Chao-Ju Chen. Frontiers: A Journal of Women’s Studies. Volume 34, Issue 3. September 2013.
Introduction: The Many Faces of Roe v. Wade
Decided in 1973, Roe v. Wade is one of the most renowned US Supreme Court decisions. In the United States Roe has become an icon for women’s right to abortion and is described as “an engine of controversy,” giving rise to what Joan Williams has called “a gender war over the issue of whether women are or should be citizens of the republic of choice.” Roe’s impact has also extended beyond the United States. Although the international movement for abortion law reform began years before Roe, and some countries, such as Japan, the Soviet Union, and Britain, have had legalized abortion since the 1950s, Roe both informed and was informed by a larger global movement to recognize women’s reproductive freedom and equality. The High Court of Pretoria in South Africa referred to Roe in endorsing women’s right to abortion. The Supreme Court of Canada used the rulings of Roe v. Wade and Doe v. Bolton as grounds to find the Criminal Code of Canada’s restrictions on abortion unconstitutional.
Roe recognized women’s right to abortion in the name of privacy but also galvanized the anti-abortion movement in the United States. Similarly, the trajectory of Roe across national borders also fostered contradictory responses, which can be seen in court decisions against reproductive choice. The German Constitutional Court as well as the European Commission, for example, discussed and referred to Roe in their decisions restricting the right to abortion. US domestic and foreign policies that limit women’s access to abortion—the Helms Amendment, the Global Gag Rule, and so on—have also undermined global recognition of women’s reproductive rights. American law and policies have produced significant, if not hegemonic, influences in the world by both hindering and enhancing these rights.
Indeed, Roe itself does not necessarily promote women’s reproductive rights inside or outside the United States. The association of Roe and the privacy-right framing, as well as the concept of privacy associated with Roe, have long been under contestation. Recent studies have indicated that framing women’s right to abortion as a right of privacy was not the only option available to the Court and feminists at that time. In fact these works have argued that the meanings of Roe have been constantly shaped and reshaped by the courts, activists, scholars, and the public. Linda Greenhouse and Reva Siegel have revealed the significant diversity attributable to voices on both sides of the abortion debate before Roe. In addition a group of constitutional scholars have demonstrated alternative possibilities to the Court’s ruling. Mary Ziegler has gone further, to challenge the conventional narratives of Roe, arguing that the popular interpretation of Roe differed radically from the text of the original decision by shifting the focus from the rights of physicians to the rights of women. William Saletan has even argued that, since 1986, the pro-abortion rights movement has repackaged the right to abortion as a conservative idea that emphasizes state nonintervention and family privacy, turning abortion into a question of “who decides.” This adoption of privacy rhetoric has given it broader appeal to conservatives while also enabling conservatives to adopt this rhetoric for their own agenda and exploit it.
Because Roe has multiple meanings even within the United States, examining the significance of this court decision through a transnational perspective raises intriguing questions: In countries where Roe has served as a reference, how was the decision interpreted and applied? Why and how did some celebrate it to promote women’s reproductive rights, whereas others used it to restrict women’s access to abortion? What are the implications of the reception of Roc in the feminist politics of location? Kathy Davis’s study of the transnational trajectory taken by the book Our Bodies, Ourselves (OBOS) suggests that concepts associated with OBOS—autonomy, freedom—”could easily be used (albeit flexibly and strategically) to empower women in the context of their own (often very different) modernization projects.” Did Roe function as the legal version of OBOS and therefore exemplify the possibility of political solidarity among feminists across the globe, which allowed for distinct experiences of women in their own contexts? Or was Roe an illustration of the globalization of American legal feminism? If the latter, then American feminists’ conceptions of “the right to choose” and “the right of privacy” become a universal legal framing of women’s reproductive rights, thereby excluding alternative possibilities.
A comprehensive study of Roe’s transnational trajectory is beyond the scope of this study. Instead, using Taiwan as a case study, I investigate the relationship between Roe and the feminist movement to legalize abortion there from the 1970s to 1984, when abortion was legalized. I present a contextualized picture of local feminist struggles for women’s reproductive freedom as well as the role of American law and feminism in an East Asian country. The next section offers a short introduction to the history of abortion law in Taiwan and a review of the official population-control programs assisted by American sponsors and their relationship with the legislative move to legalize abortion in 1970. This is followed by an investigation into the engagement of the Taiwanese women’s movement in the legalization of abortion, as well as the adoption and influences of Roe in feminist advocacy. A concluding discussion reflects on the framing of the right to abortion as a right to choose in the context of Taiwan. This section underscores the need to develop new and contextualized abortion-rights framings so as to appropriately address and respond to localized forms of compulsory motherhood, the hegemonic belief that all women shall and want to be mothers.
Abortion As a Means of Population Control: The Official Perspective
The criminalization of abortion has a long history in Taiwan, but its form and content have varied over time. When Taiwan was a territory of the Qing Empire (1683-1895), there was no comprehensive law regulating the performance of and access to abortion. Abortion was punished only in two extreme situations: “abortion-through-assault” (abortion induced as a result of an assault on the pregnant woman) and deliberately procured abortion resulting in the mother’s death. The crime of abortion was narrowly defined for the protection of the pregnant woman rather than the fetus. It was even argued that, under Qing law, a woman “had a far greater freedom than her Western sister to dispose of the contents of her womb … because its life in its organic unity was integrated with hers and derived from her: and this understanding of abortion constituted “a far more flexible and situational, and a far less moralistic, approach to the question of abortion.” Abortion remained illegal in Taiwan under Japanese colonial rule (1895-1945), but the crime of abortion was redefined and broadened. Abortion—both by the pregnant woman herself and by a third person—was considered a crime under the modernized Japanese criminal code applied in the colony of Taiwan, and there were no grounds for legal abortion. The Japanese colonial project of modernizing criminal law therefore imposed further legal restrictions on abortion, resulting in the prohibition of abortion in all circumstances.
The legal ban on abortion survived the end of Japanese colonial rule in Taiwan. The criminal code of the Republic of China, which took effect in Taiwan in 1945, made it a criminal offense to obtain or perform an abortion unless it was necessary owing to illness of the pregnant woman or endangerment of her life. To advertise or broker for abortion also became a criminal act under this law. The legislators were concerned about protecting the life of the fetus and the pregnant woman, but the core legislative intent was to “maintain good social custom and protect the public interest.” At this point it can be argued that the modernization of abortion law in Taiwan demonstrated a normative shift from concern for the well-being of women to the interest of the nation. The extensive legal ban on abortion was, however, poorly enforced, as evidenced both by the extremely low conviction rate and by the fact that abortion was easily obtainable in private or back-street clinics and commonly practiced throughout Taiwan before its conditional legalization in 1984. Yet the gap between the law-in-books (the legal ban on abortion) and the law-inaction (the prevailing violations of the ban and tolerance of abortion) did not remove the need for legalized abortion for women. Without legal protection and governmental support illegal abortions were a costly and risky proposition for women. And despite the low number of convictions, doctors who performed abortions still did so at the risk of legal prosecution.
In a society where the deep notion of women as reproducers of the patrilineal and patriarchal family prevails, the legalization of abortion does not completely liberate women from compulsory motherhood, but it certainly provides some relief for women who need it. The legalization of abortion can also benefit the medical profession by increasing its business and reducing legal risk. Yet neither women nor doctors initiated the process that led to changes in abortion policies in Taiwan. Rather, the government’s population policy mandated these changes. Taiwan was governed under martial law, declared in 1949 when the socialist People’s Republic of China was formed on the mainland. Remaining in effect until 1987, martial law practically canceled people’s electoral rights and banned rallies and other forms of nongovernmental political activities. In this context women’s and doctors’ needs could not coalesce into political forces; they could not remove the legal ban on abortion without a supportive opportunity structure.
The fact that the population-control policy contributed to the legalization of abortion was not unique to Taiwan. In some countries governments have sponsored birth-control campaigns to control population and promote economic growth. They use women as instruments of population control rather than embracing women’s reproductive autonomy. Consequently, feminists have advocated for a shift in policy orientation from population policy to women’s rights. Population control as a Western-centered and male-dominant norm has also been under attack. The philosophy of most population organizations and international agencies rested on the assumption that rapid population growth was a Third World problem. This assumption led to the notion that through “Western management tactics, birth control services can be ‘delivered’ to Third World women in a top-down fashion.” It has also been argued that “population programs were designed, for the most part, by white, Western, elite men who were part of a tight-knit domestic epistemic community” and that “the domestic consensus on how best to tackle the ‘population explosion’ in the developing world became transnationalized through professional socialization at the international level.”
The United States was a key actor in the formulation and attempted resolution of global population “problems.” Substantial funding from US-based private organizations—the Ford Foundation, the Population Council, and the Rockefeller Foundation—and, later, from the US government—flowed into American universities to finance population studies. These funds facilitated the production of demographic knowledge that established a model of family planning as a solution to the population crisis. This knowledge was then turned into official policy, resulting in the Freedom for Food Bill in 1966 and Congress’s funding of the US Agency for International Development (AID) for population programs.
The case of Taiwan is a good illustration of a population-control program that promotes contraception and sterilization as preferred means of reproductive control. Under the influences of Malthusianism and the global population-control movement, “population explosion” or “overpopulation” was identified as a serious social and national problem by the 1960s in Taiwan. To cope with it, the government launched a series of birth-control campaigns in the name of family planning. The United States played a crucial role in these campaigns, as Taiwan was among those developing countries targeted by the US global population policy. Beginning in the early 196os, the Rockefeller Foundation and the Population Council funded large-scale survey research and sent experts from Princeton University and the University of Michigan to Taiwan, where they were to assist the Taiwan government’s struggle against “overpopulation.” Demographic knowledge of women’s reproductive attitudes and behaviors therefore emerged from the collaboration of American experts and Taiwanese scholars, with assistance from Taiwanese public officers, public health nurses, and midwives. Under these state-run family-planning programs contraception and sterilization, which were both legal at that time, were promoted and adopted as primary means for reproductive control.
It was in this context that women’s need for reproductive control converged with the state’s goal for population control. Yet the state-run family-planning program targeted women—and, indeed, a particular group of married rural women—for ends that did not necessarily benefit them. First, considering reproduction a woman’s matter and making women solely responsible for birth control, the government promoted the use of contraceptive pills as well as the IUD, especially the Lippes Loop. These technologies were not seriously reviewed for safety or side effects, and information about these matters was not released to the public. As a result of this negligence the campaign led to serious violations of women’s health. The use of condoms and male sterilization as relatively convenient and safe methods of contraception were marginalized in this governmental propaganda. By recklessly placing the responsibility for birth control on women alone, the government satisfied its own and US interests, but at the expense of women’s health and lives. Second, women’s official access to contraception was limited to married women—a limitation that denied reproductive choices to women outside of marriage. Third, state family-planning programs were also class biased. Lower-class and rural women were prioritized for free access to and reimbursement for contraception for the purpose of reducing the population of the poor. Similar phenomena took place in other countries, such as the United States, where the government promoted sterilization and even enforced it as a method of birth control to subordinate women of color.
Although these American-sponsored family-planning programs provided various means of reproductive control, abortion was not initially promoted. Taiwan experts and public officers did, however, notice the prevalence of abortion and its apparent contribution to population control. In the mid-196os the Taiwanese government began its deliberation on the legalization of abortion and, in 1969, announced “The Guiding Principles of the Population Policy of the Republic of China,” which provided that a pregnant woman or her spouse, when medically diagnosed as carriers of genetic disease, hereditary insanity, or infectious disease, could ask for an induced abortion when necessary. This government order was just an initial step toward the legalization of abortion, and the first draft of the Eugenics and Health Protection Bill (EHPB) came out in 1970, followed by heated public debates that continued for more than a decade.
The EHPB included a clause stipulating the grounds for legal abortion, which included eugenics and medical, ethical, and economic indications. However, this official proposal to legalize abortion did not consider abortion an issue of women’s reproductive freedom. The bill made it clear that the purpose of this legislation was to enforce eugenic and population policy, to protect women’s health, and to advance family happiness. Indeed, underlying the legislative and public discussions about the legalization of abortion was the idealized family that could best serve the needs of a modernizing nation. Downsizing the number of children in a family would serve to produce the ideal heterosexual family—a married couple and two kids. The question was: Shall the government endorse abortion as a means to this end?
The EHPB considered abortion as a method of reproductive control for the sake of population policy, but this legal treatment appears to have been designed by local experts without American assistance. It is true, however, that the Population Council, a US-funded nongovernmental organization (NGO) that was a major player in international population control efforts, included Taiwan in its global research project on “law and family planning.” The Population Council sponsored Ze-jian Wang, a renowned German-educated civil law professor at National Taiwan University, to conduct a study on the relationship between law and family planning. Adopting the perspective of legal behaviorism that treats the law as an instrument for regulating human behaviors and pursuing policy ends, Wang’s research report was published in 1974 and widely circulated as a reference for policymakers. The report highlighted how law could serve to promote birth control and proposed the legalization of abortion in the name of population policy, women’s health, and women’s autonomy. It also endorsed the drafting of the EHPB as the preferred approach to legalize abortion. However, Wang wrote with caution and did not wish to be identified as an advocate of abortion. He emphasized instead that family-planning programs should commit themselves to reducing the need for abortion.
Given that population concerns dominated the official view of the legalization of abortion at the time, Wang’s slight mention of women’s autonomy in his report is remarkable. It appears that Wang picked up the idea of women’s choice from philosopher Daniel Callahan, who specialized in biomedical ethics and endorsed women’s right of choice. There is no indication that Wang had acquired the idea of a woman’s right to autonomy either from Roe, decided one year before the publication of his report, from women’s reproductive-rights movements in the United States, or from any American legal experts and related US Supreme Court decisions.
To be sure, American private-sector promotion of population control in the Third World exported demographic and public health knowledge and techniques to Taiwan. However, American sponsors expressed concern for women’s health but did not advocate for women’s rights; reproductive control was promoted not as a component of women’s rights, but as a means to control the growth of population in the Third World. The introduction of the Lippes Loop and its damage to women’s health in Taiwan also indicated some American sponsors’ insensitivity to women’s health concerns. In this respect the case of Taiwan supports the criticism that population-control programs were Western centered and ignorant of local women’s rights and autonomy. However, there is no direct connection between American sponsors and the idea of abortion as a means of population control or as women’s reproductive right. Yet it would be wrong to jump to the conclusions that American law and policy had no influence on abortion-law reform in Taiwan under martial law and that rights discourses were completely absent at that time. A look into the Taiwanese women’s movement will reveal the emergence of abortion-rights discourses in the 1970s and their relationship to American law and feminism.
New Feminism and the Choice of the Right to Choose
The very first autonomous women’s movement in postwar Taiwan emerged in the early 1970s, led by Annette Hsiu-lien Lu. This movement, named “the New Feminism” (hereinafter the NF) movement (1971-79), advocated gender equality, which echoed the classic themes of liberal feminism, in the context of Chinese culture in Taiwan’s society. It was radical on the one hand, advocating the overturn of “the male-centered society,” but moderate on the other, demanding that women perform their gender roles. It asked women to “walk out of the kitchen” to join the workforce and pursue economic independence but declared that they should also preserve their difference from men. The ideal “New Women” were those who wrote with one hand and cooked with the other. Due to the lack of access to participatory law making through elections and the martial law’s ban on nongovernmental political activities, lobbying, picketing, and demonstrations were not feasible or safe options for feminist activists at that time. Mobilizing under authoritarian rule, the NF therefore adopted nonconfrontational strategies: giving public lectures, holding roundtable discussions, appearing on public media, establishing a publishing house, setting up telephone hotlines to assist battered women and to promote legal literacy, and so on. Still, their advocacy encountered numerous difficulties resulting from the authoritarian government’s hostility toward the women’s movement. The NF’S application to form a women’s NGO was denied by the government in 1973, and its activities were constantly monitored and interrupted by officials. Nevertheless, with funding from the Asia Foundation—a US-based nonprofit international organization committed to Asia’s development—and through collective feminist efforts, the NF successfully established the Pioneer Publishing House (1976-79). This house published local feminist writings and translations of Western feminist writings to promote consciousness-raising among women in Taiwan.
The NF movement emerged at a time when the legalization of abortion was being widely debated in Taiwanese society, and the movement’s engagement with this issue could not have been more timely. Among the NF’S objections to male-centered society was the instrumental use of women’s reproductive bodies to continue the paternal family line. The patrilineal rule of naming (patronymy) and the criminalization of abortion were two key legal mechanisms that the NF identified as forcing women to reproduce in the service of the patriarchal family. This criticism of patronymy was shared by American feminists, who launched a naming-reform movement in the 1970s. In contrast to Taiwan’s corresponding movement American feminists placed greater emphasis on married women’s names than on children’s surnames. The American naming-reform movement—a movement that NF leader Lu had witnessed during her studies in and travels around the United States—treated names and reproduction as separate and unrelated issues. In contrast the NF explicitly identified and blamed the patrilineal rule of naming for women’s suffering from compulsory motherhood. That is to say, the transformation of women from dependent and subordinate citizens to independent individuals had to include an embrace of reproductive autonomy, or what American feminists in the latter half of the nineteenth century had called “voluntary motherhood.”
In her masterpiece Xin fluxing zhuyi (New feminism) the NF leader Annette Hsiu-lien Lu questioned the legitimacy of patronymy, arguing that it was unjust and discriminatory for a woman to give birth to children who were to assume their father’s surname.3′ Taiwanese law mandated that children assume their father’s surname; the children traced their descent through their fathers. In this system women were reduced to being a means to an end. Lu further linked the legal patrilineal rule of naming to “son preference”: sons were preferred because the law entitled only sons to pass down family names, and as a result women were forced to produce sons to continue the patrilineal family. Identifying compulsory motherhood as a form of oppression of women, and patronymy as its linchpin, Lu advocated the abolishment of patronymy so that women would stop being a means to patriarchal ends and could start being human beings with individual personhood. This criticism echoed that of Sharon Lebell, who condemned the practice of patronymy as “recreating and reinforcing the universal perception that males are more important and therefore superior to females, more deserving, better in every way.”
Along with the abolishment of patronymy, the legalization of abortion was included in the NF’s agenda against compulsory motherhood. The NF movement joined the public discussions on abortion and demanded the legalization of abortion from a feminist perspective. Echoing official family-planning programs, they advocated reproductive control as a policy that was in the interests of women because it would relieve their burdens of mothering. NF advocates often presented themselves as supporters, rather than opponents, of governmental population policy and highlighted the beneficial contribution that legalization of abortion would make to population control. This conformity to state population policy in feminist advocacy presented an interesting difference between the NF movement and the international women’s health movement in the 1970s. The latter set women’s reproductive control in opposition to state-sponsored population policies. In Taiwan situating the advocacy of women’s reproductive freedom within the government’s policy framework may have attracted more public support and protected the NF movement from being accused of being “antigovernment.” It can therefore be understood as the strategic choice of activists who were operating under the opportunity structure of official population policy and also under martial law. This strategic choice, however, also revealed the NF’S often uncritical attitude toward eugenics and classism. Constituted mostly of middle-class women, the NF movement sometimes condemned rural and lower-class women for failing to cooperate with the official family planning program.
The most in-depth elaboration of the NF’S stance on abortion appeared in Lu’s article entitled “Who Killed Her?,” published in 1975 in the first issue of Judicial World, a law journal committed to promoting legal literacy. “Who Killed Her?” demonstrated various American influences on the NF. In this essay Lu introduces Roe v. Wade and frames women’s right to abortion as a right of choice and privacy. Lu contested the popular frame of the abortion debate—that is, the weighing of the protection of the fetus against the pregnant woman’s health. She opposed the view that the fetus is a form of life, arguing that the fetus shall be considered a part of a woman’s body and a life only after birth. Citing examples of American women’s deaths due to illegal abortions, Lu refuted the claim that abortion is an endangerment to women’s health, arguing that the criminalization of abortion—and not abortion itself—had been proven to severely endanger women’s health. She quoted American obstetrician Dr. Barbara Roberts, coordinator of the Women’s National Abortion Coalition, who argued that abortion laws murdered women, and further declared, “Antiabortion laws give fetuses rights that living people don’t enjoy. No human’s right to life includes the use of another human being’s body and life support systems against that individual.” Arguing that the right to abortion is an affirmative method for abolishing the biological inequality between men and women, Lu considered the legalization of abortion an issue of equality. She also associated the criminalization of abortion with the repression of women’s sexual freedom, arguing that the lack of legal abortion had made women “prisoners of sex.”
American and British legislation had served as references for Lu in her argument that abortion had not always been illegal in societies around the world. She specifically cited Roe and Doe to strengthen the criticism she leveled against the draft of the Eugenics and Health Protection Bill. She was particularly concerned about the bill’s stipulation that those who practiced and provided induced abortion were exempted from prosecution if induced abortion was performed for (1) eugenic reasons; (2) pregnancy by rape; (3) situations where both the sheer number of children already in a family would threaten the family’s welfare and the pregnant woman’s husband would authorize the abortion. Characterizing such legislation as class biased and accusing prolegislation lawmakers of deliberately excluding single women’s legal access to abortion, Lu argued that women should have the right to choose the most appropriate way to deal with pregnancy, and she defended her argument by quoting Roe: “the right of privacy is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” She strongly urged Taiwan to implement a rule or standard similar to the one established by Roe: abortion shall be decided by the pregnant woman and her physician during the first twelve weeks of pregnancy; abortion can be performed to protect the pregnant woman during the period between the twelfth week and the sixteenth week; after the sixteenth week of pregnancy no abortion is permissible unless it is necessary to preserve the pregnant woman’s life. Lu also explicitly echoed American feminists’ assertion that women shall be entitled to both the freedom and the right to exercise control over their own bodies.
It should be noted that major Taiwan news outlets did not cover the Supreme Court’s Roe decision of 1973, so Roe was unknown to most people in Taiwan. To date evidence also suggests that no proponents of the legalization of abortion in Taiwan ever referred to Roe—or used the concepts of privacy or the right to choose as women’s rights—to support their arguments before Lu did so. For instance, Mei-hui Yang, a Taiwanese feminist who translated and edited Western feminist writings for Taiwanese newspapers in the 1970s, introduced Simone de Beauvior’s discussion of abortion in The Second Sex. Yang compared Taiwanese women’s situation with that of French women to demonstrate the similarity of women’s oppression. However, even she did not frame women’s right to abortion as a privacy right. In 1975 the Pioneer Publishing House published a collection of Chinese translations of Western feminist writings, which included a translation of Margaret Sanger’s “Birth Control: A Parent’s Question or Woman’s?” This essay appeared under a modified Chinese title meaning “Everyone’s Right to Oneself”; however, this article did not adopt the language of privacy rights. Lu was therefore a Taiwanese pioneer both in connecting the US legalization of abortion with the US feminist movement for reproductive freedom and in framing the right to abortion as a woman’s right of privacy and choice.
Lu’s interpretation of Roe in her 1975 article merits a closer look. First of all, the viability doctrine receives no treatment in Lu’s article. Lu considered the fetus to be part of a woman’s body and to be a human life in a legal sense only after birth; she also discussed the unfortunate lives of unwanted children. However, her article neither mentions nor advocates the adoption of the viability doctrine. The article even characterizes as superstition the belief that a fetus has a life and argues that more attention should be given to those who are alive than to those who are not yet born. Second, Lu does not discuss the balancing of women’s right of privacy and state interests in protecting potential human life as well as pregnant women’s health (two issues emphasized by the US Supreme Court in Roe). Instead Lu chooses to present Roe as a decision upholding women’s right of privacy—in particular a single woman’s right to abortion—rather than as a balancing act between state interests and women’s rights.
Third, Lu touches only lightly on the related role of and regulation of physicians addressed in Roe. In this 1973 decision the Court adopts a medicalized view of abortion and defines abortion as a decision made between a woman and her physician. Whereas some medical professionals in Taiwan began to advocate the legalization of abortion on the grounds of protecting women’s health and facilitating population control, they did not frame it as a woman’s right. Neither did they bluntly argue for physicians’ unlimited right to issue medical decisions either in support of or in opposition to a particular abortion. Whether or not Lu was alert to Roe’s affirmation of the medical profession’s power over women, she cited the Roe trimester doctrine without substantively addressing the aforementioned concern. This interpretation of Roe bears some resemblance to the American pro-abortion movement, which chose to present Roe as affirming a woman’s right to advance the movement’s feminist agenda.
Last, Lu’s article presents both the American feminist movement’s advocacy of reproductive rights and Roe as unrelated to population concerns. This is a decontextualized representation of Roe and the reproductive rights movement in the United States at the time, since, as Mary Ziegler points out, members of the population-control movement played a significant role in pre-Roe abortion reform. The advocacy of abortion as a form of population control also raised the specter of racism and eugenics and prompted resistance from African American and disability activists, among others. While Lu did state her concerns about the class bias of the Taiwanese government’s official plan for the legalization of abortion, she raised no objection to the eugenics concerns, except in mentioning that medical professionals should be able to make an accurate diagnosis of birth defects. It is unclear why Lu detached Roe from discourses of population control, but her endorsement of the legalization of abortion was framed to support official population policy in Taiwan, which explicitly embraced eugenic concerns. This stance indicated her uncritical stand toward eugenics.
To be sure, Lu’s interpretation of Roe is a selective one, whether deliberately or unintentionally so. She presents Roe as a celebration of women’s right of privacy, associated with feminist claims for reproductive autonomy. As a legal feminist trained both in Taiwan and in the United States, her selective adoption of Roe in the feminist legal mobilization for the right to abortion turned out to be a milestone move. She transformed women’s need for abortion into women’s right to abortion, adding a different and feminist voice to the debate in Taiwan. Indeed, the selection of this rhetoric of privacy and choice, which emphasized state nonintervention in private affairs, was a reasonable one, for it would be appealing to people living under an authoritarian regime that exercised extensive control over its population. The impact of this framing of a woman’s right to choose can be examined in subsequent feminist advocacy for the legalization of abortion.
After the publication of “Who Killed Her?” other NF activists in Taiwan echoed the framing of abortion as a woman’s right to choose (privacy). For instance, Chun-ping Wang, a cofounder of the Pioneer Press, argued for a woman’s right to control her own body, a right that should be her own and free of her husband’s approval. The NF movement’s ally, Hong-xi Lee, a constitutional law professor at National Taiwan University, even went a step farther: by appealing to world trends, he claimed that women should have both “freedom of the womb” and a fundamental right of reproductive freedom.
The NP’s advocacy later turned into collective action demanding the legalization of abortion in the name of a woman’s “privacy” right. Since the government was considering the possibility of legalizing abortion by amending the criminal code, its announcement of the draft amendment in 1979 attracted attention from proponents of the legalization of abortion. The grounds for legal abortion provided by the draft amendment of the criminal code were narrower than those provided by the Eugenics and Health Protection Bill. The NF activists worked with renowned lawyers, doctors, and writers; held a roundtable discussion on the legalization of abortion; and issued a press release that was printed in full in a major newspaper. Their arguments—that the lack of legal abortion made women “prisoners of sex” and that abortion should be legalized to protect women’s basic right of privacy to determine whether or not and when to become pregnant—bear striking resemblance to Lu’s arguments in “Who Killed Her?” Here the right to abortion was again declared as a right of privacy, an idea that NF feminists borrowed from Roe.
When studying at Harvard Law School during 1977 and 1978, the NF leader Lu continued her advocacy by sending to Taiwanese government officials an opinion essay that addressed the legalization of abortion and advocated women’s right of choice and privacy. Yet she suspended her studies at Harvard when the United States established a formal diplomatic relationship with the socialist People’s Republic of China in 1978. She then devoted herself both to helping safeguard Taiwan’s legal status as an independent nation in the international community and to establishing democracy in Taiwan. After her return Lu radicalized her movement’s strategy. In a roundtable discussion on the legalization of abortion held after the press release in 1979, Lu again cited Roe as a way to put forward the privacy argument within the context of Taiwan and specifically suggested that the movement adopt collective action capable of mobilizing women so as to influence Taiwanese legislators’ stance on the legalization of abortion. Yet this was a proposal that Lu was unable to put into practice. As she became more and more involved to the democratization movement that endeavored to lift martial law and overthrow the authoritarian government, Lu engaged in an illegal protest in 1979 and was imprisoned for doing so. The prosecution of Lu and other anti-Kuomintang political activists had such a chilling effect that it silenced previously provocative feminists. The end of the 19705 therefore marked the end of the NF movement, though not the end of the feminist advocacy of women’s right to choose. The NP borrowed this idea from Roe, and the next wave of the women’s movement would continue this task.
Strategic Lobbying and the (In)Visiblity of Women’s Rights
The abortion debate continued into the early 1980s. In 1982 the Administration Yuan sent its final draft of the EHPB to the Legislative Yuan. This governing body was dominated by male legislators who had been in office since 1948 without having to be reelected. In this bill abortion was made legal in several cases, including when “the pregnancy or labor could either affect the mother’s psychological well-being or family life.”
This relatively broad justification for legal abortion invited strong objections from opponents both in and outside the Legislative Yuan, who argued that the decriminalization of abortion would undermine the protection of life and sexual morality. In the same year Yuan-jen Lee, the pioneering feminist who had succeeded Lu and assumed the leadership of Taiwan’s women’s movement, worked with other feminists to establish the Awakening Magazine Publishing House (now the Awakening Foundation, hereafter the Awakening), a leading force in Taiwan’s feminist community.
Probably due to the influence of the NF movement, the abortion debates in the early 198os placed a greater emphasis on rights than had the abortion debates in the 1970s. This greater emphasis usually rested on references to the rights of fetuses and the rights of women. However, population-policy-based framing was still dominant. At that time both opponents and proponents of the legalization of abortion frequently referred to American legislation—as well as to legislation in Japan, Germany, Britain, Austria, and so on—in support of their respective arguments. But these references to foreign legislation were mostly used to frame a policy-based argument to endorse or oppose the government’s population policy, not to argue for women’s rights. Among these American legislation and policies drew the most polarized attention.
By the early 1980s, and probably due to the NF advocacy, Roe had gained more visibility in Taiwan, although some Taiwanese abortion commentators still remarked on US abortion regulations by describing state legislation while making no mention of Roe. Taiwanese opponents of abortion frequently referred to the “loose sex culture” in American society, which was fostered by the availability of abortions and which in turn encouraged abortions. Many of the same opponents, to support their arguments against the legalization of abortion in Taiwan, invoked with great praise the Reagan administration’s anti-abortion efforts. Yu Gui, a conservative law professor, specifically targeted Roe in his comment on the EHPB. He described the American people’s considerable opposition to this precedent. He also raised objections to the viability doctrine on the grounds that society should protect the life of the fetus both before and after viability. From the perspective of these conservative Taiwanese critics the legalization of abortion had corrupted American society, setting an undesired precedent for Taiwan. It was the Reagan administration that sought to counter this degradation of American society and that ought to serve as a model for Taiwan. Moreover, to strengthen their arguments, some legislators who opposed the legalization of abortion in Taiwan cited the opinions of American opponents of abortion. An American female student in Taiwan named Ms. Lancaller, for instance, wrote to the president of the Legislative Yuan to voice her opposition to the legalization of abortion. She argued that Taiwan should not follow the bad American example. Her letter was printed in the Lifayuan gongbao (Legislative Yuan gazette) and cited by legislators who sought support for their opposition to the legalization of abortion.
In contrast some Taiwanese advocates of the legalization of abortion in the early 198os considered Roe an American precedent that could strengthen their justification for abortion being a right. For instance, Qing Yuo, an attorney with a PhD in law from Heidelberg University in Germany, considered Roe a precedent that gave more weight to women’s rights of privacy and freedom than to the rights of the fetus and suggested that abortion be permitted within the first three months of pregnancy on the basis of women’s right of privacy alone. There were also proponents of the legalization of abortion, in particular feminists, who endorsed the Roe doctrine without mentioning Roe. In the year that the Awakening was established, feminists responded to the Legislative Yuan’s deliberation on the EHPB by raising concerns about unwed mothers and urging the adoption of timeframe legislation to legalize abortion in the first three months of pregnancy so as to protect women’s right of autonomy. Arguing that the legalization of abortion could prevent women from being “prisoners of sex” and protect women’s right to bodily autonomy, these feminists inherited and embraced the ideas advocated by the NF in the 1970s. The concept of privacy and choice, which established limits on state intervention, remained appealing, perhaps even more so than in the 1970s. At the time the authoritarian regime remained in power, but contestation from the democratization movement was growing stronger. This opposition would eventually result in the lifting of martial law in 1987.
In 1984 the legislation of the EHPB was in its final stage. At this critical conjuncture feminists adopted various means to push for the legalization of abortion. A moderate move was made by Lu, who had just received parole owing to sickness and to the intercession of international human-rights efforts in the very same year. She published a short article in Funu xinzhi zazhi (Awakening magazine), in which she adopted the viability doctrine and the trimester-based balancing of women’s rights with the rights of the fetus and argued that the termination of pregnancy within three months of conception is a right of women’s bodily autonomy. Making a short statement about the importance of women’s sexual freedom and about the need to prevent women from being “prisoners of sex,” Lu paid more attention to the protection of the fetus and the role of the medical profession than she had in her previous advocacy for legalization of abortion. This 1984 article, in comparison with Lu’s 1975 article, was a low-key document that placed much more emphasis on the trimester doctrine and less on women’s rights. Except for publishing this article, Lu did not call for collective action or attend protests, as she had before her incarceration. Considering the fact that she was a recently released prisoner on parole, the moderation of her argument and actions was not a surprise. Unlike Lu’s moderate advocacy for the legalization of abortion, other feminists mobilized a more confrontational collective action—namely, lobbying the Legislative Yuan, an action that became the very first feminist lobby in Taiwan’s history. Since Taiwan was still under martial law at the time, this collective action was indeed a brave one. Feminists, however, did not act without concern about political suppression. As strategic actors who had been terrified by the Taiwanese government’s suppression of the opposition and who were willing to compromise the feminist agenda so as to legalize abortion, they chose to tone down their argument.
To prepare for the lobby, the Awakening organized seven women’s associations and several individual male allies, including legislators, attorneys, and doctors, to compose a petition letter featuring the signatures of 154 women. The letter, entitled “Please Respect Women’s Opinion,” presented ten justifications for the legalization of abortion but deliberately avoided the rights discourses. This letter outlined women’s suffering resulting from illegal abortion and pregnancy by rape, discussed the harmful impacts of teenage pregnancy, and argued that the legalization of abortion was a world trend to be followed. As Yen-ling Ku has pointed out, there was no mention of “rights” in the collective petition. Instead abortion was conceptualized as a necessary approach to rescuing females who had conformed to traditional gender roles but had suffered gender-related victimization, particularly rape resulting in pregnancy of the victim and adolescent pregnancy. The petition touched a little on women’s autonomy within the first trimester but presented it more as a world trend than as a feminist claim, so as to gain public support. Moreover, it emphasized the fact that many unwed mothers were lower-class women who were lacking in knowledge about sex and contraception but were by no means loose women, therefore distancing itself from the argument for the freedom of sex. In this respect Lu’s argument of women being “prisoners of sex” remained a radical one compared to this petition. Aimed toward persuading a conservative legislature, this petition was, in sum, a brave action couched in a compromising tone.
Words then became actions. Two feminists, Yuen-jen Lee and Shi-shen Shu, visited the Legislative Yuan to submit their petition letters on June 21, 1984. The next day they again visited the Legislative Yuan, this time with a group of women to sit together in the public galleries and to distribute their leaflets. This action was without precedent in Taiwan’s history. On June 25 the Legislative Yuan, as well as various public forums, received another petition letter, signed by about two hundred women from ten women’s associations. This second letter addressed the endangerment to women’s life and health from illegal abortion and urged the legislators to pass Article 9 of the official draft of the EHPB, which stipulated the conditions for legal abortion. It was somewhat different from the first letter, in that the second letter included a discussion about women’s right of privacy. The missive argued that the purpose of the criminal abortion law is to protect pregnant women’s lives. It went on to point out that because the progress of medical technology had made abortion within the first trimester not harmful to women, criminal abortion law should be restricted so as to prevent undue interventions in women’s right of privacy. In the second letter the right of privacy again became visible in the feminist advocacy for the legalization of abortion, although it was just a short statement without detailed elaboration.
These actions stemming from feminist legal mobilization were not only unprecedented but also influential. They attracted so much attention that major newspapers covered these stories in detail. One such paper, Lian he bao (The united daily news), even printed in its third edition the full text of the second petition letter, thus making feminist voices visible in the media. Feminist advocacy of women’s rights may also have had some impact on legislators, for several of them used rights-framing in their support for the legalization of abortion; they demanded “women’s right to freely decide whether or not to give birth” and “a woman’s right to control her body.”
The Eugenics and Health Protection Act was passed on June 29,1984, soon after the second feminist lobby. It legalized abortion on limited conditions, though a time frame was not mentioned in the act. Abortion was made legal in the cases of illness of the pregnant woman or endangerment of her life; fetus impairment; pregnancy resulting from rape, seduction, or incest; and cases where “the pregnancy or labor could either affect the mother’s psychological well-being or family life,” provided that she had the consent of her spouse if she was married or guardian if she was a minor. Operating in the contexts of both martial law and official population policy, feminist strategic actions toned down the demands for women’s rights and highlighted gender-conforming needs of women. These strategies won support for and even influenced the drafted legislation. However, feminist rights-framing remained visible in the public debates. It should be noted, though, that the legalization of abortion drew its legitimacy mostly from policy-based claims. As Article i of the act states, “the purpose of this law is to implement a eugenics and health policy, to improve the quality of the population, to protect the health of mother and child, and to facilitate the happiness of the family”; thus the official justification for the legalization of abortion was to enforce state policy, not to recognize women’s constitutional rights of privacy or reproductive freedom.
The legalization of abortion as such was both encouraging and disappointing for feminists, who had pressed for timeframe legislation without the requirement of spousal approval for legal abortion. It was equally encouraging and disappointing for women in Taiwan, who needed unlimited access to abortion as well as government support for this access. In 1979 a woman’s magazine conducted a survey on women’s attitudes toward gender equality and the women’s movement. According to this survey 46.5 percent of interviewees considered abortion a woman’s unconditional right, and only i percent disapproved of abortion under any circumstances. In addition 86.5 percent endorsed the legalization of abortion, and 76.5 percent thought that a woman could decide alone whether or not to have an abortion. Moreover, 78 percent of all interviewees thought that the government should subsidize abortion for low-income women, and 97 percent thought that the government should provide information on abortion. This survey demonstrated women’s overwhelming support for the legalization of abortion—support that was confirmed in a large-scale survey of women aged fifteen to forty-nine conducted by population policy researchers in 1984, which indicated that 7o.4 percent of all interviewees endorsed the legalization of abortion. What is more, the 1979 survey demonstrated support for the idea of autonomy—that is, the right to abortion as a woman’s right to determine whether or not to have children, a decision that was solely hers and did not require a doctor’s or husband’s approval. It also showed that women demanded governmental action to provide access and information. Apparently, government intervention was disfavored when it punished women for having an abortion but welcomed when the government assisted women in making reproductive choices and provided multiple options for them to choose among. Yet the law, which remains effective to date, does not require the government to guarantee women equal access to abortion, and it even makes it a requirement that a married woman obtain her husband’s approval in order to have an abortion. Besides, the abortion clauses in the criminal code remain intact, which serves to justify the state’s negative intervention in women’s reproductive practices. The battle for legal protection of women’s right to abortion, therefore, remains unfinished business for feminists in Taiwan.
Conclusion: Roe in Retrospect and Prospect
After Taiwan’s passage of the Eugenics and Health Protection Act in 1984 and the lifting of martial law in 1987, the visibility and significance of Roe v. Wade grew significantly both inside and outside Taiwan’s feminist camps. The result is a framing of the abortion debate in Taiwan as one between pro-choice and pro-life advocates. In feminist writings Roe became a symbol of American progress in women’s rights and an icon for the right to abortion. But the life of Roe in Taiwan had begun soon after the US Supreme Court decision was made, and the meanings and impacts of Roe for Taiwan have been shaped by the people who introduced it to the island and by the conditions surrounding its introduction.
As part of American law and an achievement of the American women’s movement Roe was first introduced to Taiwan to promote the legalization of abortion. American sponsors assisting in the official family-planning program did not advocate for the relevance of Roe, but Taiwanese feminists working for women’s reproductive freedom selectively framed the significance of this US Supreme Court decision. When the government prepared to legalize abortion as a means of population control and family planning, the NF movement proposed an alternative justification for the legalization of abortion and strategically combined policy framing and rights framing, and Roe served as a reference for this feminist justification. According to Mary Ziegler’s research, Roe fundamentally shaped arguments and coalitions that went on to define the abortion debate in the United States. When abortion was a population-control or public health issue framed by policy-based arguments, civil rights activists were as likely to oppose it as to support it. Yet after Roe served to highlight rights-based arguments related to privacy and choice, abortion became more of a rights issue. The history of Roe in Taiwan suggests that the American legal case not only strongly bolstered the rights-based arguments in support of the legalization of abortion but could also be used in a way that collaborated closely with policy-based arguments.
In retrospect the Taiwanese feminist choice of adopting the privacy-rights-based framing of Roe was both empowering and limiting. It was empowering in that it facilitated the NF movement’s transformation from women’s need for abortion toward women’s right to abortion. The privacy- and rights-based arguments for the legalization of abortion, advocated by Lu and other NF activists, were persuasive among Taiwanese feminists. Despite having chosen to strategically downplay rights-based arguments in 1984, these activists have continued advocating for the right to abortion as a privacy right that establishes limits on state intervention. Concepts associated with Roe—privacy and choice—played a role in Taiwan that is similar to the role of those concepts associated with Our Bodies, Ourselves in its transnational trajectory: namely, empowering women in their local struggle for liberty and equality. But the notion of women’s right to abortion is by no means a US invention. The NF activists’ criticism of the instrumental use of women’s reproductive bodies was built on the experiences of women in Taiwanese society—experiences that were found to be similar to those of American women, who also suffered from the lack of legal abortion. As the commonalities between Taiwanese women and American women were established, the rights discourses in Roe became a useful legal resource for Taiwanese feminists in arguing for the right to abortion as a women’s right. To regard the extension of Roe to states and societies outside the United States as a simple demonstration of western feminist hegemony may thus lead us to overlook the agency of local feminists. However, Taiwanese feminists’ references to American jurisprudence as an authoritative source of knowledge, as well as the fact that Roe has become a point of reference for both abortion proponents and abortion opponents, suggest that the transnational trajectory of Roe occurred within the global hierarchy of knowledge and power.
Roe has also had limiting effects on the abortion debate in Taiwan in terms of framing women’s right to abortion as a women’s right-of-privacy issue. Both Lu’s reintroduction of Roe to Taiwan in 1984 and other Taiwanese writers’ subsequent discussion of Taiwan’s legal regulation of abortion demonstrate how Roe can be and has been used to frame an abortion argument that emphasizes state nonintervention and that forces the choice between women’s rights and fetuses’ rights. In the United States some legal feminists have long raised objections to the privacy rationale. They argue that such a justification of the right to abortion privatizes the abortion decision and advocate the sex-equality approach to abortion. Catharine A. MacKinnon, for instance, has argued that the right to abortion as a privacy right has furnished women with “the control over reproduction that is controlled by ‘a man or The Man; an individual man or the doctors or the government: and has entitled men “to be let alone to oppress women one at a time.” Reva Siegel has also argued that abortion-restrictive regulation counts as state action compelling first pregnancy and then motherhood, both of which force women “to assume a role and to perform work that has long been used to subordinate them as a class.” Framing the right to abortion as an equality right, in contrast, would entitle women to freedom from compulsory motherhood, a right that requires both state nonintervention (decriminalization of abortion) and state intervention (to provide access to abortion and to protect women’s sexual autonomy). Feminists have also proposed alternatives other than the sex-equality-right approach to redress the shortcomings of Roe.
These criticisms of the privacy-right paradigm produced by Roe are illustrated in the context of Taiwan. As the above-mentioned 1979 and 1984 surveys both indicate, women in Taiwan have expressed their need for legalized, safe, and available abortion—a need that is better framed as the right of equality as a positive right than as the right of privacy as a negative right. Lu’s argument for reproductive choice did address sex freedom, but only to the extent that women shall be free to have sex without the consequences of pregnancy. It did not challenge men’s control over women’s sex or doctors’ control over women’s reproductive bodies—and neither did the feminist petitions’ argument for the protection of women’s right of privacy. The limitations of the privacy-right framing can also be examined in a culture of son preference. The NF’S arguments against the instrumental use of women’s reproductive bodies as a means to patriarchal ends also included a critique of law-based patronymy as a mechanism for son preferences, a critique that vanished in Taiwanese feminists’ arguments for the legalization of abortion in the early 198os. Framing the right to abortion as privacy and choice therefore detached this concern from Taiwanese feminist thinking about abortion, hence making invisible to these feminists the possibility that the right of choice can be a right of choosing sons with the assistance of reproductive technologies. Studies have shown that “female-selective abortion” (FSA) has prevailed in Asia, including Taiwan, since sex-selective technologies became available. When a fetus is aborted because it is female, the implication is that the female sex as a group is less valuable and less desirable than the male sex. To define abortion as an issue pivoting on choice and privacy, whose underlying concepts demand not equal access to abortion but freedom from governmental intervention, thus ignores the conditions and constraints under which women make choices and how privacy may be a cover for gender discrimination.
Since studies have demonstrated alternative ways that Roe could have been made and understood, we may wonder: If Roe had been decided differently, or if the NF movement had interpreted Roe differently and had linked abortion rights to the American ERA movement, would the feminist advocacy and abortion debate have taken a different trajectory in Taiwan? This is obviously a hypothetical question of history that has no single correct answer. But it compels us to seek rigorous answers to that question and to others: Can the right to abortion be framed differently? Is the right of choice the correct choice for Taiwanese feminists? The history of Roe and the feminist movement to legalize abortion in Taiwan therefore suggests that the right of privacy and choice might not be the legal framing that can best respond to women’s realities—realities that call for a review of the dominating influences of the privacy-right-based framing so as to develop new and contextualized abortion-rights frames that appropriately address and respond to compulsory motherhood.