was morally objectionable.40 But these new developments, spearheaded by anti-abortion advocates, trumped Roe. They represented a major victory for religiously inspired anti-abortion policy makers. One observer explained, "[A]ny literate adult living in the United States since 1975 who has paid attention to politics knows that the exclusion of abortion services from Medicaid is motivated by opposition to abortion."41 Representative Henry Hyde of Illinois, the author of the amendment, was anything but shy about admitting his intentions and his strategy. In June 1977 Hyde described his agenda this way: "I certainly would like to prevent,if I could legally, anybody having an abortion, a rich woman, a middle-class woman, or a poor woman. Unfortunately, the only vehicle available is the HEW Medicaid bill."42
Henry Hyde's efforts to restrict government support for poor women's abortions were so successful because by 1976 a critical mass of anti-abortion members of Congress had been elected--and the anti-abortion movement itself had emerged and grown strong.43 Also, a critical mass of Americans did not approve of associating the sexual behavior of poor women, particularly minorities, with "choice." Many Americans, taking cues from the media treatment of poor women, questioned why their tax dollars should go for cleaning up the mistakes of careless, oversexed women.44 Paradoxically, many of the same people believed that poor women should have fewer children and participated in stigmatizing "welfare mothers." And many believed that this paradox could be resolved only by constraining the choices that poor women could make. (This is what, for many, made sterilization such an attractive policy option.) Jacob Javits pointed out at the time that the effort to deny federal funds for poor women's abortions "eliminates all decision-making and exercise of choice on the part of women who are poor, thereby infringing upon their civil rights and personal freedom."45 Supreme Court Justice William Brennan emphasized that the rulings restricting funding embodied a "distressing insensitivity to the plight of impoverished pregnant women" and forced such women to "feel they have no choice."46 In 1980, the majority of the Supreme Court, in Harris v. McRae, upheld the Hyde Amendment and justified denying federal funds for the medically necessary abortions of poor women. Here Brennan and the other dissenters declared, "the reality of the situation is that [these policies] ... effectively removed ... choice from the indigent woman's hands."47
It is worth noting here that die-hard anti-abortion congressmen in the mid-1970s used House debates about restricting funds and choices for poor women as opportunities to mount discussions about all women as bad choice makers. The issue whether federal funds should be available for rape victims provided such an opportunity. Representative Richard Schweiker of Pennsylvania spoke vehemently against funding for rape victims because, he said, "There can be no question that a rape or incest provision would invite fraud and compound the problems of law enforcement since one sure way to obtain an abortion is to charge rape."48Oklahoma Senator Dewey Bartlett, whose unsuccessful no-funding amendment preceded Hyde's, agreed with this perspective. Bartlett pointed out, "The person who is raped very fortunately in the first place very seldom becomes pregnant." Bartlett even went so far as to suggest that the very rare woman who becomes pregnant as the result of a rape has herself to blame. A responsible person, he said, would go "immediately to a doctor for a D&C and in that way presumably would not become pregnant."
In the mid to late-1970s, the abortion-funding cases suited the purposes of many politicians and policy makers for at least three important, choice-related reasons. First, the cases could be used as vehicles for dissolving the relationship between federal funding and "extermination." Second, the cases provided a way to end poor women's "inappropriate" and "unearned" relationship to choice. And third, the funding cases gave many politicians and others a way to dissociate the government from the "tyranny" of rights claims and from financial responsibility for guaranteeing rights. Dewey Barlett offered an analogy to show the gist of this last, important appeal of the funding cases: "Hopefully," the senator said, "we are not at the point that because we have a right to read our morning newspaper, the Government has an obligation to provide all of us home delivery."49
The abortion-funding cases gave many politicians and jurists the opportunity to express their dislike of incessant rights claims and their determination to halt government expenditures in the name of these rights. In the context of the funding cases, anti-funders first of all disavowed the association of abortion rights and "women's rights" that Roe v. Wade had foisted on them. Time magazine noted in 1977 that the Hyde Amendment put "people who believe that abortion is every woman's right ... in retreat."50 Beyond this, the cases were generally considered to have dealt a serious blow to the notion of "welfare rights" as well. Legal scholar Susan Frelich Appleton observed that Harris v. McRae and the other Supreme Court decisions validating the exclusion of abortion from Medicaid funding "unequivocally confirm that governmental protection of the poor--even the provision of such essentials as necessary health care--is a matter to be resolved [not by courts or by reference to constitutional rights] but ... in accordance with majoritarian will."51
Senator Robert Packwood of Oregon, another abortion rights Republican, argued that the funding cases were at their heart discriminatory and directly released the government from responsibility for enforcing equal rights. Packwood described the Hyde Amendment as discriminating "against the women of this country, poor women to be exact, and black women in particular--who constitute the greatest proportion of Medicaid abortion patients." Most distressing, the amendment "flies in the face of all the progress this country has made toward granting equal rights toward every American, and is the worst example of socially unjust legislation this Congress could ever hope to put into law."52
Finally, the funding cases strongly suggested Congress's and the courts' interest in distancing themselves from a commitment to human rights. All the available indicators pointed to increased medical complications and deaths as a result of curtailing public funding for abortions.53 But Congress did not consider this information. One group of public health observers called it "remarkable" that Congress "passed the Hyde Amendment without establishing any mechanism for examining the human consequences of its actions."54 Brenda Joyner, an African-American abortion provider, spoke some years later about a crucial "human consequence" of the amendment: "The Hyde Amendment will not pay for a $200 or $300 abortion procedure for a poor woman on Medicaid. But it will pay for a $2000 to $3000 sterilization procedure for the same poor woman."55
The funding cases gave politicians and jurists a chance to resist publicly the government's expanding association with rights and its expanding role in ensuring access to rights. The cases also became an opportunity to insist on reasserting the traditional functions of government, especially reminding Americans about government restraint. When the Supreme Court decided that the state of Connecticut could refuse to pay for a poor woman's elective abortion, the Court emphasized that lack of money could indeed prevent a woman from getting an abortion. Justice Lewis Powell explained for the majority, however, that the Connecticut abortion funding regulation didn't cause that woman's poverty. And the state regulation itself didn't stop the woman from obtaining an abortion. Powell wrote that the Court was sympathetic to the plight of the poor woman who wants an abortion but doesn't have the money to pay for it. But for the Court's majority, Powell explained,the main point was "the Constitution does not provide judicial remedies for every social and economic ill."56 Three years later, writing the majority opinion in Harris v. McRae, Justice Potter Stewart returned to this theme, that the government is not responsible for a person's poverty or for alleviating it. The government's responsibilities, Stewart wrote, must be narrowly drawn: "[Although government may not place obstacles in the path of a woman's exercise of her freedom of choice, it need not remove those not of its own creation: Indigency falls in the latter category." 57
In these cases between 1976 and 1980, the Supreme Court backed the government away from taking responsibility for causing poverty, for alleviating poverty, and for paying the bill for poor women to access abortion--a medical service that many believed Roe v. Wade had established as a "right." At the same time, in Congress, a number of representatives and senators regularly offered an alternate definition of abortion and the abortion-seeking woman, a definition that would justify removing federal funds. In Congress, abortion often became just another service that a consumer could or could not purchase, depending on how much money she had. Representative Charles Grassley of Iowa made the case for treating abortion more like other "goods and services": "Some argue that the Hyde Amendment deprives poor women of something that more affluent women can pay for." Nothing, he suggested, is the matter with that, since in all other matters that is the natural course of things.58 While Grassley tried to normalize abortion as just another consumer service, Senator Orrin Hatch of Utah aimed to normalize the poor woman affected by restricted abortion funding. He cast her as a consumer, like any another woman. Imagine the abortion-seeking woman as a potential spender who could, if careful, stash away a "five" or a "ten" every couple of days, Hatch said. "[T]here is nothing to prevent [a poor woman] ... from either exercising increased self-restraint, or from sacrificing on some item or other for a month or two to afford [her] own abortion." 59
Those who insisted that abortion was just another consumer service and the unwillingly pregnant woman just another consumer ignored, of course, that unlike the typical consumer, the woman here--even if she had the resources--did not have the time to save. Public health officials were clear about facts that some politicians chose to obscure, "that therisk of death [from abortion], though small, increases by almost 30 percent with each week of gestation over eight weeks, and the risk of other major complications increases by about 20 percent with each additional week past the eighth."60 Not surprisingly, the poor woman's access to resources was just as compromised as her access to time. When the Hyde Amendment became law, the average cost of an abortion in the United States was $280, forty-two dollars more than the average AFDC, or welfare, check for an entire family for a whole month. Researchers at the time found that poor women could pay for their own abortions only by sacrificing (to use Orrin Hatch's term) the basics--"food and shelter for themselves or their families."61
While a growing number of politicians pressed hard to transform abortion from a "rights" issue into a consumer-type issue--an issue for which the government had little responsibility--some politicians continued to insist that Roe v. Wade had established abortion as a constitutional right under the right of privacy. William Hathaway of Maine sternly reminded his fellow senators that "we do not have the right to deny constitutional rights to people because they are poor." He reminded the Senate that in the United States, the government allocated money in many cases to help poor people exercise their constitutional rights. He cited public support for public defenders who helped "people avail themselves of their civil rights ... so that people will not be denied equal protection under the laws." Hathaway insisted that "the money being spent [before Hyde] for an abortion achieve[d] a similar purpose, because it ... allow[ed] a poor person to avail herself of her constitutional right." Robert Packwood pointed out that to a certain extent even in the absence of a constitutional right or guarantee to education, health care, and housing, the government looked after the poor in these areas. Wasn't it ironic, Packwood asked his colleagues, that in the case of abortion, the Supreme Court had "guaranteed that every woman in this country, rich or poor, can make a choice as to whether or not [she] wants an abortion. Only we effectively deny it to the poor [woman if she] cannot pay for it."62
When abortion rights proponents pointed out this unequal denial of access based on poverty, or asked why the government supported policies that priced abortions out of reach of the poor, anti-abortion rights politicians responded in ways that elevated the causes of limited governmentand consumerism.63 These responses pointedly eclipsed the causes of the 1960s and early 1970s: racial equality, economic justice, women's rights, and abortion rights. In 1976, Representative Jim Santini of Nevada explained his position in these terms: "There are a host of services and facilities that are not realistically available to the poor but enjoyed by those in better economic status because of that economic status. Does this constitute economic discrimination? If so, then only a completely socialistic state would ever eradicate such a prejudice."64 Senator Hatch argued this point in a way that melded consumerism and conscience. He asked why Americans should be forced to pay for something they abhor.65
Perhaps President Jimmy Carter expressed the political philosophy of the opponents of abortion funding most richly during an interview with NBC news reporter Judy Woodruff in 1977. Carter managed to weave the rights-denying, the small-government, the consumerist, and the anti-abortion arguments together elegantly enough to be memorable. Woodruff asked Carter, "Mr. President, how fair do you believe it is then, that women who can afford to get an abortion can go ahead and have one, and women who cannot afford to are precluded?" The president responded, "Well, as you know, there are many things in life that are not fair, that wealthy people can afford and poor people can't. But I don't believe that the Federal government should take action to try to make these opportunities exactly equal, particularly when there is a moral factor involved."66
In 1980, the majority of the Supreme Court announced that it agreed with serial majorities in Congress that had approved and reaffirmed the Hyde Amendment. The Supreme Court ruled in Harris v. McRae that Roe had not established a constitutional right to abortion. It had merely promised women protection from "unduly burdensome interference with [their] freedom to decide" to terminate a pregnancy.67 In other words, the government would not criminalize abortion, but neither would the government pay for it, no matter where that left a poor woman. These majorities, and the Americans whose attitudes they represented, muscled a market perspective right past racial equality and other human rights claims regarding reproductive rights.68 The abortion-funding cases became a platform from which various constituencies could express what one observer called at the time their "growing annoyance with abortion rights."69 The cases also provided, not for the first or the last time, an opportunityfor the government to raise censoriously the subject of the sex and reproductive lives of poor minority women--and to use this subject as an argument for restricting the size and scope of government and government expenditures.
The Congress, the Supreme Court, and the president all endorsed abortion-funding restrictions for poor women but did not investigate the impact of the restrictions. Others did, though.70 Among the findings was information that clearly established poor women as deeply alienated from consumerism, despite the funding cases' mandate to define abortion as a consumer service. A federal district court judge cited evidence that "many indigent women who were able to raise the money for their abortions [did] so only by not paying rent or utility bills, pawning household goods, diverting food and clothes money, or journeying to another state to obtain lower rates or fraudulently using a relative's insurance policy."71 These findings applied generally to a substantial number of women. The Alan Guttmacher Institute found that just before the Hyde Amendment went into effect, 295,000 poor women a year had abortions paid for by Medicaid. Just following the enforcement of the amendment, the number declined to about 2,000 yearly.72
Horror stories began to crop up in the late 1970s, stories that attached faces and other details to these statistics. One story from Ohio, a state where the impact of the abortion-funding decisions was harsh, captured the full tragedy of transforming abortion from a woman's right into a consumer's privilege in the years immediately following Roe v. Wade. A teenage mother, eligible for Medicaid but ineligible for abortion coverage, by no definition in the world an empowered consumer, shot herself in the stomach after having been told by a public hospital "that she could not have an abortion unless she paid $600 in cash."73
FOREIGN ADOPTION: THE RELATIONSHIP BETWEEN CHOICE AND CHOICELESSNESS
When abortion rights advocates began to call their cause "choice" and imply that now all American women had "choice" and that the great crusade was to preserve "choice," the poor Ohio teenager--and other poor women struggling to establish both their right to have children andtheir right to abortion--were not, generally, part of this discussion. In fact, many fertile women living in the United States at this same time, the 1970s, lacked the means to control their fertility, and many of these women were poor. Thousands of women in these groups lost their children to adoption or foster care, a subject I will take up in Chapter 6. But it is worth noting here that while many women had won a significant degree of reproductive liberty in the 1970s, many others had not. LeRoy Wilder, a member of the Karuk Indian tribe in California and an attorney for the Association on American Indian Affairs, reported in 1978 on "a frightening, pervasive pattern of the destruction of Indian families in every part of this country." Available figures at the time documented, for example, that one out of eight Indian children in Minnesota was adopted. In the state of Washington, the Indian adoption rate was nineteen times higher than the rate for white children. This pattern held across the country. A Choctaw chief decried the disrespect Indian families continued to encounter, especially the willingness of non-Indian social agencies to challenge their "parental capacities."74
Poor mothers caught in situations such as these did not have "choice" and "privacy." These terms, which seem to create an elegantly personal space where the individual woman could make a life-defining decision, severely distorted the reality of many women. Legal scholar Dorothy Roberts explains, "The traditional concept of privacy makes the false presumption that the right to choose is contained entirely within the individual and not circumscribed by the material conditions of the individual's life."75
When Americans began to refer to reproductive liberty by the simple name "choice," they obscured the fact that millions of women in the United States--and abroad--lived in conditions of poverty and oppression that precluded many of the kinds of choices that middle-class American women thought of as a matter of personal decision making. Then and now, many Americans have glossed over this: poor and/or culturally oppressed women in the United States and abroad may lack the money to "choose" abortion. They may live where abortion is inaccessible, illegal, or life-threatening. They may lack the resources to feed the children they have, much less a new baby. They may want to be mothers but lack the resources to escape stigma, punishment, or death for having a baby under the wrong conditions. They may lack the resources to avoid pregnancyfrom sexual violence. Can women in any of these circumstances be described as in a position to make a choice, a private, personal choice in the way that middle-class Americans generally use that term? When American women get lulled into believing that reproductive liberty is simply a matter of choice, for themselves, for all of us, that is shortsighted. The attitude of many Americans toward foreign adoption is an example of one cost of that shortsightedness.
In fact, the way the "adoption market" took form after Roe v. Wade is a case study of how some women's choices depend on exploiting the relative choicelessness of other women. In presenting this view of intercountry adoption (ICA), I focus tightly on the plight of poor mothers. This group is most often effaced in the process of evaluating the quality and quantity of available babies and the new relationships American adopters form with infants from abroad.76 The inability of poor mothers in Romania, Russia, and elsewhere to take care of their children is not the only important aspect of ICA. But neither should this aspect be ignored. In drawing attention to the tragic circumstances under which many poor mothers abroad lose their children, I do not mean to suggest that ICA is simply evil and that "child rescue" should never be undertaken. I mean, rather, to highlight the dynamics of this form of child transfer, and to underscore how such transfers almost always depend on extremely poor and/or culturally oppressed mothers who utterly lack choices.77
The adoption of babies from abroad took off in 1973. One study showed a 33 percent increase in the number of foreign children admitted to the United States for adoption between 1972 and 1973.78 This was not, of course, an arbitrary moment. It was precisely the moment when American women won the right to decide whether or not to carry a particular pregnancy to term. Once abortion was legal, many pregnancies that might have yielded adoptable babies were terminated. An unexpected corollary of Roe v. Wade was that once a woman had the right to decide whether or not to stay pregnant, many women also determined that they had the right to decide whether or not to be the mother of the children they bore. As I show in Chapter 4, unmarried women at this time began to refuse to let various authorities redistribute their babies to adopting couples. The legalization of abortion, in other words, had a lot to do with the rise of single mother-headed families. Many women inthe United States who got legal abortions or became single mothers in the 1970s felt that their newly won ability to control their fertility gave them a degree of independence and dignity. Dignity and independence are, in fact, the life-enhancing ingredients that tend to be incompatible with relinquishing a child.79
These newly enhanced aspects of life for many women in the United States were not so life-enhancing for women in poor countries. Beginning in the early 1970s, reports rolled in regarding children put up for adoption in countries where women were desperate. The operative principle in all of these cases seemed to be that desperation had created a baby supply for the new baby consumers: wealthy choice makers from the United States, Canada, and Western Europe. In the middle 1970s, for example, in the aftermath of a gruesome war, a U.S. State Department employee observed that while adoption was "not a common Vietnamese phenomenon," now the country and many Vietnamese families were without "any social fabric at all," and so, in thousands of cases, parents were unable to "find the resources" to keep their children.80 For many years after the Korean War, "the children of the poor" in South Korea remained the most commonly adopted foreigners.81 (When economic conditions in South Korea improved, the number of available babies, predictably, declined.)82 There are multiple studies, reports, and journalistic treatments that charge that parents (usually mothers) in third world countries were pressed by their desperation to give up their babies.83 In the early 1990s, following the fall of Romanian dictator Nicolae Ceauescu, Americans and other Westerners flocked to that country looking for babies born into social and political chaos. There were babies and older children whose parents couldn't feed them or otherwise provide for them.84 More recently, a baby-smuggling ring was uncovered in Agua Prieta, Mexico, where, according to news reports, "Social workers ... say they counsel dozens of mothers ... who are in such dire economic and social distress that they broker their children for money or shelter." A former journalist living on the Mexico-Arizona border commented on the baby smuggling: "It's like things have gotten really bad if women are offering to sell their babies."85 Referring to the current situation in China, where national policies limit childbearing, the cultural preference is for male children, and massive economic chaos prevails, one close observer wrote, "Behind all too many goods made in China, I nowknow for certain, are exploited workers, most of them women, any one of whom could be the mother of a child who winds up 'lost.'"86
Some observers have remarked that adopters are not, these days, primarily moved by "humanitarian" intentions when they arrive in Ecuador or Mexico looking for babies. Rather, they travel to poor countries because of the "acute shortage of white children" at home, what some analysts have called the "White Baby Famine."87 Observers have also pointed out that all the traffic goes in one direction--babies from the third world transferred to developed countries: "the more powerful nations ... 'robbing' [poor] countries of their children."88 Proponents of this perspective have said that wealthy couples in the United States are perpetrators of "a new kind of rather patronising colonialism."89 Some have even accused the richer countries of an interest in making sure that child welfare services in the target countries remain undeveloped "so as to ensure a continued supply of babies for the childless rich."90 An early critic of the surge in international adoption tied the transfer of babies from poor to rich countries directly to the historical, imperialist pursuits of the West: "[H]omeless and orphaned children in Bangladesh, Vietnam and Cambodia had been brought to this condition by the imperialist apportionment of resources to the rich, developed countries ... by wars in these countries fostered by imperialist powers."91
The transfer of babies from poor to rich countries is often discussed in marketplace terms, using tropes that emphasize how children in desperately poor situations have been transformed into commodities.92 In the late 1970s, stories about where to get babies were passed around, such as the one about a facility near Tijuana where "couples could pick out a child from a room full of babies, sort of like a supermarket."93 On a 1991 Sixty Minutes segment called "Babies for Sale," one American was quoted using an oil-field metaphor: "Don't you understand, Buddy," this American baby broker said to a representative of the Romanian government, "this is the last reservoir of Caucasian babies in the world."94
Vietnam, Romania, and other countries in crisis have been desperate to develop desirable, exportable commodities. Unfortunately, as one U.S. politician put it, sometimes that commodity is "babies instead of ... widgets."95 In the 1970s, impoverished Latin American countries generated a supply of babies to export. The number of Colombian babies adopted by foreigners was six times higher in 1980 than in 1977.96 Between1979 and 1989, South Korea placed about 4,400 babies in the United States each year, a tally that reportedly caused some commentators at the 1988 Olympic Games to observe wryly that "Korea's chief export was still babies." This claim deeply embarrassed the nation and stimulated efforts to slow down adoption.97 By the 1980s, 70 percent of all babies brought into the United States for adoption came from four countries: South Korea, Colombia, India, and Mexico, all countries with large, desperately poor populations. The rest came from El Salvador, the Philippines, Honduras, Sri Lanka, and Guatemala.
Reports from the front seemed to highlight the process of baby commodification. Sometimes reports indicated that inter-country adoptions didn't always yield the highest-quality babies, and passed on "consumer protection" advice, such as this nugget from a 1983 Ms. article: "Those in the adoption network with the strongest track records for good, untroubled adoptions are often the safest people to work with ... Pragmatically, if they place children who are seriously ill or retarded, word quickly gets around in adoption circles, and their business could dry up overnight."98 Reports also--wittingly or unwittingly--featured "shopping" metaphors so often that consumerist intentions completely over-whelmed any sense of inter-country adoption as a child-rescue mission. One international observer of the adoption scene told about running into the director of a large California adoption agency, who, "it was obvious," was "in Asia shopping for children ... Later, when I saw [this director] in the Philippines, he told me triumphantly that he had found an orphanage there that would supply him with babies."99
Americans who rushed to participate in the Romanian "adoption frenzy" in 1991 widely characterized their baby searches as marketing expeditions. 100 One woman told an American reporter: "This is so bizarre ... It's a little weird--like going around shopping." Another said, "Sometimes I feel sort of guilty, like the babies are being sold ... But," she added, with a nod toward comparison pricing and child rescue, "then when you think about open adoption in the States, and all the costs of that, that's like buying a baby. Besides, look at the conditions of these children's homes."101 One American, who went to Romania determined to help out in the orphanages and improve the conditions there for many children before he'd "pick out one or two" to bring home, ended up quite disillusioned. Instead of helping out, he said, "you find out you're drivingaround villages, basically asking what's the price per pound for babies?"102 New York Times writer Anthony Lewis described how some Vietnamese resented the transfer of babies from that war-torn country to the United States in 1975. He quoted a South Vietnamese lieutenant in Saigon: "It is nice to see you Americans taking home souvenirs of our country as you leave--China elephants and orphans."103
Perhaps many of these crude expressions have survived because journalists and others have aimed to expose the abuses of international adoption. But whatever intentions were involved, reports from the adoption fronts consistently demonstrated that the commodification of babies generally required one thing: the potential adopter needed to imagine the child as a product entirely separate from a mother, even when a mother was involved with her baby and nearby, even if there was no hard evidence that the baby was, indeed, an orphan. In 1975, for example, the deputy commissioner of the U.S. Immigration and Naturalization Service (INS) acknowledged that among the Cambodian and Vietnamese children brought to the United States as part of Operation Baby Lift following the collapse of the South Vietnamese government, there were many children for whom the INS had been "unable ... to develop persuasive evidence" that they were "in fact orphans or ... abandoned by their parents."104 Similarly, in the Romanian situation, Gene McNary, commissioner of the INS, acknowledged at a 1991 congressional hearing that "if orphan investigations were actually conducted probably 30% of all approved foreign adoptions would be questionable."105
Kathleen Hunt, who wrote about the Romanian adoption "frenzy" for the New York Times, reported that among children "in orphanages and hospitals [there], very few are bona fide orphans. Nor have they ever been technically abandoned."106 INS commissioner McNary explained how it could happen that desperate Romanian parents in the midst of social chaos tried to look out for but lost their children: "We have ... [sent] ... an investigator out to talk to natural parents, where the parents had not intended to give the child up, had instead thought that the child would come to the United States, ... [the biological parents would stay in touch with the child] ... and after the child was old enough to be returned to Romania ... the child would be returned. I'm sure," the commissioner added, "that's not an abandonment."107
Some years earlier, Martin Russo, a congressman from Illinois, describedthe anguish of a Vietnamese who complained about the means Americans used to obtain children in other countries for adoption. This woman described American strategies as "terrible procedures" for a number of reasons, but especially because they made it impossible for actual relatives to step in and become parent figures when necessary. Now that Americans had become involved, she said, too much money was required to adopt a child, even one who was a relative.108
Parents and relatives in poor countries lost children because demand for babies in the West exceeded supply. According to two experts on transracial and inter-country adoption, when this situation exists, there is a lot of potential "for finding alternative means of obtaining the scarce item."109 Indeed, stories about bribes and pressure surfaced wherever wealthy potential adopters showed up. An American television news reporter described the "unbelievable scene" in Romania in 1991, and captured a "baby broker" on camera explaining the distribution of money that facilitated adoption there: "Bribes, a lot of bribes, nurses, mother of the child, judges, attorneys, crown judges, people that complete the home study, everybody. Everybody wants some."110 A newspaper reporter formed a similar impression: "Thousands of people who could afford the plane tickets packed their suitcases with cash (to bribe doctors and orphanage officials and judges and translators and government bureaucrats), nail polish, candy bars and disposable razors (to pass out to nurses and women who may or may not be birthmothers) and flew to Romania to buy a baby."111
The most distressing aspects of these accounts are the parts that tell about middlemen "earning huge profits," for example "by persuading women to give up children for small sums and then producing forged papers for potential adoption." In the 1980s, experts reported these kinds of activities in China, Colombia, Brazil, Sri Lanka, the Philippines, "and possibly elsewhere."112 Again, these stories have been corroborated around the world, featuring "baby brokers eager to capitalize on ... confusion" and poverty, brokers who "exert undue pressure upon biological mothers, usually young, poor and unmarried, to get them to relinquish their offspring for adoption."113
Some observers have pointed out that rich Americans have thrown their weight--as well as their money--around when they have found inconvenient rules and regulations blocking foreign adoption. When, forexample, reports of abuse in Romania surfaced and consular staff "began applying a strict interpretation of [various visa and other] regulations," potential adopters complained bitterly to their congressional representatives back home. Melanie Bames, an adoptive mother, was bitter when she spoke before Congress. She lauded Americans who adopted "needy children" from poor countries and was shocked that these people should be "subjected to rude and inhumane treatment by our own Embassy," a bureaucracy, its employees claimed, that was only trying to follow the rules. These complaints were quickly effective. Politicians began to speak out about the need to grant "humanitarian waivers" to couples having trouble securing a child. In 1991 Congressman William Broomfield urged a new, less "rigid" definition of abandonment so that more children could be obtained for adoption. He made the case for bringing babies out of Romania this way: "Many American couples are desperately searching for a child they can love and raise as a member of their families. I would hope that America's laws would do everything possible to promote that spirit of generosity."114 When we consider how completely Broomfield's "spirit of generosity" depends on effacing the biological mother (or parents) of the baby-to-be-freed, we can get a glimpse of the relationship between a relatively wealthy American woman's choices and the choicelessness of a desperate, poor woman, a mother living in a faraway country.
In fact, Americans who have portrayed ICA as primarily a child rescue mission have tended to define the situation in ways that insist that the biological mother doesn't really count. This strategy, often unwitting I think, shares a lot with a strategy of the anti-abortion rights movement. Some anti-abortion rights activists and groups have waved pictures by photographer Lennart Nilsson, or others like them, as their iconic banners. These are photos of fetuses in utero, floating alone and magical in what looks like "outer space." There is no woman, no mother, in these pictures.115 It is not uncommon for those who characterize their mission--whether as adopters or as proponents of "fetal rights"--as one of child rescue to erase the interests and even the person of that woman in order to strengthen their own argument.116
For example, one of the strongest, most articulate, and most sophisticated spokespersons for ICA is Harvard law professor Elizabeth Bartholet, a person who successfully adopted two boys from Peru. Here is howBartholet expresses her support for foreign adoption: "My current vision [of adoption] seems to me so clearly right that I find myself impatient with the society that apparently sees things so differently. Adoption works, and works well, both for children in need of homes and for the infertile who want to parent."117 Bartholet does not consider here or elsewhere whether adoption works well for the mostly desperately poor women whose children "are in need of homes." Nor did Gene McNary, INS commissioner in 1991, who believed that "every orphan" who arrived in the United States "represents a dream fulfilled, a family enriched, and the successful conclusion of a process involving the adopting parents, a state or licensed child welfare agency, three federal agencies, and a foreign government." One might well consider, who is missing in this picture? Whose dream has not been recorded, much less fulfilled? The biological mother is not mentioned as one of the "involved" parties.118
Americans who have gone abroad to adopt and have later written about the experience have typically had little to say about the moral dimensions of the situation, or more precisely, the moral aspects of using their status and resources as consumers to take children from choiceless "surrendering" mothers. One woman reported that "on my fourteen-hour trip to Santiago ... to pick up my adopted Chilean child, I thought a lot about government policies that push large numbers of poor people into giving up children out of desperation. Should I have allowed my political conflicts," this woman muses, "to keep me from getting a child I deeply wanted?"119 Having raised the question, the author moves on and does not return to this matter. Elizabeth Bartholet acknowledges that during her adoption expeditions in Peru, she "did not get to know any birth-parents." She acknowledges that "most of these women [who relinquish babies] have no good options," but highlights the "stories" she's heard "of the pleasure that some women seem to take in the life they are giving their children, as they look at him or her cradled in the arms of eager parents from the faraway mythical land of opportunity."
It appears that Bartholet can believe in this "pleasure" experienced by relinquishing mothers because she believes that poor Peruvian women are profoundly different from herself. I say this because of Bartholet's description of her own quick and fierce bonding with the boys she adopted, a bonding that made the specter of separation unbearable for her. She writes that getting through the bureaucratic moments of uncertainty inPeru "without somehow cracking" were among the most challenging experiences of her life. The Harvard professor adds, "The worst aspect by far was my terror that the child I had come to think of as my own shortly after he came home to live with me would be taken from me."
Bartholet writes, without any apparent sense of irony, that her friends would probably not understand "what it is like to have other people be in a position to take away for any or no reason the child you think of as your own." She acknowledges that the child in question had been in her life for only one week, so her friends would have a particularly hard time understanding "why this child would feel uniquely mine."120 Bartholet and other inter-country adopters use terms like "pleasure" and "brave and courageous" to describe the experiences of poor third world mothers when their children are taken by foreigners.121 When inter-country adopters imagine their own potential loss of a child they've just acquired, the terms are typically much more dramatic. One American woman having trouble leaving Brazil with a baby she was trying to adopt said, "Without my child, I prefer to die."122
During a congressional hearing on the out-of-control Romanian adoption situation, Representative Lamar S. Smith of Texas asked a woman who had just adopted a child in that country, "So, you're not disturbed by the fact ... in some foreign countries you may have a living parent still exerting some control over that child, and you're not concerned about that parent being forced to give up their child or feeling any pressure to do so?"123 This woman and others who testified at the hearing explained that the adoptions were justified because these children would otherwise live in terrible poverty.124 One woman asked, "Can't we give these children a chance to live in America where ... [we] are able to provide for them?"125 Others have claimed that not adopting children out of impoverished families, communities, and countries is "grossly immoral."126
Often, however, the justifications for foreign adoption focus clearly and forthrightly on the needs of Americans. U.S. Representative Christopher Smith of New Jersey argued in 1991 that because of foreign adoption, "many families have become more complete and much love has been shared as a result of these adoptions." Smith's colleague, Bob McEwen of Ohio, used even stronger terms to explain why an American couple's infertility justifies transferring babies across national borders: "Adeath in a family cannot have a greater strain on a relationship than the inability to have a family ... [M]ost people do no t ... fully appreciate the tremendous, tremendous strain that is on a potential mother, a potential father, a loving family that wishes to become a family."127 Again, the argument here relies on the premise that Americans have the reasons and the resources to transfer babies; they have primacy as legitimate consumers of children and parenthood.
Elizabeth Bartholet (and many others) cite a "side benefit" of these adoptions: "the enrichment of our understanding of the meaning of family and community." Families "built across lines of racial and cultural difference," she feels, are "families whose members must learn to appreciate one another's differences while experiencing their humanity."128 This may be a particularly obtuse and even cruel "side benefit," since the American's choice to celebrate cultural diversity and difference through adoption depends on the immiseration of a woman from a "different" culture and on her presumably profound loss of a child: on her choicelessness. Here the American woman's wealth allows her to be a legitimate consumer of multiple cultures, at a cost that she need neither acknowledge nor pay.
At one point Bartholet writes: "I can see [my adoptive son] now, standing proudly behind a table strewn with our Peruvian treasures, describing them ... handing them to an eager friend to be passed around the class, telling his classmates about how the Spanish invaded and how they stole the golden artworks of the Inca rulers and boiled them down:"129 A critic of ICA might identify Bartholet's acquisition of "Peruvian treasures"--the boys she adopted--with the depredations of European invaders.
Finally, and perhaps most forthrightly, some Westerners have justified ICA as "the safer way." One expert explained, "[A]s own-country adoption becomes more open, more couples may of course turn to inter-country adoption in the expectation that they will not have to concern themselves too much with issues about parental access and possible interference. 130 Here we get a glimpse of the relatively wealthy inter-country adopter's determination to maneuver unimpeded in the"free market" and to insist, as the privileged consumer, that child acquisition have no strings attached. This argument for ICA wants to entirely efface the biological mother in order to make things easier for the consumer.
This discussion is not meant to constitute a brief against foreign or inter-country adoption. It is meant to suggest what happens when choice entitles Americans to acquire poor children in other countries. It is meant to demonstrate that Americans may too easily define poor women as illegitimate mothers because they are poor. A way to think about how Americans' sense of consumer-related entitlement applies to motherhood is to consider why child-rescue adopters speak so rarely about methods of child rescue other than acquisition by adoption. For instance, Americans might participate in programs that support specific Peruvian or Korean or Indian families in their own countries. That way children could be "rescued" and could stay with their families.
Americans could also target their support to already-existing programs in poor countries that aim to keep families together. During the worst period in Romania, for example, the director of an "orphanage" worked hard to rehabilitate a group of children, providing good nutrition, education, and training in motor skill and language development, so that the parents of these children could afford "to take back their [healthy] children." The program was successful, reporting in March 1991 that it had facilitated sixty reunions, which included a number of children who would have otherwise been bound for American adoption. 131 And, of course, Americans who deplore child poverty abroad could be powerful advocates for foreign aid.
Since Roe v. Wade dramatically tightened the supply of adoptable babies, the market has demanded a new, dependable supply. Not surprisingly, the only way to re-create an adequate supply of babies was to find the children of the most resourceless, choiceless women in the United States and abroad and "rescue" these children from their disqualified mothers and other relations. As one legal scholar observed soon after Roe in an essay considering choice and motherhood: "Poverty is an alterable characteristic, bearing at least some relationship to merit."132 The reestablishment of a baby supply after Roe has depended on this maxim and its suggestion that poverty and maternity are an illegitimate mix.
CHOICE IS A MOVING TARGET
I have argued that the selection of "choice" as women's special guarantee underlay--or was deeply compatible with--the transition from abortionas a woman's right to abortion as a consumer privilege. I also understand "choice" as an invitation to focus on individual desires and to ignore the relationship between some women's resource-full choice making and other women's choicelessness. The meaning of choice has expanded, and mostly contracted, in many ways since the early 1970s, and not all of these ways are included in this book. For example, the courts and legislatures have redefined "choice" many times since 1973, with age qualifications for making the abortion choice, parental notification rules for teenagers, mandated waiting periods, counseling sessions, education/ propaganda requirements, ever-tighter restrictions on public funding, bribe programs that give women money if they get sterilized, and federal contests to reward states with low abortion rates. These and other non- "undue burdens"133 that now constitute and bind "choice" are a far cry from the simple image of "the woman and her responsible physician" sitting in consultation alone, "free of interference by the State," that was envisioned in Roe.134
Beyond legislatures and the courts, "choice" has been redefined again and again since the early 1970s, by technology and by popular opinion. Reproductive technologies to treat infertility--some aspects of which I discuss in Chapter 6--have pressed new meaning into "choice" and who gets to be a choice maker. Also, methods using drugs to induce "medical abortion" (the term used to refer to abortion using methotrexate and mifepristone, or RU 486, instead of traditional, surgical abortion) have lent additional meaning to choice. One study that investigated physicians' attitudes toward medical abortion found that in order to satisfy medical protocols, the counselor or physician had to evaluate the "prospective candidate" as a choice maker: is she "responsible enough to return for the necessary visits ... to report complications?" and so forth. Sometimes, the study's author reports, health care providers "encounter ambiguous cases where the patient meets all the formal criteria but 'seems' unreliable. In such instances, said one administrator, you find a way to 'talk her out of it.'"135 Medical protocols used to track the efficacy of early-abortion methods may involve weeding out questionable choice makers.
The new methods can also create an elite of "superior" choice makers. In fall 1999 I interviewed several abortion providers about the impact of medical abortion and "morning-after pills" on the meaning of choice. These physicians acknowledged that the growing availability ofabortion before six weeks may have the effect of creating a hierarchy of choice makers. Girls and women who take care of unwanted pregnancies early may be, in time, considered more knowledgeable, efficient, and responsible. Abortion seekers who wait too long for medical abortions and must get "old-fashioned" later surgical abortions may be viewed as less capable persons or bad choice makers. Over time, the core judgmental question--the typical question that has defined girls and women as bad choice makers--has mutated. We used to ask, especially in the case of an unwillingly pregnant poor woman, why did she have sex? Then we asked, why did she have unprotected sex? Then, why didn't she get an abortion? 136 Next, will we define bad choice makers with a question like this: What's the matter with her that she couldn't get an early, medical abortion? Here the shifting meaning of choice may threaten any fertile female, without reference to race or class. Anyone who waited just a day "too long" could be placed into the reviled category of bad choice maker.
The interacting arenas of professional, political, and public opinion have a crucial impact on defining and redefining good choice makers and bad, on legitimizing and variously demonizing serial meanings of choice. Psychologists Sharon Gold-Steinberg and Abigail Stewart studied and compared the experience of obtaining an abortion "under four sets of political-legal circumstances: illegal abortion, therapeutic abortion, legal abortion in the 1970s and early 1980s, and legal abortions in the context of protest, harassment and threats of violence."137 They found that the experience of being stigmatized was powerful for women who sought abortions during three of those four periods: "Women who had illegal abortions may have felt stigmatized by having to go outside of the law to secure reproductive freedom. Women who sought therapeutic abortions all too frequently were humiliated by members of medical boards. In the current political climate," Stewart and Gold-Steinberg wrote in the late 1990s, "women are vulnerable to being stigmatized by those who construe the choice to have a legal abortion as being morally wrong."138 Under all the circumstances--except the period immediately following legalization, when the association of abortion and rights was the strongest--women making the abortion choice were threatened as bad choice makers.
Would these women and others whose lives I've considered in writing this book have had different experiences if the law empowered them, asfull citizens, to have the right to control their own bodies, and if the culture facilitated this legal empowerment? "Rights" may have their own problems as a "special guarantee." I have come to believe, though, and try to show in this book, that if there is a hierarchy of special guarantees, surely choice must be at the bottom, the lowliest and weakest of all "guarantees." The chapters that follow aim to make a case for the proposition that, in a political and cultural context shaped by racism and sexism, the embrace of choice was deeply problematic. "Choice" turned out to be a term and an idea that reflected and foreshadowed the commodification of reproduction and a new, hard set of financial qualifications for motherhood.