ABORTION: A HUMAN RIGHT
New York City
In “Prochoice Puritans” [“Subject to Debate,” Feb. 13] Katha Pollitt quotes my New York Times Magazine article in which I explained why my father, an OB-GYN, grew increasingly committed to serving as an abortion provider even as he and his patients were subjected to harassment in the late 1980s. I noted that my father’s reaction might have been different had the women who came to him seeking abortions been “free love advocates for whom the procedure seemed a mere matter of convenience,” language that prompts Katha to insinuate that I (and implicitly my father) am unwittingly doing the work of antichoicers. Would Katha prefer that I re-invent my father?
She goes on to suggest that his perspective implies that a “sexy single woman” having an abortion should be made to suffer–indeed, subjected to a “walk of shame.” In fact, what it reflects is the belief that abortion should ideally be a last resort rather than a form of casual contraception and that unintended pregnancies are something all parties–women, men, counselors, physicians–should seek to minimize. If this is heretical to Katha, so be it, though I’m glad that her litmus test for what doctors who perform abortions must believe will never be applied, for if it were the field would likely be wiped out.
I was surprised to see myself quoted (from a letter I wrote to the Times) in Katha Pollitt’s column. But I was not surprised to see that I had struck a nerve. For a middle-aged feminist like Pollitt, my seemingly magical ability to avoid an abortion through the diligent use of contraceptives is an infuriating fact. But no, Ms. Pollitt, I am not perfect; I’m an adult. Getting pregnant is not the same thing as getting, say, lymphoma. In many cases, it–and the subsequent abortion–is a fairly simple thing to avoid. I would hope that more so-called feminists would urge young women to attempt to do so. Why is that so wrong?
I am not sure how we can conceptualize abortion except as a remedial procedure undertaken in response to something that “went wrong” or something “unwanted” that occurred. So it only makes sense that we formulate programs of public education and policy with the goal of reducing the frequency of things going wrong. Working toward a goal of zero frequency is not contradictory to the realization that zero frequency is never going to be achieved, and this goal must be accompanied by policies supporting available, accessible, affordable, safe remedies. There must be room for saying this aloud among those who hold prochoice moral convictions. Pollitt is absolutely correct, however, in raising the cautionary note that as we embrace this zero frequency goal, we never do it in a way that stigmatizes those seeking remedies.
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A big thanks to Katha Pollitt for picking up on the abortion shame-train ridiculousness. The New York Times, in a September front-page article “Under Din of Abortion Debate, Experience Shared Quietly” jumped right on board, stating that women “arrived as a result of failure of one sort or another.” It is precisely this sense of failure that must be eradicated from the abortion debate. Men are not deemed “failures” if they impregnate women. Neither should women see themselves as “failures” for having been impregnated. The only failures are those making legislation that fails to provide access for women seeking abortions.
Kudos to Katha Pollitt for her flat-out support for keeping abortion legal. This is not a political argument. Women bear children and women abort and the individual woman decides, every time, which procedure her body will undergo. Women will continue to make these decisions, regardless of how loud the puritans howl.
I applaud Katha Pollitt’s insightful dissection of abortion politics. As a feminist activist from Texas, I’m accustomed to running into antichoice people who demonize abortion, but I have also run into prochoice people who do the same. I was a naïve college student who thought all liberals agreed that abortion is a human right, until my friend and I started an abortion fund. Most leftist thinkers were puzzled by our raising money to help poor women pay for their abortions. I believe the reason for this lack of understanding is that women who get abortions do not speak up about it. They are silenced by this absurd social stigma. Yes, there are T-shirts that say I had an abortion and websites where you can tell your story, but what is necessary is for women to talk intimately with other women about abortion. My prochoice beliefs were further enforced when I began taking calls from women with nowhere to turn. I couldn’t do justice to the stories of these brave women and girls. Let’s just say that after everything my ears have heard, not only am I prochoice, I am proabortion.
SPYING ON US CITIZENS
In “NSA Spying Myths” [Feb. 20] David Cole declares the following to be a myth: “The courts have upheld inherent presidential power to conduct warrantless wiretapping for foreign intelligence purposes.” He goes on to say, “The fact that Presidents may have ‘inherent’ authority to take action in the absence of contrary Congressional intent does not mean they have uncheckable authority to do so once Congress has prohibited the conduct. That argument would mean FISA is unconstitutional, and no court has so ruled.”
Perhaps Cole would explain the following excerpt from the US Foreign Intelligence Surveillance Court of Review, in re: Sealed Case, November 18, 2002: “The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”
While it is true that the Truong case occurred prior to the FISA legislation, the ruling comes very close to saying that FISA could indeed be ruled unconstitutional–if FISA is interpreted in such a way as to encroach on the President’s constitutional power. The court’s position is exactly the reverse of Cole’s view that the President’s power is only “inherent” in the absence of Congressional legislation to the contrary. It seems to me that the debate over this issue is far from over.
CAROL R. FRENIER
New York City
David Cole writes of NSA spying myths, but there is a little ambiguity in some of his assertions: (1) He writes that FISA does not regulate listening to wiretaps targeted at foreign nationals abroad who are speaking to a person in the United States. In fact, that is true only “if such acquisition [does not] occur in the United States,” and at this juncture it is not publicly known where the NSA’s equipment is located for each such tap.
(2) Cole’s assertion that the warrant can be obtained after seventy-two hours of commencement of the tap by showing probable cause is literally correct, but many might read him to think information acquired by tapping can be bootstrapped onto probable cause for the tap in the first place. Actually, probable cause must exist prior to commencement of the tap. Cole’s piece bolsters my position that people have the right to remain tentative and hypothetical until after Congress reports factual findings, a process that admittedly might take months.
Professor of Law Benjamin N. Cardozo School of Law
Carol Frenier describes yet another myth propagated by the Bush Administration. The FISA review court in 2002 did say in dictum that Congress cannot “encroach on the President’s constitutional power” to conduct foreign intelligence surveillance. But it upheld FISA’s constitutionality, so its holding precludes the conclusion that any regulation of foreign intelligence gathering by the President amounts to “encroachment.” The court did not even attempt to define what sorts of regulations would constitute impermissible “encroachment,” but its holding makes clear that it did not consider FISA to come close to such encroachment. In addition, the court cited only a decision holding that before FISA was enacted, the President had inherent authority to engage in foreign intelligence surveillance, and that acknowledged the propriety of FISA (see United States v. Truong Dinh Hung, 629 F.2d 908, 915 n.4, 4th Cir. 1980). The President’s authority to act in the absence of any statutory guidance is very different from his authority to violate a criminal prohibition enacted by Congress.
Professor Lushing is correct that FISA requires warrants either when surveillance is targeted at a US citizen within the United States or when the information is physically acquired here. And he is right that one cannot use the seventy-two-hour period to develop evidence to support probable cause–the factual predicate must exist before the wiretap is put in place. But while he certainly has a right to remain “tentative and hypothetical,” I think we can judge the Administration on the legal claims it has made–especially its claim that the President as Commander in Chief cannot be restricted in any conduct that falls within the “means and methods of engaging the enemy.” That position–which would mean the laws prohibiting torture; cruel, inhuman and degrading treatment; arbitrary detention; and warrantless wiretapping of Americans are all unconstitutional–is not “tentative” or “hypothetical,” and we must be neither tentative nor hypothetical in rejecting it.
MORE ON WIRETAPS
A critical piece of DoJ testimony has gone unnoticed. On September 20, 2002, Associate Deputy Attorney General David Kris testified before the Senate Judiciary Committee on FISA. Lost in Kris’s 4,000-word official transcript is a sworn statement that directly contradicts a major alibi Bush has been floating: “Let me repeat for emphasis: We cannot monitor anyone today whom we could not have monitored at this time last year” (see www.usdoj.gov/dag/testimony/2002/krissenjud091002.htm). Kris was clearly indicating that FISA remains in effect, and was not superseded by the Patriot Act or anything else.
Worried sick about the state of things in Washington and the world, I turned to poetry. I read “I heard a fly buzz when I died,” and what happened is what follows.
EMILY DICKINSON ON WIRETAPS
I heard a faint click when I dialed
Then stillness in the wire
Like the stillness on the lips
Of sailors facing Elmo’s fire.
My mouth inside my face was dry
And breaths were dryer still
A suffocation born in fear
Unwarranted and against my will.
I gathered up my natural voice
That portion of my voice I
Could make heard, but then again
There came the tiny sound of spy.
A blue, uncertain, stumbling buzz
Between my listener and me;
And then my courage failed, and then
I could not bring myself to speak.