Last time we discussed the moral and political imperative to recognize that we define the bounds of citizenship and free-personhood by how we have denied them to others. Expanding on Loving v. Virginia, we would say that the material constraints of bondage, the badges and incidents, mark the minimum contours of free-personhood. Many easy examples come to mind. Enslavers created and ripped enslaved families apart to control them by means of brutalization, but also for financial purposes—the domestic slave trade. So marriage, upbringing of one’s children, and family integrity more generally count among the fundamental rights of free-persons. We denied the enslaved education and criminalized literacy; prohibited travel; denied accommodations; wielded poverty and starvation to control millions. Each of these (and so many more) illuminates a basic right of free-personhood if we truly mean to eradicate slavery.
The same analysis works to sketch the fundamental rights of citizenship. Recall from last summer, the democratic compact rests not merely upon the recognition that no one may rule over another without their consent but equally upon our mutual recognition of our shared human dignity and decisional capacity—we each consent to be ruled by the votes of others. At bottom, there’s no meaningful distinction between personal and communal self-governance; the personal is the political—self-control means playing well with others. Denial of one’s basic and personal decisionmaking necessarily denies one’s capacity not merely for citizenship but for freedom.
The denial of enslaved women’s reproductive autonomy should be enough to rank it as a fundamental right. But let’s play it all out for those in the back.
The decision to bear a child or not ranks among the most important one can make in charting, governing you might say, their life. Yet abortion bans don’t stop abortion, and they don’t preclude a decision from being made. Rather, they take that most constitutive decision and hand it to another. The woman’s1 decision to become a parent or not becomes the State’s. Thus, the whole abortion debate is really just a debate about women’s decisional capacity.
It’s worth framing the issue amidst some practical considerations. Assuming the abortion decision can be alienated from the woman, we run immediately into several complications. To start, who if not the woman, decides? In its best democratic façade, the state legislature appropriates a pregnant body to “vindicate” the state’s interest in potential life. Yet even if a theoretical argument about the primacy of legislative deliberation to decide individual abortion petitions case by case could be made, reality quashes it. The incidence and pace of pregnancy utterly prevent such a venture. So legislatures do not weigh and decide every case of unplanned, unwanted, or complicated pregnancy; they delegate. Thus, even where States supposedly carve out civilized exceptions into their categorical abortion bans, they usually just hand the ultimate decision to some second-rate hack, usually referred to as a “district attorney.” Whether to subject one’s body to the rigors of pregnancy becomes the DA’s choice. Whether to assume the risks to health and life involved in pregnancy becomes the DA’s choice. The line between abortion and miscarriage? The line between medically necessary and not? Drawn by the DA.
This leads to a further snag. Rare as they may be, medical complications occur often enough to demand our attention. For one, we should expect legislation to grapple with such reasonably foreseeable (and well publicized) complications. For another, the supposed justice of abortion restrictions rests on the assumption that the State will reach a better decision than the woman might. Yet experience lends little assurance that legal or political actors will make better medical decisions than doctors. And one suspects, given the deeply personal balancing of medical, moral, religious, and material interests across varied circumstances within the temporal constraints of pregnancy (and of the various procedures), that even good-faith State health and safety exceptions to abortion prohibitions would prove largely inadministrable. How much risk to health and wellbeing is required to justify treatment? Presumably we want physicians to err on the side of caution. Though, in the pregnancy context, erring on the side of maternal wellbeing runs dangerously close to erring on the side of felony indictment. For on-the-spot legal guidance, must emergency rooms install special red telephones directly to the State Attorney General? Or will our good on-site medical commissars clear up murky zones? The theoretical and idealized “State’s decision” inevitably becomes the woman’s and her doctor’s decision made under threat of the State’s ex post review. Even setting aside the financial, professional, and social burdens, punishments, and rampant discriminations attendant upon childbirth, it is difficult to see how the American lust for enforcement-via-criminal-sanction would ensure rather than chill good medical decisionmaking.
Against the backdrop of women already denied treatment by scared doctors or arrested for miscarriage, we would be remiss here to ignore the bad faith with which Republicans have implemented the first-round of post-Roe abortion prohibitions. In an advisory published shortly after Dobbs, Texas Attorney General Ken Paxton promised felony charges, hundred-thousand dollar fines, and loss of medical licenses for any who might “‘knowingly perform, induce, or attempt an abortion’ except under limited circumstances, such as a life-threatening condition to the mother caused by the pregnancy.” If the gleeful punitivity alone did not bely the State’s professed dedication to sound medical decisionmaking within the exception, in December 2023, after one woman sued for declaratory relief seeking the assurance that her fatal fetal-diagnosis qualified, Paxton threatened action against any hospitals that might have permitted doctors to carry out the procedure before (days later) the Texas Supreme Court quashed a lower court injunction that would have permitted the treatment—its parsing of meaningless semantics making abundantly clear that law enforcement personnel and judges, not doctors, will determine (presumably in years later criminal proceedings) whether Texas’ vague medical-necessity standard has been satisfied. In re State, No. 23-0994 (Tex. Dec. 11, 2023). So much for the State’s supposed interest in maternal health and safety.
Suffice it to say, as a practical matter, taking such potentially complex and personal decisionmaking from the woman proves cumbersome at best. Against all this weigh a few simple considerations. Uncoerced decisionmaking usually proves best. Nothing can be done to or for the potential life that does not first impact the mother. And no one of decisional capacity stands closer to the decision, to the facts, and offers a better focal point for the informed counsel of doctors, spouses, family, friends, and even . . . gasp . . . clergy (one must wonder why so many freedom loving Catholics would substitute priestly guidance for the DA’s dictate). We can cherish the potential life, aim to provide for it, and still recognize that the careful balancing of life, health, love, career, family, and all aspects of self-determination has to be made by someone. Not just equality but pragmatism, recognizing women’s equal dignity and capacity for self-determination, holds that this decision, complex or not, must ultimately rest freely with the one most intimately connected to the entire matter: the woman herself.
Thus we arrive at the ultimate question of underlying the abortion debate: why shouldn’t the woman decide? Theological window dressing, arguments on this point have been remarkably honest in our nation’s history: because they can’t. One Dobbs amicus brief, neatly summarized the historic view:
In the nineteenth century, the physician who led the campaign to ban abortion, Dr. Horatio Storer, claimed that childbearing was the end for which married women are physiologically constituted and for which they are destined by nature . . . [D]octors further justified controlling women’s roles by asserting women’s incompetence to make their own decisions about sex and childbearing . . . anti-abortion advocated claimed that termination of pregnancy is disastrous to a woman’s mental, moral, and physical well-being. The notion that interrupting a pregnancy produced feminine hysteria followed neatly from the premise that women lack decisional capacity to choose to avoid motherhood.
Indeed, this decrepit stereotype—invoked by state legislatures right up to the present (Mississippi’s H.B. 1510 at issue in Dobbs recited a slew of “emotional[] and psychological consequences of abortion,” including depression, anxiety, and substance abuse)—fails to justify gender-specific abortion regulations on current sex-discrimination law, especially given the innumerable means of both contraception and material child-support States could (and don’t) offer to discourage abortion (many of which simply enable women to choose childbirth, free(r) of financial, professional, or other material coercions). And all that should be enough to condemn abortion restrictions to the dustbin. But this standard equal protection argument stops short of the ultimate point. Abortion restrictions hold a pregnant person categorically incapable of their most-intimate self-governance.
If this account seems too hysterical, take the Justices’ own words over the years. Opening his Roe dissent (in the accompanying Doe v. Bolton decision), Justice White demeaned a “putative mother’s” decision to obtain an abortion as motivated by “convenience, whim, or caprice.” In 1992’s Planned Parenthood v. Casey, confirming (if scaling back) Roe’s abortion right, Justices O’Connor, Kennedy, and Souter endeavored to more fully respect such choices—“the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it”—but all too often fell back into condescension:
Abortion is a unique act . . . fraught with consequences . . . for the woman who must live with the implications of her decision.
[I]t does not at all follow that the State is prohibited from taking steps to ensure that this choice is thoughtful and informed. Even in the earliest stages of pregnancy, the State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear.
Measures aimed at ensuring that a woman’s choice contemplates the consequences for the fetus do not necessarily interfere . . . .
Try to imagine the Court describing men as presumably ignorant and in need of stern guidance in their most intimate and personal decisionmaking. Matriculation into law school is a unique act, fraught with consequences social, economic, and political. The State has a compelling interest in ensuring young men grasp the philosophic debate and consequences of accepting an offer of employment from a large, international lawfirm. Measures aimed at ensuring these young men contemplate the social and economic consequences of their law practice do not necessarily interfere . . . . Justice Blackmun bluntly summarized Chief Justice Rehnquist’s accompanying view in Casey:
[F]or The Chief Justice, only women’s psychological health is a concern, and only to the extent that he assumes that every woman who decides to have an abortion does so without serious considerations of the moral implications of her decision.
In other words, States may fairly presume that women make important medical decisions without due consideration (and apparently ignorant of their doctor’s advice), unaware of the implications unless the legislature (composed primarily if not exclusively of men, mind you) steps in.
Justice Kennedy’s 2007 decision in Gonzales v. Carhart, upholding the constitutionality of the Federal Partial-Birth Abortion Ban of 2003, leaned so heavily into the decisional incompetence trope that it’s worth recounting in detail:
Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow.
In a decision so fraught with emotional consequence some doctors may prefer not to disclose precise details of the means that will be used, confining themselves to the required statement of risks the procedure entails. From one standpoint this ought not to be surprising. Any number of patients facing imminent surgical procedures would prefer not to hear all details, lest the usual anxiety preceding invasive medical procedures become the more intense. This is likely the case with the abortion procedures here in issue.
It is, however, precisely this lack of information concerning the way in which the fetus will be killed that is of legitimate concern to the State. The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.
It is a reasonable inference that a necessary effect of the regulation and the knowledge it conveys will be to encourage some women to carry the infant to full term, thus reducing the absolute number of late-term abortions.
Poor, hysterical women (Justice Ginsburg summarized in dissent). No need to ensure doctors properly explain things. Better to remove just difficult options entirely rather than to let women hurt themselves. No wonder even “free” women ranked as barely citizens for most of our history, lacking a separate legal existence from husbands, access to contract, courts, property, and above all, the franchise. One constitutionally incapable of governing her own body, after all, must be incapable of governing others.
All the old arguments in favor of abortion rights grasp truth. Restrictions rest on old offensive stereotypes and draw gender-distinctions without exhausting easy gender-neutral alternatives. Abortion rights permit women to partake equally in our national economy and public sphere. And they recognize an individual’s right to privacy and bodily autonomy. But none of those arguments adequately addresses the underlying point, or why abortion rights matter to the Constitution. At bottom, abortion restrictions in this country rest, and have always rested, on the denial of women’s equal decisional capacity. This strikes at the heart of the democratic compact. Thus abortion rights don’t merely let women partake equally in society and overcome old stereotypes, it recognizes them as capable republican constituents at all. Absent this basic recognition of equal dignity and capacity for self-governance, women’s enfranchisement, citizenship, and ultimately their freedom, rests on no more than the “majority’s” squishy good graces. If the American experience teaches anything, that’s not much to rely on.
Given how wrapped up this topic is with old-fashioned sex discrimination, I’ll simplify everything here by referring to women. Of course, all these arguments apply with equal or greater force to gender-nonconforming pregnant persons.