Justice Samuel Alito wants you to know that Dobbs v. Jackson, the U.S. Supreme Court decision overturning Roe v. Wade, concerns a “moral question.” After searching facetiously for 17th and 18th century laws affirming the right to terminate a pregnancy, he frames abortion as a question suspended in a social and medical vacuum: should women be allowed to kill? Surely one’s right to liberty stops short of that. He mocks Roe for taking into account the position of the American Medical Association and the American Public Health Association. In his rebuttal to the dissenting opinion by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, he notes they talk about “the effects of pregnancy on women” before immediately waving that away. The most he delves into biology is when he spends several paragraphs talking about “quickening,” the mediaeval term for foetal movement – ironically, nearly all of the several-hundred-year-old European “precedent” he cites in this connection refers to laws criminalising assault against women. He fumbles his way through “viability” and “trimesters” before getting frustrated and declaring that it is illegitimate for the law to pay attention to any such details.
Actually, he talks about biology in one other moment. Early in section one, he quotes the Mississippi legislature to wax lyrical about foetuses’ beating hearts, hair, fingernails, and toenails. Citing the legislature’s “factual findings,” he avers that “at 12 weeks the ‘unborn human being’ has ‘taken on “the human form” in all relevant respects.’” Abortions after 15 weeks (that would be 5% of abortions, dear reader) “‘crush and tear the unborn child’” – a “‘barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession.’” Who on earth would engage in such a practice, and why? (There is an answer.)
Alito solemnly reminds us that “the fundamental moral question that [abortion] poses is ageless” and he reassures us that while he is overturning a 49-year-old decision which rests upon even older precedent, only Roe (and the subsequent Planned Parenthood v. Casey) deserve this treatment, because only they involve “potential life.”
I once wrote an article about how this bracketing of abortion from all medical, physiological, and social context “treats abortion like candy. As though abortion is a temptation for women, some capricious, morally weak-willed act of baby-killing that they sometimes just, you know, give into.” Nowhere in Alito’s entire decision would you ever get a glimmer of why women actually seek out abortion.
I, too, will bracket a lot of that context: the existential panic that some women feel upon learning that they are pregnant. Unlike Supreme Court justices, they understand that bodily autonomy is, indeed, “implicit in the idea of ordered liberty.” Pregnancy is not a sidecar that rolls away after 40 weeks. Of note: Arkansas, Kentucky, Louisiana, Michigan, Missouri, South Dakota, Tennessee, Texas, West Virginia, and Wisconsin didn’t see fit to carve rape and incest exceptions into their abortion bans. It takes a tremendous failure of imagination about human experience to set aside the consequences of bearing one’s uncle’s child in the name of the “State’s interest in foetal life.”
Instead, let me narrow my focus to the medical and biological context the majority opinion found so irksome. Here are a few things the Supreme Court’s decision ignores when it treats abortion as a “moral question:”
That only around half of pregnancies in the U.S. are planned.
That up to a quarter of pregnancies end in “spontaneous abortion,” a.k.a. miscarriage.
That 91% of abortions are performed before the 13th week of gestation, involving something medically known as an embryo, not yet a foetus.
That gestational age, which has to do with last menstrual period and is standard in the medical profession for meaningful medical reasons (because of the difficulty of actually dating conception) is cynically used in the political sphere to make unborn babies sound older than they are. On this measure, by the time you conceive, you are already two weeks’ pregnant, if not more.
That up until even 10 weeks, you can take an ulcer medication which contracts your uterus and terminates the pregnancy much like a heavy period (many women probably experience similar miscarriages without realising it). This is the gestational age when Alito was rhapsodising about hair, fingernails, and fully-functioning organs.
That abortions happen later for one of two reasons: because of how difficult it is, geographically and financially, to access abortion sooner. Or because severe and often life-inhibiting abnormalities can only be reliably detected later. We are all still searching for the woman who just changed her mind about being pregnant in the third trimester.
When I found out via home test I was pregnant with my second son, I went to my ob-gyn practice for my first pre-natal appointment. I was about 6 weeks along according to gestational age – a favoured time marker for bans because that is when a foetal heartbeat can be detected. I knew I was pregnant because we were excited to have another child, so I tested anticipatorily. In the office, the tech spent several minutes searching unsuccessfully for the embryo before suggesting it was so early I should probably just come back in a few weeks. Finally, an OB succeeded, and when the baby was momentarily captured onscreen, it had a flicker – the so-called heartbeat. They sent me home, reminded me to take a multivitamin, and told me to come back in a month. Literally too early for maternal-foetal care, but too late to make any decisions about the pregnancy according to many jurisdictions. (That was Texas’s standard before this decision dropped; now it, along with 15 other states, is simply banning abortion altogether.)
The drive to legislate against abortion has a corrosive effect on maternal-fetal care in general.Even 20-week bans prompt doctors to order diagnostics earlier than is medically advisable, before results become reliable. In the case of a ban, they may not bother ordering the tests at all (or insurance may not cover them). A total ban will diminish the number of practicing maternal foetal specialists in the country, if in many states they would face legal prosecution for providing the unwanted but necessary abortion care that is part of the practice. A smaller number of those specialists means a shrinking pool of expertise and mentorship. Research has found that abortion restrictions “contribute to poor maternal health outcomes” including increasing maternal mortality. States “with the most restrictive abortion policies also show the weakest maternal and child health outcomes.” Closing independent abortion clinics also takes offline the other care they were providing the community. Let alone the health risks of the “illegal” abortions women nonetheless seek out.
The “sanctity of life” that is upheld by abortion opponents is unrecognisable in any other milieu. I’m not talking about the hypocrisy of opposing abortion while maintaining the death penalty or waging wars or flooding the country with guns at the behest of their manufacturers. I’m talking about the ways that in no other circumstance do we adjudicate matters of life and health and death in the way that abortion opponents do in their pristine imaginations. There is no restriction against allowing a family member to die when they could artificially be kept alive. Physicians have no obligation to provide care to people who are not their patients, say at the scene of an accident. There is no obligation to donate much-needed organs or marrow or plasma to those who need them to survive. Medical decisions, like public policy, are in no way guided by the notion that life must be preserved and prolonged and maximised at all costs, or even as some kind of priority over liberty and whatever else. That would be impossible.
A terminally ill patient will have sober conversations with their physician about the trade-offs between life-prolonging care and quality of day-to-day life. There is no such subtlety in ethical and legal norms opposing abortion. And no, this is not because they intervene on behalf of the voiceless. Take the story last week of an American woman on vacation – a babymoon, in fact – in Malta. Her waters broke, the placenta began to detach. The baby had a zero chance of survival, and her own life was in danger from potential haemorrhage and infection, but the moral certitude of Malta’s abortion ban meant that the physicians attending them in a hospital were duly obligated to steer both towards death. Voilà! “Pro-life.”
Most of the trigger laws soon coming into effect to ban abortion in light of the Supreme Court ruling allow for exceptions in the case of a threat to the life of the mother. But those exceptions do not work.
Life is miraculous. This is easy to assert even in a completely secular vein. It may explain philosophers’ abysmal track record in trying to articulate the concept.
Those who work most closely to the threshold between life and death, at either end – the obstetricians, the foetal specialists, the oncologists, the palliative care nurses – even more than the general population, believe in things like living wills instructing not to resuscitate, assisted suicide, and abortion. They are not sadists or death fetishists. Instead, they understand that the relationship between life and death is dialectical. The ventilators and feeding tubes that can save life can also forcibly prolong an undignified version of it. Opening up access to abortion and all other forms of contraception results in fewer abortions.
Alito and others want us to believe that abortion has nothing to do with health and life, that it is pure killing, and that, unlike any other ethical issue (including killing in general, which is sometimes held by this very same court to be justified), it is one which they can decide a priori. But that’s not moral reasoning, it’s stipulation. In a way, the Supreme Court’s decision has nothing to do with abortion. It’s about the smug fantasy the Justices have projected in its place – a fantasy with very real consequences.
Marianne LeNabat has a Ph.D. in Philosophy from The New School for Social Research. She is a union organiser and teaches at the CUNY School for Labor and Urban Studies.
