It has been a rather horrific couple of weeks for women’s reproductive rights in the US. Convinced that they finally have the means to overturn both Roe vs Wade and Doe vs Bolton (1973) due to numbers on the SCOTUS, several pieces of legislation designed to undermine women’s right to abortion have been passed in several states (e.g., Ohio, Alabama, Georgia, Louisiana, and Tennessee) by Republican dominated legislatures. Knowing that these bills are unconstitutional, they are hoping to get them to the SCOTUS in the hope of being the state whose legislation led to the overturn of both Roe and Doe.
However, this is just a ramping up of an attack against women’s right to abortion since the decisions of Roe and Doe; the Guttmacher Institute has compiled a list of the ways that this right has been curtailed in various US states. With the failure of Texas’s Targeted Regulation of Abortion Providers (TRAP) law based on the pretence of protecting women’s health, the push has been towards passing legislation eliminating procedures and cutting back the time that women can have safe and legal abortions due to the supposed development of medical procedures that enable a foetus to survive outside the womb or that the foetus can feel pain or that it is a person as it has a heartbeat. The lie that anti-choice advocates were “protecting the health of women” has been easily jettisoned (they were lies anyway) towards protecting the “personhood” and hence civil rights of foetuses. Since these people do not view women as having the same rights of men in terms of their bodily autonomy, the assertion of the rights of a potential person is not a big leap.
These attacks have not only attempted to eliminate forms of safe abortion [e.g., Dilation and Evacuation (D&E) in Kansas and Kentucky] where rulings have recently been made on the bills, but also have attempted to grant civil rights to foetuses (they are viewed as dependents for tax purposes and pregnant women are entitled to appropriate financial child support in the Georgia bill) and have further limited the time for which women can have a legal abortions to 6 weeks (the so-called foetal heartbeat bills). Even pregnancies which are recognised as non-viable by the Catholic Church and hence not officially abortion (ectopic pregnancies) are questioned by the medical ignoramuses that these legislators are; Ohio Republican representative John Becker has sponsored a bill claiming contraceptives cause abortion and even better that ectopic pregnancies can be fixed by moving the embryo from the fallopian tubes and replanting them in the uterus (perhaps he has watched his mother garden and thinks that what can be done with plants works as well with women’s uteri). Ignorance of medical procedures is not just the purview of Republican state legislators, but also belongs to US Congress people and Senators and parroted by the President. The failure of the Born Alive Survivors Protection Act in the US Senate (2018) and the vetoing of a similar bill by the Wisconsin Governor provided another opportunity for Trump to exhibit his skill with lying and demonstrate his misogyny in a speech in Wisconsin where he essentially said that following the birth of a living child following a late-term abortion that doctors simply wait around to execute it. The poison of his lies, his lack of knowledge of medical procedures, and his willingness to trample on the deep grief of parents and the sadness of doctors to make a cheap and false political point is not only dangerous; it creates a view of a women (in perhaps what is the worst moment of their lives) and doctors as psychopaths moving onto the next aborted birth as easy as breathing.
Natural Rights: Life, Liberty and Pursuit of Happiness and all that Jazz
You are probably asking “what the hell are Natural Rights?” You are probably also asking yourself, what the hell does Natural Rights have to do with this discussion? If you have not succumbed to the pleasures of reading Political Philosophy (which most people haven’t), Natural Rights are in many senses a precursor to Human Rights. They are fundamental rights that human beings have that are guaranteed independent of the civil societies in which we live; these are rights that are inalienable and non-transferrable. Prior to the enlightenment these were seen as rights that existed in Scripture (so the right to life was argued to imply a right to subsistence for example and the right to steal, see Aquinas, to ensure your life); fundamental rights guaranteed to us as living beings created by God. During the Enlightenment, the basis of these rights changed in that human being could interpret them themselves due to their ability to reason. The relationship between your natural rights and your civil rights (that is do you keep these rights in civil society and how can you pursue them is a major point of debate between political philosophers; so for example, while Aquinas and the Scholastics recognise the right to subsistence as part of the right to life there was no attempt to insist upon this being enshrined in civil law; theft is a civil crime even if you were trying to ensure your right to life).
What is very interesting about Natural Rights is that in the period of the Enlightenment they were used by Locke to reject the Divine Right of Kings and to support universal suffrage, oppose slavery and the death penalty on the basis of the right of property in one’s own body which the state cannot take away from you. This is where these rights become relevant even though Locke’s right of property was not used in the American constitution and state constitutions based on it and the right of the pursuit of happiness is substituted instead. This is because the rights of life and liberty on their own are very relevant to this discussion at least theoretically (as we know theory and reality often diverge strongly).
Interestingly, the issue of Natural Rights has been used in both the total abortion ban legislation in Alabama and Georgia (the Georgia legislation speaks of fundamental rights, but is along the same lines) and recently by the Kansas Supreme Court in blocking the state legislation which banned the use of the D&E procedure in second trimester abortions.
Going and reading legislation is interesting as understanding how these arguments are formed which eliminate our rights are important (and I am obviously a masochist but if you are taking away my rights, I want to know how you are doing it), so I went to look at the legislation from both Alabama (companion bills in the Senate and House) and Georgia. Both states abortion bans cite the right to life guaranteed in the Constitution; what they try to do is extend the right to life and due process to cover foetuses so as to grant civil rights to potential human beings while undermining the civil rights of living members of our society, women.
From the Georgia bill, the issue allowing this extension is one of advancing medical science:
“In the founding of the United States of America, the State of Georgia and the several states affirmed that: "We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness – that to secure these Rights, Governments are instituted among men;"
To protect the fundamental rights of all persons, and specifically to protect the fundamental rights of particular classes of persons who had not previously been recognized under law, the 14th Amendment to the United States Constitution was ratified, providing that, "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws";
Modern medical science, not available decades ago, demonstrates that unborn children are a class of living, distinct persons and more expansive state recognition of unborn children as persons did not exist when Planned Parenthood v. Casey (1992) and Roe v. Wade (1973) established abortion related precedents;
The State of Georgia, applying reasoned judgment to the full body of modern medical science, recognizes the benefits of providing full legal recognition to an unborn child above the minimum requirements of federal law;
Article I, Section I, Paragraphs I and II of the Constitution of the State of Georgia affirm that "[n]o person shall be deprived of life, liberty, or property except by due process of law"; and that "[p]rotection to person and property is the paramount duty of government and shall be impartial and complete. No person shall be denied the equal protection of the laws";
It shall be the policy of the State of Georgia to recognize unborn children as natural persons.”
Alabama’s bill also is based on the advances in medical science, but has to add something even more ridiculous to the discussion (just because it is Alabama); essentially comparing abortion to genocides and crimes against humanity:
“In the United States Declaration of Independence, the principle of natural law that "all men are created equal" was articulated. The self-evident truth found in natural law, that all human beings are equal from creation, was at least one of the bases for the anti-slavery movement, the women's suffrage movement, the Nuremberg war crimes trials, and the American civil rights movement. If those 4 movements had not been able to appeal to the truth of universal human equality, they could not have been successful.
Abortion advocates speak to women's rights, but they ignore the unborn child, while medical science has increasingly recognized the humanity of the unborn child.
Recent medical advances prove a baby's heart 10 starts to beat at around six weeks. At about eight weeks, the heartbeat can be heard through an ultrasound examination.
A fetal Doppler can detect a fetal heartbeat as early as 10 weeks.
Ultrasound imaging shows the developing child in 15 utero. As early as six weeks after fertilization, fetal photography shows the clear development of a human being. The Alabama Department of Public Health publication "Did You Know . . ." demonstrates through actual pictures at two-week intervals throughout the entire pregnancy the clear images of a developing human being.
It is estimated that 6,000,000 Jewish people were murdered in German concentration camps during World War II; 3,000,000 people were executed by Joseph Stalin's regime in Soviet gulags; 2,500,000 people were murdered during the Chinese "Great Leap Forward" in 1958; 1,500,000 to 3,000,000 people were murdered by the Khmer Rouge in Cambodia during the 1970s; and approximately 1,000,000 people were murdered during the Rwandan genocide in 1994. All of these are widely acknowledged to have been crimes against humanity. By comparison, more than 50 million babies have been aborted in 5 the United States since the Roe decision in 1973, more than three times the number who were killed in German death camps, Chinese purges, Stalin's gulags, Cambodian killing fields, and the Rwandan genocide combined.”
The comparison of abortion to crimes against humanity and genocide is beyond offensive; one of the additional issues around this is that this is also a violation of religious freedom substituting Christian beliefs for the beliefs of other religious groups and atheists. The rights of women as living members of society are recognised in other religions and among those that do not believe in religion. Using the Holocaust and other genocides and crimes against humanity and comparing the victims to aborted foetus denies the humanity of the victims of genocide and crimes against humanity by comparing them to potential human beings.
These pieces of legislation both seek to create civil rights for foetuses on the basis of developments in medical knowledge which in their view warrant a change in the law to limit the rights of the women that are pregnant with these foetuses and to advance the creation of foetal civil rights. Both laws are unconstitutional and have been justified on the basis of guaranteed fundamental natural rights, placing a ban on abortion with the appearance of a foetal heartbeat (as though that is the determinant of life and irrespective of whether that foetus can survive independently of the pregnant woman). As Mark Joseph Stern writing in Slate writes, the Georgia law not only provides for changes in tax laws, guarantees of child support, but also changes in population based on the pregnancy as it is included in census stats. It additionally updates legislation allowing for felony prosecution for murder and conspiracy to commit murder if someone assists a woman to obtain an abortion; if the woman leaves the state to obtain an abortion elsewhere, that also could fall under the conspiracy to commit a felony. Additionally, if it can be demonstrated that a woman had a miscarriage based upon her behaviour while pregnant, she could be charged with second degree murder. Both the Georgia and Alabama laws are already being challenged by the American Civil Liberties Union (ACLU); but this is a radical shift in the attack on women’s bodily autonomy and our reproductive rights. Moreover, it does not have strong support by Georgia’s voters. A boycott by the film industry is a great idea and should be extended; I would argue that a total boycott of products produced there is a great idea. The threats to jobs, profits and tax revenue will hopefully force the people of Georgia to vote those that sponsored and supported this bill out of office. I would argue that these boycotts should be done against all states that pass these foetal heartbeat bills; these should be enforced until those that passed the bills are out of office and the legislation is dead and buried.
An additional and important use of Natural Rights has come in the Supreme Court of Kansas decision in upholding the injunction against the legislation prohibiting the usage of the D&E procedure for second trimester abortions. While the Kentucky decision only addressed foetal viability against a women’s reproductive right to abortion to strike down the prohibition of the use of the D&E procedure; the Kansas decision is actually an interesting one and has the potential to be used to provide a stronger basis (that of the right of personal autonomy) for a women’s right to choose than that of the right of privacy on which Roe and Doe are based. In fact, this decision goes right to the heart of the fundamental issue of a women’s right to choose, that of their bodily autonomy.
“Section 1 of the Kansas Constitution Bill of Rights affords protection of the right of personal autonomy, which includes the ability to control one's own body, to assert bodily integrity, and to exercise self-determination. This right allows a woman to make her own decisions regarding her body, health, family formation, and family life— decisions that can include whether to continue a pregnancy.
The State may only infringe upon the right to decide whether to continue a pregnancy if the State has a compelling interest and has narrowly tailored its actions to that interest.
When common-law terms are used in the Kansas Constitution Bill of Rights, courts should look to common-law definitions for their meaning.
The recognition of inalienable natural rights in section 1 of the Kansas Constitution Bill of Rights is intended for all Kansans, including pregnant women.
The Kansas Constitution does not begin with an enumeration of the powers of government; it instead begins with a Bill of Rights for all Kansans, which in turn begins with a statement of inalienable natural rights, among which are life, liberty, and the pursuit of happiness. By this ordering, demonstrating the supremacy placed on the rights of individuals, preservation of these natural rights is given precedence over the establishment of government (http://www.kscourts.org/Cases-and-Opinions/opinions/SupCt/2019/20190426/114153.pdf).”
Whether this decision can be used against other pieces of legislation restricting women’s reproductive rights is a decision for constitutional lawyers (which I am not) fighting the various cases and whether it is applicable depends of course on the wording and interpretation of the various state constitutions as well as the US constitution. But it gives food for thought: essentially, does life, liberty and pursuit of happiness with the right of property in one’s own body (a corollary to right to life and liberty and an essential point of the Bourgeois Democratic right to universal suffrage and opposition to slavery advocated by Locke in The Two Treatises of Government and a fundamental point in Tom Paine’s Common Sense as well as underlying the Bill of Rights of the American Constitution) only apply to men or does it apply to women as well? Moreover, if women do have the right to bodily autonomy, at what point and under what circumstances does the state have a compelling interest to interfere in that right?
On the Dehumanisation of Women
Yesterday I read something which I have been expecting for a while. In his zeal to protect foetuses, the Republican Speaker of the House in Florida, Jose Oliva, finally expressed his actual view of women. In an interview with CBS, Oliva referred to pregnant women as “host bodies” for foetuses five times in the interview; here is an example of this usage:
“Well the challenge there is that there are two lives involved. So, where I believe that we should stay out of people’s lives, I don’t believe that people’s lives should be taken. It’s a complex issue because one has to think, well there’s a host body and that host body has to have a certain amount of rights because at the end of the day it is that body that that carries this entire other body to term. But there is an additional life there (Op. cit.).”
Claiming that he was trying to use “medical terminology,” in his ignorance of such medical terminology he managed to describe foetuses by the term used for parasites in medical terminology. Moreover, he manages to actually portray pregnant women as nothing more than hosts for foetuses; he has dehumanised women to be nothing more than incubators whose function is solely physically reproductive in nature. We need to ask ourselves if that is the sole role of women in his mind, what are we if we are either too young, unable to bear children, or past the age of fertility? This description of women reduces our role to that of physical reproduction. Not even primary providers of social reproduction; we are merely defined by our ability to breed the next generation. This creep doesn’t even acknowledge our roles in caring and rearing our children and families; perhaps he is one of those people that think preparing meals, cleaning the house and washing the laundry happens on its own by magic. In making our role as physical reproducers oppressive in and of itself, he has ignored our real oppression in social reproduction. Reading this description, I could not help thinking of the Alien series of movies where humans are nothing but hosts for gestating aliens until they are able to survive on their own.
That we have come to this, the logical conclusion of a fight against women’s bodily autonomy should not be surprising. The idea of a women’s right to bodily autonomy, to have the recognition that their humanity is essential to society, that our contributions are more than breeding the next generation has been a primary component of the ongoing struggle for women’s liberation.
Unfortunately, this vicious attack on women’s reproductive rights and their bodily autonomy has had world-wide implications for women as well due to the use by the US government of a new tactic (the removal of words from resolutions that are found “threatening”; this has not only happened in the resolution of rape as a weapon of war, but also the words “climate change” were removed from an international statement on protecting the Arctic).
While the struggle over abortion rights and US government international aid has been a long-term issue; this struggle has impacted a long-term fight over the use of rape as a tool of war. By no means a new phenomenon (read the Iliad on the division of the spoils by the Greeks after the fall of Troy if you want an ancient historical discussion), finally getting this enshrined in international law under the auspices of a UN resolution with formal reporting and recording of these acts (sabotaged by the US, China, and Russia due to “administrative costs”) the measures were completely undermined by the US which insisted that the terms “reproductive and sexual health” be removed from the UN resolution as they implied that women may want to terminate unwanted pregnancies due to these rapes. Watered down to the point of meaninglessness, millennia of crimes against women, struggles for recognition of this as a war crime, become irrelevant due to the desire to remove women’s reproductive rights, their right to bodily autonomy, from the discussion. This is more than the elimination of words; it is the elimination of the recognition of women being demeaned as nothing more than objects, as property, under the pretext of protecting the result of rape, an unwanted foetus.