How To Argue For Abortion Rights
In 1969, a woman named Norma McCorvey, known by the legal pseudonym “Jane Roe”, became pregnant with her third child. Living in Texas, where abortion was illegal save for instances of medical complications that could kill the mother, McCorvey had her lawyers file a lawsuit in the U.S. federal court against her local DA, Henry Wade, alleging that Texas’s abortion laws were unconstitutional. The rest was history — the Supreme Court issued a 7–2 decision holding that the Fourteenth Amendment to the United States Constitution provides a fundamental “right to privacy”, which protects a pregnant woman’s right to abortion. The landmark case resulted in the Court announcing a trimester timetable — any abortions in the first trimester could not be regulated by the government except to require that they were performed by a licensed physician. Any during the second trimester could be regulated but only for the purpose of protecting maternal health and not for protecting foetal “life”. After the third trimester, abortions could be regulated and even prohibited, except for medical exceptions (i.e. saving the life or health of the mother). Essentially, Roe v. Wade provided women with constitutional protection to receive an abortion if they so wished…that is until the 24th of June 2022.
Dobbs v. Jackson Women’s Health Organization concluded that the Constitution does not confer a right to abortion — thus overruling both Roe v. Wade and Planned Parenthood v. Casey 1992. The 2020 appointment of Justice Amy Coney Barrett by disgraced President Donald Trump (you remember right? The orange guy who had those people storm the US Capitol?) immediately after the death of feminist Justice Ruth Bader Ginsburg, led to an ideological shift of the Supreme Court. Of course, whether Democrat or Republican, the history of America, in the grand scheme of the political spectrum, has been right-leaning, but Barrett’s appointment, which secured a 6–3 majority-conservative Supreme Court, is not to be ignored.
What also ought not be ignored is the fact we knew the repeal of Roe v. Wade was coming; on May 2nd, Politico published a leaked draft majority opinion by Justice Samuel Alito that would overturn Roe and Casey by nullifying the specific privacy rights in question, eliminating federal involvement, and leaving the issue to be determined on a state-by-state basis. Conservative commentators seemed more concerned about how this draft was leaked from the Supreme Court, rather than the implications of said draft — but that is to be expected, given the ruling was in their favour.
Following the leak, I began to get into a lot of debates with people about abortion — and I think I’ve come up with a solid guide that is even more useful now that the repeal has gone ahead. I found that anti-abortion proponents often had pre-rehearsed talking points, debate tricks, and talking trees that could be (a) easily refuted or (b) circumvented entirely. Let’s take a look…
What Does The Ruling Authored By Justice Alito Actually Mean?
Conservatives seem to be fixating over the actual meaning of the overturning of Roe v. Wade — for two main reasons: to make it seem less extreme than it actually is, and so they can pick you up on a little mistake to shake your confidence, and dominate the rest of the debate. So the only way to avoid that is to understand what’s actually going on. The repeal of Roe v. Wade does not criminalise abortion…technically. As previously mentioned, Roe v. Wade provided constitutional protection for women to receive abortions. Its repeal removes that protection giving the choice on whether to criminalise abortions back to states. Of course, in practice this will mean the same thing as criminalising it — more than 20 states prepared legislation, including 13 with trigger laws (laws that were only enforceable once Roe v. Wade was repealed), to strictly regulate abortion. A total of 26 states are certain or likely to ban abortion whether through trigger laws, pre-Roe bans, 6 or 9 week bans, or near total bans — these include Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin, and Wyoming. So…basically criminalizing abortion with extra steps.
One might think that if you want an abortion and you live in any one of these states, you will have to travel to a state where abortion is allowed — which of course costs, placing an extra disincentive/blockade to getting an abortion — but in fact this patchwork of laws may lead to a criminalisation of cross state travel. Indeed, lawmakers in Missouri weighed legislation early this year that would allow individuals to sue anyone helping a patient cross-state lines for an abortion. Thankfully it was blocked in the state’s legislature, but the prominence of laws like this will only continue to rise given the Dobbs finding. These travel bans would actually be unconstitutional — specifically against the Fifth Amendment which provides freedom of movement. This will lead to further state division. Connecticut, for example, created a counter-measure: if someone travels to Connecticut to receive an abortion but is sued, the state of Connecticut will help you defend yourself. Indeed, these were the circumstances in the lead up to the Civil War. These fugitive abortion laws which allow for state overreach, sound remarkably similar to the fugitive slave act that led to state-against-state battles — one group of states want things to go there way and will attempt to extraterritorially apply state law.
If you are able to show you know that Dobbs means state rights and not federal criminalisation of abortion, the first hurdle is overcome.
Sentience
Never, and I repeat, never, allow an anti-choice interlocutor to derail the debate to a discussion of sentience — this is a trap. Not because they are right necessarily, but because the bar to which we declare sentience is such a grey area that defining it is a futile task. What is required for a thing to be considered sentient? The moment the discussion swerves into a sentience debate, the conservative commentator will begin a fun little game called ‘name the trait’. Say, for example, that you don’t think a foetus is sentient because nobody remembers what being a foetus is like, and therefore foetus’ don’t have memories, and therefore they aren’t sentient — the trait of forming memories is the bar for sentience. Your interlocutor will then say something along the lines of ‘oh so you would kill someone with dementia — a human being who can’t form memories.’ And then you are sprung in the trap. Or the ability to feel pain is a trait of sentience — well then you would kill someone with damaged nerve endings, and so on, and so on.
The truth is, we don’t know when sentience begins — the issue is underdetermined. Meaning that science is yet to reach a majority consensus — for every 10 studies arguing that sentience begins in the first trimester, you can find 10 more that say the opposite. Underdetermination is the principle that there is not enough scientific evidence to discriminate and reach a firm conclusion on a certain topic. For example, man-made climate change and global warming was for a time underdetermined — there was not enough research to prove it was or wasn’t actually happening. But as research continued, scientists had enough evidence to be fairly certain man-made climate change was a real phenomenon. Sure, you can definitely find some journals where certain scientists argue man-made climate change isn’t real, but the scientific community has generally agreed upon a majority determination that it is real because of greater evidenced yielded by research. The only reason that losers like Trump can peddle doubt in scientific proof of climate change and be believed by millions is because they marketed it via false equivalence. False equivalence is what happens when two things are presented as if they share equal validity or weight when they don’t. When you see two people debating each other over man-made climate change on TV just know that’s ridiculous, because it isn’t really one scientist versus another, its roughly 97% of scientists versus 3% that deny climate change. Of course, the media generally follows a formula of framing news as issues of debate, with two opposing sides argued by two opposing people, but this false balance inevitably happens when the actual facts overwhelmingly favour one side of a so-called debate. This is what journalistic ‘objectivity’ and fear of bias has caused.
That being said, scientists have not reached a consensus like this on the beginning of sentience because they just don’t have enough evidence to say when it starts. But anti-choice zealots will come at the debate from the false assumption that science has reached a consensus on sentience beginning with the foetus. Foetuses are sentient? Says who? Says you? Says some scientists, but then other scientists disagree with those scientist? I’m not saying a foetus isn’t sentient, because that’s underdetermined too — we don’t have enough evidence to prove a foetus isn’t sentient, the same way we can’t prove it is. Truth is I don’t know if a foetus is sentient. You know who knows? Literally nobody. Not you, not me, not scientists, not Trump or Biden — nobody knows…yet. If science does ever reach a consensus — which it may well do due to ever changing and improving research technology and scientific methods — then we’ll have to concede to whatever it determines. But that won’t make every abortion retroactively wrong, it will simply impact rulings around abortion going forward. However, this is all hypothetical — sentience is still underdetermined, and as such, should be left to personal discretion. If you consider it a gamble then fine, use your bodily autonomy to not get an abortion, but not everyone agrees with you, and they should likewise be able to use their bodily autonomy and personal discretion to get one.
Perhaps the Dobbs finding can be perfectly summarised (as all important issues ought to be) with an analogy about cake. If I don’t want cake, because I’m afraid of the implications of having cake, then that’s fine and I ought to be able to make the decision not to eat cake, as long as I don’t prevent or shame other people from having cake. Likewise, if I want cake, I should be allowed eat cake, as long as I don’t force feed other people cake, and shame them for not wanting cake. That’s what true freedom and liberty is — the freedom to do something unhindered, as long as what you are doing doesn’t negatively effect someone else. As we currently have no way of knowing whether abortion negatively impacts another living being, then it ought to be up to individual liberty. After all, that’s what the GOP is all about isn’t it? Conservatives love to harp on about freedom — but how free is your land when your state has to impose forced pregnancies on women, regulating American uteruses more than American firearms? If a woman is raped at gunpoint and becomes pregnant, the gun is the most protected party in that situation, the rapist will receive less time than the victim who aborts the forced pregnancy, and telling women they ought to just withhold sex to avoid pregnancy will only lead to more sexual violence.
Bodily Autonomy
If you can successfully avoid falling into the beartrap of sentience, then your best course of action is to hammer home the inalienable right of bodily autonomy. Men and women alike have bodily autonomy, and should be able to use said autonomy to grant informed consent for a medical procedure to be carried out on their body. As previously highlighted, the great fallacy in anti-choice rhetoric is that its proponents typically avow freedom, and yet vehemently support measures like those outlined in Dobbs which are in direct opposition to freedom. Dobbs is placing the liberty and bodily autonomy of the unborn over the freedom and bodily autonomy of the living. In the words of Methodist Pastor David Barnhart:
“The unborn” are a convenient group of people to advocate for. They never make demands of you; they are morally uncomplicated, unlike the incarcerated, addicted, or the chronically poor; they don’t resent your condescension or complain that you are not politically correct; unlike widows, they don’t ask you to question patriarchy; unlike orphans, they don’t need money, education, or childcare; unlike aliens, they don’t bring all that racial, cultural, and religious baggage that you dislike; they allow you to feel good about yourself without any work at creating or maintaining relationships; and when they are born, you can forget about them, because they cease to be unborn. You can love the unborn and advocate for them without substantially challenging your own wealth, power, or privilege, without re-imagining social structures, apologizing, or making reparations to anyone. They are, in short, the perfect people to love if you want to claim you love Jesus, but actually dislike people who breathe. Prisoners? Immigrants? The sick? The poor? Widows? Orphans? All the groups that are specifically mentioned in the Bible? They all get thrown under the bus for the unborn.
Measures like these are not pro-life — forced birth in a country without mandatory maternity leave or universal healthcare is pro-birth as there is no provisions being made for the life of the mother or the further betterment of the child. Coercing women who have ectopic pregnancies, miscarriages, stillbirths, chemical pregnancies, neonatal pregnancies, or any other life-threatening pregnancy to suffer because of a few old men and women’s opinions is simply not right, and certainly not very Christian. The GOP have whined about “Sharia Law” when they themselves are actually forcing their own religious beliefs onto Americans, blurring the boundaries between church and state. During an interview with Fox News, where he was asked whether he feels he played a role in the reversal of Roe (having appointed three conservative justices to the highest court), Trump declared “God made the decision.” What God would decide to force a child to be born without any life sustaining organs? What God would force a victim of sexual assault to give birth to her assailants seed? What God would force an 11 year old girl, who had her innocence ripped away from her by someone she should have been able to trust, to give birth? To force a victim of domestic abuse to deliver her abuser’s offspring, and remain with the monster that hits her? What kind of God would kill a woman because the egg never made it out of her fallopian tube leading to her dying from internal bleeding unless she is able to receive a termination? The answer is obvious: not a God anyone should support.
The Race Question
In one debate I had with an anti-choice advocate, they declared “the founder of planned parenthood literally stated ON PAPER that she was hoping their goal to eliminate the black population would not get out to the public.” This was something I had never heard before, but is quite a popular anti-abortion stance popularised by famed black neurosurgeon turned Republican and former presidential candidate, Ben Carson in an interview with Fox News in 2015. When asked about the Democrats’ criticism that Republicans who wanted to defund Planned Parenthood were waging a “war on women”, Carson responded:
Maybe I am not objective when it comes to Planned Parenthood, but, you know, I know who Margaret Sanger is, and I know that she believed in eugenics, and that she was not particularly enamored with black people.
And one of the reasons you find most of their clinics in black neighborhoods is so that you can find a way to control that population. I think people should go back and read about Margaret Sanger who founded this place — a woman Hillary Clinton by the way says that she admires. Look and see what many people in Nazi Germany thought about her.
Carson is right to suggest that Planned Parenthood’s founder, Margaret Sanger, believed in eugenics, but not in the way he implies. In the United States, eugenics intersected with the birth control movement in the 20s, and Sanger reportedly spoke at eugenics conferences, focusing on how birth control could facilitate “the process of weeding out the unfit [and] of preventing the birth of defectives.” In reading Sanger’s papers, it is clear she genuinely believed in the movement, but that this specifically applied to people having children they wanted (a radical idea for the time), not to ethnic cleansing a la the Nazi model. Carson’s implication that Sanger founded Planned Parenthood to control the black population is ridiculous given the movement was supported in black neighbourhoods, beginning in the 1920s when there were birth control leagues in Harlem started by African-Americans. Sanger worked closely with NAACP founder W.E.B. DuBois on the (perhaps poorly named) “Negro Project”, which she viewed as a way to get safe contraception to African-Americans. Sanger’s emphasis was on progressing race relations, writing in 1946 that “The Negro race has reached a place in its history when every possible effort should be made to have every Negro child count as a valuable contribution to the future of America […] Negro parents, like all parents, must create the next generation from strength, not from weakness; from health, not from despair.” Paternalistic? Certainly, but not avowedly racist nor coercing black women into birth control. Carson was also wrong to imply that most Planned Parenthood clinics are located in black neighbourhoods — a 2014 Guttmacher Institute (a reproductive health research centre) survey of all known abortion providers, including Planned Parenthood, found that 60% are located in majority-white neighbourhoods.
And this brings us to the very important point — anti-abortion legislation is not protective of ethnic minorities, it is quite the opposite: it specifically plays into white supremacist rhetoric. America already has a shocking 71% higher infant mortality rate than comparable OECD countries, but black women will suffer the brunt of forced pregnancy, being three times more likely than white women to die during pregnancy or as result of child birth. Contrary to Carson’s claim that anti-abortion legislation would protect black people against an allegedly eugenic scheme, as outlined in Ben Wattenberg’s 1987 work ‘The Birth Dearth’, it has to do with the white nationalist far-right conspiracy known as The Great Replacement — which suggests that white populations are being demographically and culturally replaced with non-white peoples. Wattenberg, a Presidential advisor, said as much in his work, implying that the demographic problem of America is that there are not enough white births, leading to white people losing their numerical majority. Wattenberg proceeds to posit three solutions to maintaining the white majority:
(1) Incentivise reproduction by paying women to have babies, but that would require you to pay women of all colours.
(2) Increase the number of legal immigrants allowed into the country, but the vast majority of people fleeing to America are people of colour.
(3) 60% of the foetuses aborted each year are white. If those abortions were prevented that would solve the birth dearth.
Of course, great replacement theory as an idea is blatantly absurd — white people aren’t going anywhere. But clearly enough people on the right are afraid of the fragility of whiteness that they would go to such extreme methods as the criminalization of abortion to supposedly maintain the white majority.
Third Trimester Abortion
Many anti-abortion proponents grossly overgeneralise abortion as simply those that take place in the third trimester (i.e. when the neurological development of a foetus is comparable to that of a new born infant), but the reality is that less than 1% of abortions take place within this timeframe. Most of the women who receive abortions during the third trimester actually wanted to keep their babies and deliver them to full term, but were unable to do so for a variety of medical complications (both for the mother and/or the child). The reason why these people make universalized claims is to depict all abortion as the murder of a nearly new born infant, when, in reality, most abortions take place prior to the third trimester.
Wider Implications
The implications here are that of precedent. On a national scale, as previously suggested, if the fugitive abortion acts go ahead, state-on-state conflict is likely to be ignited. This is the first time in the history of the U.S. that the Supreme Court has taken away a constitutional right. Eliminating the 5 decade long right to abortion now puts other rights protected by the 14th Amendment at risk, such as marriage equality, the right to engage in private sexual conduct, and the right to use contraception. Admittedly it isn’t all the Republicans fault — the Democrats ought to have been more proactive in the enshrining of safeguards for abortion. Had Obama, and then sleepy Joe actually acted on their promises to expand the Supreme Court under the Judiciary Act, 4 seats would have been added, taking the size of the court from 9 to 13 justices to match the number of circuit courts. Perhaps then the outcome would have been different. There is also the precedent this sets internationally — one of the world’s major superpowers has now removed its protections for abortion. For British readers, do not scoff at America. The UK is literally removing the Human Rights Act in a few weeks, at which point our rights will be up for grabs just like theirs. And to any other readers, count yourself lucky that it isn’t you, but also remain cautious that this could potentially happen to you at any time.
There isn’t really a happy way to conclude this article, other than to hope that some reversal can come about, and that the people who need this treatment are able to receive it safely and via a medical professional — after all, the criminalization of abortion does not reduce abortions, it just makes it more clandestine and unsafe. Below will be linked a multitude of abortion resources as well as donation sites for abortion funds:
