Conservative Middle America and its Absurdist Abortion Laws: a Critical Assessment

In this piece, I will test the first of the two premises that underpin the wave of restrictive abortion legislative currently proliferating conservative America. The first premise is that a fetus is a person, which leads to the second premise that killing a person is wrong.  If legislation is built on premise one, it relies on the following being true: that fertilistion is the point at which a ‘person’ comes into being (in a legal sense), and this is the only morally relevant consideration across all possible circumstances that a person could seek an abortion.  So, all cases of abortion are murder and the rights of a mass of cells trump those of the person who keeps them viable, even in cases of rape or incest.

Good health and social policy should first do no harm and then preserve the freedoms of those the policy affects. Where restriction of freedoms is deemed necessary, a pragmatic approach is always best where freedoms are limited only as much as necessary to reach the desired outcome. So, any law that might mean women could be charged with a criminal offence for miscarrying a pregnancy is, by this metric, absurd.  The current onslaught of anti-abortion legislation bills passed by state governments across America will mean people can get lawfully charged with such an offence; this is the antithesis of good health and social policy.

I am gobsmacked that in 2019 old, white men are still policing women’s bodies and limiting our choices. It’s nearly one hundred years since women were confirmed as actual people in the eyes of the law. Since then, we have had to fight tooth and nail to demand each woman, and those who identify as woman, possess the full rights personhood bestows. Yet, old, male legislators still want to tinker in the ovarian affairs of others.

Image Description: Photo of white, male hands signing a legal document. 

It is an inescapable truth that nature bears down harder on women than men. None of us with the capacity to bear children were asked whether it was something we wanted; it was assigned in the genetic lottery. Given we had no choice in the development of the capacity to bear children, it is important then to protect the choices we do have, namely when, how, if, and with whom we have children.

Further, to teach young people how to make good, reproductive choices we must provide full and comprehensive, safe sex education, including all contraceptive alternatives. In addition, there needs to be a societal shift to dismantle the boys club by demanding boys and men take responsibility for any outcome of their decisions, including unwanted pregnancy. 

For a group of people so against abortion, you would think the Conservative right would support more comprehensive sex education. Because that is a way in which we will reduce the number of people seeking abortions. And it is non-intrusive (in terms of freedom-limiting), whilst simultaneously promoting an equitable distribution of the burden of pregnancy between both responsible parties.

But if you thought that, then you are wrong.

According to the fine state of Alabama (whose Governor is a woman, no less) the way to stop unwanted pregnancy is to ban abortions. A law banning abortions does only that: ban legal abortion. It doesn’t concomitantly provide additional resources or assistance for those who are having sex or to those affected as a result.

How did a law of this kind even pass in state government, given it runs counter to the landmark Supreme Court ruling, Roe v Wade (1973)? According to Roe v Wade, a woman has a constitutional right to privacy that would be violated if abortions were banned.

According to legislators, though, the intent of Alabama’s law was to conflict with Roe v Wade. There’s a growing push from Conservative politicians to overturn it. And supporters are mobilising.  If enough States can demonstrate that their laws are unconstitutional then a case can be made to the Supreme Court to show that the original ruling is wrong and should be overturned.

 Image Description: Photo of a gavel sitting on its dais on a desk. 

Alabama’s law did not occur in isolation. Georgia recently signed off on a far more restrictive abortion law, making all abortions illegal after the detection of the first fetal heartbeat, which is around six weeks. This legislation was a savvy political powerplay by Georgia’s government.  By providing women six weeks to obtain a lawful abortion, it appears they are supporting a women’s right to choose. However, the law must have been written by a man, because women only suspect pregnancy when they miss their period and pregnancy is measured from the beginning of the last menstrual cycle. Most women will not know they are pregnant until the 5-6-week mark, leaving women next to no time to access an abortion in the peach state. In practical terms, Georgia’s law is effectively a ban on abortion. 

Additionally, Kentucky, Mississippi and Ohio have each successfully restricted eligibility and access to safe and affordable abortions.

This step is a dangerous and regressive one for America.  All women will be worse off for it (especially if Roe v Wade is overturned). And, through the invocation of fetal rights, which is the basis on which all these new laws are supported, indigenous, black and poor women will be disproportionally worse off as a result.

In Western Countries, evidence shows people from lower socioeconomic areas will have children at a younger age and have more of them. They will also have some or all those children removed by the state, experience higher instances of sexual assault, and, experience chronic housing, work and income insecurity.

Image Description: Photo of the American Flag blowing in the wind. 

This law just adds an additional layer of difficulty to the already disadvantaged. Also, the children born as a result will no doubt be trapped in the poverty cycle, further demonstrating social and economic mobility and opportunity is not offered to everyone in the Land of the Free.

It is clear from what I have written above that these new, ultra-restrictive anti-abortion laws are inequitable and untethered to any sort of social program to assist those who can longer seek lawful abortions.  It is unfair to make pregnant women unintentional criminals through restrictive legislation like this. Let’s call a spade a spade here too. This law is patently racist and classist. Wealthy white woman with unwanted pregnancies will still be able to safely access one.

Let’s look at the legislation in further detail. Across all jurisdictions, the ability to effectively ban abortion services hinges on the legal status of the fetus. Let me state the legal status of a fetus is a debate that has been going on for a very long time – medical doctors, scientists, philosophers, even theologians have never reached a consensus. The lawmaker’s in Alabama have not suddenly found the answer. They simply predicate the claim on God’s providence: God sees all life as precious and tells as via His commandments to not commit murder. According to Alabama, a fetus is a person. So, aborting a fetus is equivalent to murder and therefore should be banned.

I am confident an unborn child will, at some point during the gestational journey, become a rights-holding person. What I am not confident about and what causes issues for lawmakers, is when that point is. What does God say on the matter? Well, there is no evidence in the Bible that God believed life begins when an egg is fertilised. But, if I hazard a guess, I would interpret the beginning of life as being His gifting Adam and Eve this through His breath (which is an enduring, life-giving motif throughout the bible). 

Further, legislation should never be based on religious creed and the Church and State have been necessarily separate for a very long time to ensure this.  So, if legislators are unable to appeal to God for guidance (and they should not be able to) as to the exact moment a fetus is a rights-holding person, they will just make it up.  Some jurisdictions qualify personhood as the moment the first fetal heartbeat is detected, normally around six weeks. Now, six weeks is an important milestone because it is prima facie plausible a fetus is a person at that point. However, this cutoff does something a lot more useful for the legislator. 

If at week 12, the fetus is considered a child, under the conservative fetal-rights model a woman could lawfully get an abortion the day before her scan or the day after. Now, having a date limit of when a woman can legally access abortion is a standard feature of abortion law and regulation. However, the date limit becomes important because it highlights an incompatibility of outcomes. See, the medical procedure would presumably be the same either side of the 12-week scan appointment and therefore is irrelevant to its legality. Lawfulness is determined by what day the woman chooses to terminate.  So, if you’re a lawmaker whose laws equate abortion with murder, you either have to admit some ‘murders’ are permissible or give the fetus personhood status as early as possible.  The Conservatives have gone for the latter of these options. But the result creates two new problems.

Image Description: Photo of an African woman looking down at her pregnant belly and holding it tenderly.
 

The first problem is that moderate people who might otherwise consider themselves anti-abortion still believe abortion should be permissible in cases where the pregnancy was the result of rape or incest. This permissibility derives from the unique set of circumstances the pregnant woman experienced. It provides some nuance in how a better legislator might go about reform of abortion laws. If your stance on abortion relies on the status of the fetus, then you would have to force pregnant rape victims and incest survivors to carry their attacker’s child to term or you would have to accept some murders are permissible. No guessing where Alabama landed on that one.

The second new issue when you assign personhood to a fertilised egg is you then have two rights-holders occupying one body. One of those rights-holders (the mother) has an initial duty to carry the baby to term. What happens if their rights conflict? Say the mother develops a heart condition brought on by pregnancy and her doctors advise her she may suffer a deadly heart event during labour. What happens then? Under the fetal-rights based laws, she is forced into a tragic dilemma – fulfil her duty to the other rights-holder and carry the child to term, which will likely end her life, or find a back-alley abortionist to terminate the pregnancy, which is itself risky. In choosing the latter, though, the state could lawfully charge the woman with second-degree murder.

Anti-abortionists may commiserate about the unfortunateness of the situation whilst simultaneously pointing out how rare it is. But they still must maintain that the woman is duty-bound to sacrifice her life to ensure the viability of the unborn child.  This is another way of telling women our individual lives are less valuable than the mass of cells in our wombs.  Anti-abortionists might also say ‘what a tragic situation. BUT she would still be alive today if she had not had the back-alley abortion.’ Which is no different than saying, “your ability to make decisions about your body is always trumped by the mass of cells you are carrying.”  

To close, I want to add a final nail to the coffin of fetus-rights based anti-abortion arguments. I will do so by looking at what God says about abortion in the Bible – because He does talk about them. Interestingly, what the Bible said is never what the Conservatives use.  First and foremost, abortion is not listed in the bible among crimes warranting the death penalty. Without even looking at a bible, I bet murder is on there. Further, if a pregnant woman is found guilty of committing adultery, then, through God’s will, she will miscarry that pregnancy.  And lastly, when abortion is overtly referenced in the bible it is to show the circumstance under which it is permissible: an injured woman can abort her child if she provides adequate financial compensation to her husband. 

Image Description: Photo of a person holding a Bible. A crucifix is visible at the top of the book.

The Bible does not say all abortion is wrong. Using an unborn child to exact punishment against women shows no life is worth protecting above all other considerations, including restricting the choices of women. 

By: Rachael Thurston

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