Abortion Bans Provide A Legal Avenue to Control Women

Hello, everyone. I’m a woman, and have been one my whole life. Up until a few months ago, I was certain that I was legally considered a “person.” Now, I’m starting to second-guess myself. My recent existential crisis (can not-people even have one of those?) stems, of course, from the overturning of Roe v. Wade, when Samuel Alito asked his Magic 8 Ball if women were considered people deserving of Constitutional protection and his Magic 8 Ball said “now that I think about it, no.”

Despite all of the anti-choice Republicans who assured me and the other 150 million women in this country that overturning Roe v. Wade had nothing to do with undermining women’s position in this country as equal citizens, I’m starting to think that they may have been lying. I’m starting to think that this whole “banning abortion to save lives” thing isn’t actually about saving lives at all, but about reminding women that they aren’t people, that their lives don’t matter, and that they will have to watch in impotent horror as their equality is stripped away from them, while men watch and do nothing.

It started with the overturning of Roe v. Wade, when six people overturned 50 years of precedent and decided that because the Constitution didn’t specifically have the word “abortion” in it, that neither the 4th amendment, which protects against unreasonable search and seizure of a person’s body, nor the 14th amendment, which mandates equal protection under the laws, apply to pregnant women and that abortion restrictions, even though they violate both of those amendments, are constitutionally allowable.

Overturning Roe v. Wade ostensibly gave the states jurisdiction over restricting abortion, but what it really gave the states was jurisdictional authority over a woman’s body. Some states took this new power as a carte-blanche to legalize sex-based discrimination, take away a woman’s right to her own bodily autonomy, and in some case, her right to life.

Take, for instance, the 2021 Texas trigger law, which bans all abortions except “to save the life of the pregnant patient or if they risk ‘substantial impairment of major bodily function.’ ” Yet when the Biden Administration said that the Emergency Medical Treatment and Active Labor Act, which “requires that anyone coming into an emergency department be stabilized or treated,” also covers giving abortions to women whose pregnancies are causing life-threatening or debilitating health complications, Texas sued the administration to stop the law from applying to their ban.

In defending his suit, Texas Attorney General Ken Paxton said that EMTALA violates the state’s “sovereign interest in the power to create and enforce a legal code.” Which begs the question: the sovereign interest to enforce a legal code to do what? To mandate that women whose pregnancies are life-threatening or debilitating must die? Why does Texas have more of an interest in protecting a legal code mandating that women die in childbirth than protecting the actual women who live in the state?

Then there was the “Freedom to Travel for Health Care Act of 2022,” which Democratic senators proposed as a way to guarantee a woman’s right to travel between states and not be prosecuted in her home state for getting an abortion in a state where it’s legal. Rather than passing this law, which simply gives women the same constitutional right as men to freely travel and receive out-of-state services, Republican senators refused to take up the bill, and actually spoke against it.

Oklahoman Senator James Lankford actually said that this argument was “not just about the right to travel and the right to health care, it’s deeper than that, it’s the right to live.” Essentially, Lankford stated that that a fetus’ right to life, a concept that is hotly debated, overrides a woman’s constitutional right to liberty. He is saying that a fetus has more rights than a woman, that a fetus is more of a person than a woman.

Note that nowhere in this question of whether women have the right to make decisions about their own bodies, of whether or not women have the right to be given life-saving medical care, of whether or not women should be allowed to travel of their own free will, is there any discussion of men. Despite being 50 percent responsible for all pregnancies, men are not having their rights restricted. Because only women can biologically get pregnant, they are faced with 100 percent of the physical burden, and 100 percent of the legal consequences. Men don’t have to worry about being denied life-saving medical care. They don’t have to worry about their constitutional freedoms being taken away. Abortion restrictions are a legal way of restricting women’s freedoms and constitutional rights without having to face any repercussions for it. These bans legalize the unequal treatment of women. They constitute blatant sex-based discrimination, and no one is doing anything about it, because legally, at least in the United States, pregnancy-based discrimination is only illegal if it happens in the workplace. Everywhere else is fair game.

Why do women lose constitutional rights as soon as they become pregnant? Because it’s a legal way for men to strip women of their personhood. Overturning Roe v. Wade gave states the right to decide that pregnant women weren’t entitled to constitutional rights, and since, in the eyes of Republican legislators, all women are just incubators in need of a pregnancy, it opens the door for legislatures to think of new ways of restricting women’s rights based on their possible future pregnancies. Now, it’s the improbable, but not impossible, suggestion of restricting pregnant women’s travels, which implies that all women would be subject to search and seizure to determine if they were pregnant in the first place. Now, it’s Republicans blocking a bill that would guarantee contraception for all Americans, regardless if whether the Supreme Court strikes down Griswold v. Connecticut. If this is now, what comes next?

Make no mistake, none of this is accidental. After the initial Roe v. Wade ruling in the 1970s, studies found that “women who were able to delay motherhood through legal access to abortion were much more likely to finish college, pursue higher degrees, spend longer in the labor force, and enter higher-paying occupations; they were much less likely to fall into poverty later in life.” Abortion gives women the chance to participate equally in society with men. Republicans don’t want that. They’ve said it themselves, implicitly through their platforms and their legislation, and explicitly in their public statements, that they want a return to a pre-Roe world where pregnancy and the burdens of motherhood prevent women from competing with men. Abortion restrictions give Republicans a legal avenue to prevent this competition and put women back at the bottom of the social hierarchy. So when people accuse women of being hysterical about the erosion of their rights, just remember that they’re doing this on purpose, and they’re not done yet.

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