On The Subject of Dobbs v. Jackson

Hello, everyone! I usually try not to talk too much about politics on this blog, as it’s mostly supposed to be a fun place for me to talk about my opinions on pop culture, but today, there are just some things I have to say. Like many women in the United States, I have spent the past few months grappling with a sense of impending doom. It’s an anxiety that lives deep beneath my skin, a fear that I cannot shake, and an overpowering sense of furious helplessness that keeps me up at night. These feelings stem directly from the wave of anti-abortion rhetoric that has taken center stage in American politics, most prominently in the form of the Supreme Court case Dobbs v. Jackson. If you have no interest in reading more about abortion (and I don’t blame you), stop here. I promise to continue my regularly scheduled posts about books and movies later this week.

So, let’s get started. What is Dobbs v. Jackson? In brief, Mississippi passed a law in 2018 that bans abortions after 15 weeks, and the Jackson Woman’s Health Center sued the state for unconstitutionality, arguing that Roe v. Wade protects abortions up to the point of fetal viability, federally considered to be 24 weeks. The law was struck down by lower courts, then it made its way to the Supreme Court. Normally, I wouldn’t be worried about this. The Supreme Court in the past decade has always seemed supportive of the precedent it set with Roe, and eager to strike down any state laws that encroached on this precedent. But the court has changed. With a conservative majority of 6 to 3, it seems a lot more probable that the court may vote to uphold the Mississippi law, thus effectively overturning Roe v. Wade and leaving the matter of abortion to the states. Abortion would continue to be available in liberal states, but become virtually outlawed in conservative ones.

Dozens of anti-abortion organizations filed amicus briefs in support of Dobbs. Their arguments in favor of upholding the Mississippi law and overturning Roe v. Wade goes something like this:

  1. There is no way to measure viability. Aborting a fetus at any time may cause it harm, and viability shouldn’t matter anyway because it’s in the state interests to protect fetuses
  2. Federal abortion standards violate state rights to “protect fetal personhood”
  3. Abortion after 15 weeks poses significant harm to the mother

I have a lot of thoughts, some rants, and some frustrations. Bear with me.

The first argument is scientifically false. Viability is defined as the “potential of the fetus to survive outside the uterus after birth, natural or induced, when supported by up-to-date medicine.” Babies born at 22 weeks have a 6% chance of survival with medical intervention, and those born at 23 weeks have a 26% chance of survival. The earliest recorded birth was at 21 weeks. No fetus to date has ever been born before 21 weeks of development and survived outside of the womb, even with medical intervention. Saying that there is no such thing as viability rejects the basic scientific fact that not all stages of fetal development are “viable.” In fact, all evidence points to the contrary: the majority of babies born before viability do not survive. Banning abortions at 15 weeks on the premise of “viability”, when no fetus at this stage would be able to survive outside of the womb even with intervention, is completely illogical and scientifically unsound.

Perhaps realizing that their argument about “viability” holds no water, they move onto arguing that regardless of viability, fetuses can feel pain by 15 weeks, and that “the protection of a fetus, “including against pain,” should be considered a relevant state interest “at all stages of pregnancy.” This, too, is another claim that can be disproved by scientific evidence. Studies have shown that “the connections necessary to transmit signals from peripheral sensory nerves to the brain, as well as the brain structures necessary to process those signals, do not develop until at least 24 weeks of gestation,” meaning that the fetus is unable to feel pain at the very least until the point of viability. If a fetus cannot feel pain until the point of viability, at the very earliest, then pain prevention is an irrelevant reason to ban pre-viability abortions.

While the general consensus of the international medical community is that pre-viable fetuses can’t feel pain, we do know for a fact that women can feel pain. Pregnancy can cause debilitating health issues for women, and childbirth itself is agonizing, prolonged, and traumatic. For some strange reason, however, Mississippi seems interested only in prioritizing the medically unproven “pain” of the fetus in this equation, rather than the very real pain of the mother. In fact, the pain that women incur from pregnancy and childbirth is not mentioned once in this brief. It’s almost like women’s pain is considered completely irrelevant to this argument, as if they’re simply non-sentient walking wombs. Hmmm….

The brief also states that “the interest in protecting preborn humans… is as strong before as after viability.” They argue that “at no time are preborn humans “potential life” because (a) at all times they are living, individual human beings—as known since cell biology was discovered in the 1800s.” So now fetuses are not the “unborn,” but the “preborn,” disregarding the fact that many fetuses are never born at all due to miscarriage. Bizarre terminology aside, this gets to the real meat of the subject, i.e the idea that fetuses are considered “people” at the moment of their conception, and that the state has an interest in protecting the lives of these people, just as it does in protecting the lives of the post-born, as all living humans must now be called.

The problem, of course, lies in the fact that the “preborn” are living in the body of someone else. Until viability, at the very earliest, they depend entirely on the resources of another human’s body. They are not “individuals” because their very existence is irreparably intertwined with the existence of another. The brief argues that there is no material difference between a fetus depending on the resources of its mother’s body and an infant depending on the resources of its parents after birth, except that the material difference is that anyone can help sustain an infant after birth, while only the mother can sustain a fetus during pregnancy. That’s why viability is even an issue. If a fetus could survive on its own outside the mother’s body, then abortions would not exist, but since by definition the “preborn” occupy the body of another human, it becomes a matter of bodily autonomy. Does the unborn fetus have more of a right to autonomy than the living woman who sustains it? Well, that depends on whether you think women deserve the same bodily autonomy as men. In the United States, the government can’t compel a man to give up his body for use by another person. No law can compel a man to donate a kidney to another man on dialysis, but the state is arguing for the right to compel a woman to use her body as an incubator for a fetus. If you support the first right, but not the other, then you believe that women aren’t entitled to the same bodily autonomy as men, and are therefore not equal citizens under the law.

But what about the fetus’ bodily autonomy? Doesn’t the fetus have the same right to bodily autonomy as a woman?

No. No, it doesn’t.

There are no legal grounds to consider a fetus a person. One of the amicus briefs filed on behalf of Dobbs says that “the term “person” in the Equal Protection Clause of the Fourteenth Amendment should be interpreted to include “preborn” human beings from the moment of fertilization.” They argue that the writers of that amendment obviously intended for the “preborn” to be included under the Equal Protection Clause. This is absurd. At its most basic interpretation, The 14th Amendment was written in 1868 to fight back against the Black Codes and ensure that Black men were given equal legal protection under the law as White men. It has now been interpreted to encompass equal protection for all Americans, but to somehow infer that this amendment was also meant to protect the “unborn” is an enormous and illogical stretch with no evidence to back it up. For one, historical records show that abortions were legal until “quickening,” a.k.a when the mother felt the baby was kicking (so entirely up to her discretion), until the 1860s. Additionally, infant mortality was atrocious in the 19th century, with almost 50% of all children dying before they reached their 5th birthday, and women had a 1.5% chance of dying in childbirth for each child. It stretches logic to argue that the writers of the 14th Amendment, who lived in a world where nearly half of all infants died, and the death of infants was a natural and expected fact of life, would care even a whit about the equal protection of an unborn fetus. The only people entitled to protection under this clause were adult men! Women weren’t protected, and children certainly weren’t. To say otherwise is entirely a fiction and not based in historical record or fact.

They want to look at the “original” text, so let’s look at the original text. The 14th Amendment says “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

By their own definition, fetuses are preborn. They are not born, therefore they aren’t considered people by the very text of this amendment. If they are not legally considered people, then they are not entitled to due process or equal protection. If you need any other further reasoning that fetuses are not legally people, look no further than the American legal system. The government does not assign SSNs to the “preborn,” nor does it count the “preborn” in the census. The legal system has never considered fetuses to be people, which is why it’s incredibly disingenuous for anyone to argue that the language of the 14th amendment infers their personhood if you just “read between the lines.” It’s legally impractical and completely irrational to grant fetuses legal personhood because, as I mentioned above, fetuses die from natural miscarriages all the time! There is no such thing as the “preborn” because no fetus is guaranteed to see the light of day, and that’s even without taking abortion into consideration.

But why listen to me when you can listen to the very eloquent words of the ACLU:

No state interest described by fetal rights advocates has enough force to override a woman’s fundamental rights of privacy, bodily integrity, and self-determination. . . . Until the child is brought forth from the woman’s body, our relationship with it must be mediated by her.*

That’s right. Fetal personhood may be debated (even though there is no clear argument for its validity in the 14th Amendment), but the personhood of a living woman cannot be debated. Why, in the name of the so-called “preborn,” is it okay to revoke women’s right to due process and equal protection under the law? Why does the state have more of an interest in defending the rights of something that doesn’t even have legal personhood status, over the rights of an actual legally defined person? Again, something seems to be missing from the equation, and that’s the feelings and legal status of….you guessed it…women.

Are you starting to see the pattern yet?

Now we get to the best part – the part where Mississippi pretends that pre-viability abortion bans are actually intended to protect women. After ignoring the needs of women for most of their argument, they throw this argument in there to give the illusion that a ban on pre-viability abortions is necessary for the health and protection of women. They cry “why won’t anyone think of the women?” even though they have spent their entire argument ignoring the existence of women.

I’m not even going to pretend that there is any factual basis to Mississippi’s claim that abortions are dangerous for women. They’re not. Everyone fucking knows this. You know what’s actually dangerous for women? FUCKING CHILDBIRTH. Statistically, “risk of death associated with childbirth [is] approximately 14 times higher” than the risk of abortions. Fewer than 1 out of every 100,000 abortions lead to fatal complications, while in the U.S, 17.4 out of 100,000 women die in childbirth. According to the CDC, “700 women die each year in the United States as a result of pregnancy or delivery complications.” Basically, Mississippi is arguing that it’s safer for women to give birth than to have an abortion, when the exact opposite case is true. Make it make sense. Oh wait, it can’t make sense, because anti-abortion advocates only use this argument as a distraction to make it seem like they care about women’s health, when in reality, they don’t give a flying fuck about anyone except the “preborn.” If they did care about women’s health, they wouldn’t force them to give birth.

In reality, the aforementioned arguments are smoke screens obscuring the real argument: that women should not have the right to autonomy over their own bodies. Let’s just say the truth here. If you are anti-abortion, that means you are pro-forced birth. That means that you think it is morally acceptable for women to be legally required, and in some cases, at the risk of criminal charges, to host an unwanted fetus in their bodies for nine months, then undergo an incredibly traumatic and painful experience to expel that fetus. You are saying you care more about the needs and wants of a “potential” life then the needs and wants of a living human.

The fact that we have a womb does not negate our right to make our own reproductive choices. If a fetus implants in our wombs, they are under our bodily jurisdiction, not the jurisdiction of the state. To say otherwise is to say that a woman’s body becomes state property during pregnancy. Women are not incubators. Pregnancy must be a choice, because if it isn’t a choice, that means that the state cares more about the right of a fetus than the right of the woman carrying it. And if that’s the case, that means that women are second class citizens under the law, deprived of the same rights to reproductive control and bodily autonomy as men. If that’s what the anti-abortion faction really wants, then why don’t they come out and say it. Stop hiding behind the “pro-life” flag. That’s not their true goal. It never has been.

If the anti-abortion faction is pro-life, why do they vehemently oppose any legislative policy designed to support mothers and children after the “preborn” become “born?” They say that once abortions become illegal that they will start supporting legislation to aid mothers and infants. Why now? Women give birth every day by choice in a Roe v. Wade world, so why will the anti-abortion faction support policies that benefit mothers and children only after abortion is illegal? Roe v. Wade did nothing to change the fact that America is a completely inhospitable place to have a child. Unless you are wealthy, pregnancy, childbirth, and caring for a child is prohibitively expensive. The anti-abortion advocates haven’t shed a tear for all of the born children who ended up in overcrowded and underfunded foster homes during Roe v. Wade, nor have they spared a thought for the women who sacrifice their education and economic prospects to raise unwanted children, often alone, since the anti-abortion advocates also see no reason to ensure that fathers pay child support. They ignore the very idea that one of the primary reasons that women choose to have abortions is because they can’t afford to have a child. But now, they say, it will all be better. Now, they will magically right all the wrongs that their policies have created and make the United States into a paradise for mothers and children. Why on earth should we believe them?

As of now, The Right opposes paid medical leave, paid family leave, universal healthcare, universal pre-kindergarten, a higher minimum wage, expanded Medicaid, and expanded food stamps. They care deeply about the health of the “preborn,” but don’t make any effort to ensure that all women get free maternal healthcare, or that they are guaranteed paid maternity leave. It’s completely illogical until you realize that in their eyes, the perfect world is one where women don’t need universal healthcare or paid maternity leave because they never leave the home. They won’t support these policies because they are attempting to create a world where women are once again relegated to homemaking and child-rearing. Saddle women with an unwanted child, and their futures become dim. That’s the point. That’s always been the point. To see Roe v. Wade overturned due to the disingenuous, unscientific, and morally abhorrent arguments of the anti-abortion faction is not just a blow for women, but a blow for the country. Overturning this precedent will be indisputable proof that our nation is regressing in the face of conservatism and religious zealotry. I shudder to imagine what comes next.

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