Thursday, December 02, 2021

What's In A Name? How Proponents of Compulsory Pregnancy Have Distorted Our Thinking

 by Sherry F. Colb

For a long time, I have used the phrase pro-life to refer to people who believe that the government ought to be able to force women to remain pregnant and give birth against their will. My reason for this usage was to show respect for people who in good faith disagreed with me on a difficult and painful issue. I now believe that I made a mistake. The phrase "pro-life" is now and always has been little more than propaganda that distorts the nature of the abortion debate. 

Another bit of propaganda, more subtle than "pro-life," is "unborn child" or "the unborn." Language matters, and these two phrases together contribute to an overall picture that bears almost no relation to reality. Since the oral argument on Wednesday betrayed little of the reticence that once characterized the folks who want to force women to remain pregnant against their will, I will henceforth speak in accurate terms about the stakes in the abortion contest. If accuracy results in disrespect, then I will regard the double effect as amply justified by the need to illuminate an issue that has been shrouded in doublespeak.


To say that one is pro-life is to imply that others who disagree are either not pro-life or, more succinctly, pro-death. The whole idea of some being pro-life and others being pro-death is vacuous. The question is always contextual. To be fair, pro-choice is hardly an illuminating phrase either. Everyone believes that people should be free to make some choices but not others. For instance, I don't believe people should be free to kill animals, but I do think they should be free to terminate a pregnancy. So am I pro-life or pro-death? Am I pro-choice or anti-choice? Answers to these questions will tell us nothing useful.

Part of what makes the phrase "pro-life" empty is the fact that so many of the people who take this particular position are generally indifferent to the needs of men and women whose lives are in jeopardy. But wait, you say, such people give charity. I don't care how much charity they give. They oppose laws that would require support for poor people, whether the support would enable people to eat regularly or whether it would allow people to get free medical care. And we learned recently that their great leader, who refused to lift a finger to stop the deadly insurrection on January 6th, turns out to have tested positive for COVID-19 before the presidential debate, a debate at which Trump waved a mask around but refused to wear one. I have said that anti-maskers are like men who refuse to wear condoms, but Trump managed to take the analogy to the next level. 

I would say that by overturning prohibitions on church gatherings during COVID-19, the Leonard-Leo-selected Justices showed a profound disregard for life. But perhaps "life" refers only to lives that interfere with women's bodily integrity. Given how often the "pro-life" community is anti-life, we could perhaps describe its position on abortion as primarily about controlling women and only as a "double effect" about preserving the lives of embryos. Anyone who actually cared about "life"--including the life of the typical embryo or fetus--would insist on ensuring that families had enough healthy food and access to prenatal care. But then most people who seek prenatal care want to be pregnant, and why would someone whose goal is to control women care about them?

Unborn Child/"the Unborn"

Why don't I like the phrase "the unborn"? Because, to put it bluntly, an embryo is a lot more than unborn. When people describe themselves as ABD (all but dissertation), they mean that they have done everything there is to do for a Ph.D. other than their dissertation. Though unborn is slightly more ambiguous, the strong implication is that the entity in question is everything but born. If we are talking about someone who wants to get an abortion at forty weeks gestation, then I am more than happy to refer to the target of the intended abortion as an unborn baby. The only thing that distinguishes them from a newborn baby is quite literally birth. 

Those who would force women to carry their pregnancies to term and then give birth do not, however, limit themselves to 40-week-old fetuses that just need to come out to join the community of newborns. On the contrary, the people whose religious beliefs lead them to want to force women to carry pregnancies to term and then give birth believe that a one-celled zygote is a baby who is "unborn." I am sorry, but that is just insane, and insisting that other people show respect for the view that a human cell is a baby is not all that different from the Ryan Gosling character in Lars and the Real Girl insisting that everyone act as though his sex doll is actually a live woman that he is dating. A cell is not a baby, an embryo is not a baby, and even a fetus--more formed than either a zygote or an embryo--is not a baby.

Folks who want to force women to stay pregnant and give birth against their will have a gaslighting habit of insisting that "science" tells us that a zygote or embryo is a person. I wrote about that claim here. For brevity, I will note that the question of who and what "counts" as a "human being" or "person" with rights is not a scientific question, so no scientist can tell us that a one-celled human organism qualifies as such a person. What a scientist can and will tell us is that in its early stages, an embryo lacks any of the qualities that lead us to endow a living creature with rights. It cannot feel pain. It cannot feel pleasure. It cannot feel anxiety. It cannot feel serenity. It is, in other words, something rather than someone. The fact that it has human DNA is really irrelevant. As my colleague, Professor Deborah Dinner, noted at a debate with a Federalist who supported forcing women to carry pregnancies to term and give birth, cheek cells have human DNA as well. A brain-dead body has human DNA and yet we can harvest its heart with its relatives' permission. If you want to harvest my heart, by contrast, you cannot do so, even if my relatives give you their consent. Why? Because I am a live, sentient being, unlike a brain-dead body and unlike an embryo.

The way we figure out who and what should have rights is by analogy to those who already have them. For example, some people have always believed that women were entitled to the vote, even before the Nineteenth Amendment became law. In the past, the number of people who shared this view was relatively small. The argument for suffrage included the fact that women have a lot of the same attributes that men have, and the attributes that women lack seem largely irrelevant to the entitlement to vote. Having a beard and lots of body hair, for example, really shouldn't "bear" on the franchise. On the other hand, if people had argued that sofas or glasses should be allowed to vote, then it would have been easy to refute the argument. Though such arguments are normative, they can still be powerful.

A zygote is not a person in any morally relevant sense. An embryo is not a person in any morally relevant sense. If one is religious, one might take issue with my claim, but that is a problem for religion or at least it would be if our Supreme Court had not morphed in five years into a satellite campus of Opus Dei. If your religion tells you that a cell with the potential to later become a human being is currently a person, then so much the worse for your religion. The fact that you believe it means that you will not have an abortion. It should not mean that you have anything whatsoever to say about whether I or any other woman does. 

Women make babies inside their bodies. They do not simply shelter babies that are already fully present at conception. The "unborn child" talk deliberately obscures the fact that women play an active role in reproduction and do not simply provide a half-way house for 40 weeks.

What the people on the Supreme Court who would force women to carry unwanted pregnancies to term and then give birth do not understand is that if something happens in your body, you really do have the last word on it. If I am pregnant and I don't want to be, I will find out what sort of poison I need to take to make me stop being pregnant. Maybe I will flop onto my belly or urge one of my friends to kick me in the stomach. These are things that girls and women have done in the past and will do in the future if the law and the Justices on the Supreme Court refuse to protect their right to bodily integrity (even as the same Justices can barely contain their enthusiasm for protecting the right to carry around an assault rifle--bro's before ho's).

The five or six theocrats on the Court acted differently on Wednesday. They (other than the Chief Justice) openly said the quiet part out loud. They compared a reversal of Roe v. Wade and Planned Parenthood v. Casey to Brown v. Board of Education, implying that Roe and Casey resemble Plessy v. Ferguson. How disgusting and arrogant this claim when we consider that women were here seeking the right to equality and an entitlement to the same bodily integrity that men enjoy. The irony of such Plessy invocations was only that much more gag-worthy coming out of the mouth of Samuel Alito, a proponent of voter suppression laws that help fight imaginary voter fraud and in reality keep African American votes from being counted. Had Justice Alito been on the Court in the 19th century, he would have happily joined the Plessy majority. 

Why do I sound so angry? Is the right to abortion really that important? Yes, it is. It is important not because the only way to succeed in the world is to have an abortion. It is important because the right to an abortion amounts to a recognition that women's bodies belong to them, not to men, not to zygotes and embryos, and not to a majority of the populace. Carrying a pregnancy to term is extremely intrusive and physiologically and emotionally very burdensome. The failure of the highest court in the land to acknowledge this straightforward fact in 2021 is maddening. 

It is important that those of us who feel rage at this assault on women's entitlement to bodily integrity  remain angry and do not repress the rage and become passive. We are not helpless. We can delegitimate this Court (though it is doing a fantastic job all on its own), and one day, we can look back on Wednesday's oral argument as the beginning of a countermovement. Let us tell the truth about forced pregnancy from now on. There are no "pro-life" advocates or "unborn children." There are only feminists and misogynists. Which are you? 


Joe said...

All the terminology in the abortion debate has long been rather hard to deal with. We are talking terms that make arguments. They are not neutral. Now, "Catholic" makes an argument too. Some will find "Catholics For Free Choice" an offensive label. But, over time, it was robbed of much controversy as a label.

I voiced here in the past my belief that "fetus" is one such term and it seems the default usage is not present here. My concern was that it makes one think of a more developed entity than is present for many abortions. Depending on how the term is used, maybe even as much as 90% (probably less using medical technology).

If "pro-choice" is flawed, what to use? Will the small subset of somewhat consistent "pro-life" be allowed to keep the name? (The small group, e.g., that join with those who support abortion rights to support social welfare programs and birth control). It's hard. And, it's good to see labels do matter.

[At times, I liked to use "pro-abortion rights" or some such thing. Or, "pro-reproductive liberty." Not exactly slogan worthy, maybe.]

BTW, Lars paid for one of those expensive more realistic sex dolls in that movie, not a blow-up doll. "Realistic" at least.

former student said...

"Carrying a pregnancy to term is extremely intrusive and physiologically and emotionally very burdensome."

Isn't it possible -- in a post-Roe world, at least -- to agree that this can be true and should be a very serious concern, and also agree that pregnancies should not be terminated for less than this reason, because the embryo or fetus is not morally nothing?

Isn't it also possible that the state has historically imposed lots of control over working men's bodies in lots of ways without a corresponding or equivalent burden on women's bodies -- conscription, incarceration, policing, compulsory payment of child support, etc.? (Of course, that's different, you say, because men are plainly much more violent and threatening than women.)

Why are we still talking about what is a person, whether a fetus is "unborn," whatever? If the issue at hand was whether a fetus is an "unborn child" is a "person," then the question would be whether abortion should be prohibited under the 5th and 14th Amendments, which no one is arguing. You don't want animals to be killed -- good for you -- but I doubt you argue that animals are persons. Our moral universe can handle more than two categories.

I think it is really dangerous to treat things as settled, as you (and so many others) do in your litany of crimes committed by Republican types, not just opposition to abortion, when huge percentages of the population (40% or more in many cases) hold those views. It is especially dangerous when those groups tend to divide along class and education lines, not gender/sex lines.

AndyM said...

I don't fully understand your last point in this context. You must really not like the GOP yourself, then, as they like to treat most things as settled already (whether by tradition, moral traditions, whatever...

Unknown said...

A short summary of this post might read as follows:

“While my side was winning, I had enough grace to allow my opponents to use their preferred self-description. Now that my opponents appear on the verge of decisive victory, I no longer believe that grace is a virtue that I can afford.”

Laura said...

If the Court rules against New York in the gun regulation case, will Justice Thomas stop claiming the expanding individual right to bear arms is treated like second class right?

Unknown said...

Let me ask him and get back to you

former student said...

Getting back to some of this, it seems to me that liberals still are hung up on out-of-date and sometimes just glaringly false ideas about what Trump stands for and what the actual problems of poor and working class people are in this country. For example, Prof. Cob writes:

"Part of what makes the phrase "pro-life" empty is the fact that so many of the people who take this particular position are generally indifferent to the needs of men and women whose lives are in jeopardy. But wait, you say, such people give charity. I don't care how much charity they give. They oppose laws that would require support for poor people, whether the support would enable people to eat regularly or whether it would allow people to get free medical care."

Who is Prof. Colb referring to here? Libertarians? But she then transitions immediately to talking about Trump and January 6, yet Trump -- with his opposition to free trade, immigration, and cuts to Social Security and Medicare -- is very much not a libertarian. That was the whole Trump 2016 deal, what infuriated Bush Republicans and Clinton Democrats alike.

Moreover, the idea that we need laws to "enable people to eat regularly," as though the problem afflicting the poor in this country is that they cannot *afford* food, is just laughable. The medical care issue is somewhat more open to debate, but it is mostly a herring, especially post-Medicaid expansion, but it was a bit of a herring before that, because of the widescale presence of community and safety net hospitals (who are the real "victims" of the lack of medical care) and compulsory emergency care. Medicare for all would mostly benefit young college grads in their 20s and professionals striking out on their own (e.g., lawyers, doctors, journalists, etc.) during the precarious transition. No doubt this is a group of people near and dear to Profs. Colb's heart, but it isn't "the poor."

The problems afflicting the poor and the working classes of all races are very clearly a lack of good, steady jobs -- jobs that pay more than just the cost of one person's subsistence -- and all of the spillover effects from that: depression, despair, alcohol and substance abuse, crime, decreased family formation and marriage rates, lack of engagement in work, family, and politics. William Julius Wilson documented in the 1980s and 1990s what happened when work disappeared in the prior decades due to the deliberate deindustrialization of urban areas. These changes hit working class and poor males (of all races, but in this first wave, especially Black males) especially hard. This fact is especially germane to the abortion issue, because it is a biological reality that women have an obviously productive role even in a welfare state -- as the mothers of children -- but it is far less clear what our society thinks men are going to do to feel productive in a welfare state where jobs that pay more than the going welfare rate are nearly impossible to come by. It is easy enough for professionals with two-career households to think that they can contribute to childcare, but childcare is a full-time job for one or a part-time job for two, not a full-time job for two, and that role, for obvious reasons, is going to fall in the first instance to the one who bears the child and grows up playing with dolls (still happens, duh). For renters and HUD-recipients, there isn't even much of a home repair role to play for a man. Substance abuse and its attendant problems becomes virtually inevitable.

What first hit the city centers in the 1960s and 1970s and 1980s hit the rest of the country in the 1980s, 1990s, and 2000s, and sure enough, the meth and opioid epidemics followed. Cash payouts can be good, fine, but cash without jobs can also exacerbate an existing problem, as anyone with experience with substance abuse knows, and lockdowns have dramatically exacerbated the problem of deaths of despair.

former student said...

Indeed, to the extent there are issues with access to food and medical care in this country, those have mostly been caused or dramatically exacerbated by the covid lockdowns, which shut down schools -- where kids whose parents are too depressed to provide regular meals find them -- and dramatically restricted actual access to healthcare, first through nonsensical hospital and doctor's office closures and also through hysterical terror-inducing hype, which kept so many people with treatable illnesses (heart conditions, heart attacks, strokes, high blood pressure, and especially diabetes tops among them) from seeking or maintaining care. The covid lockdown mentality, which Trump opposed, also shut down playgrounds, parks, and public pools -- pretty much all of the non-controversial public goods -- access to healthcare for children, schools, and children's recreational spaces -- were shut by Democrats, not Trump.

So I think the situation is far more complex than Prof. Colb allows.

RationalOutlook said...

It's possible to sincerely believe that it's wrong to use government to redistribute income (this possibility can be admitted even if you believe that the belief is wrong). So the people who are both pro-life and hold that belief are in a sort of a bind -- because the sincerity of their pro-life beliefs would be judged by their willingness to violate their other belief about what actions can a government legitimately take? I think the answer is for them to mostly do what's best to help people in need without any use of government, and not care about public approval.

Joe said...
This comment has been removed by the author.
Fred Raymond said...

Regarding the original post, referring to the Supreme Court as “a satellite campus of Opus Dei” nails it. That's a keeper.

Michael A Livingston said...

“An embryo is not a person in any relevant sense.” That’s incorrect in a biological and at least arguably in a moral sense. What I think is happening here is that a certain version of feminism, that requires the oppression of underclass women as caregivers and the destruction of unborn children, is collapsing. I think that accounts for the anger and for the increasingly bizarre nature of the arguments—abortion is good because some adopted children are uncomfortable, abortion is good because my father raped me 50 years ago—now being presented. I can understand that it is difficult to watch one’s mental world collapse as is happening to liberal constitutional lawyers right now. But they brought it on themselves by maintaining an unsupportable position. They need to learn the lesson and move on.

Joe said...

"To be fair, pro-choice is hardly an illuminating phrase either. Everyone believes that people should be free to make some choices but not others."

She is angry but she also noted "pro-choice" -- which matches her priors -- is a problematic label. Just to remind.

I do think one can argue the government should not redistribute income, but the formerly named pro-life side is not consistently against that.

Some are, but even then, there are other possible policies that can promote "pro-life" goals both sides agree with. Which many against abortion do not do. And, then there are a range of private things one can do, and again so many don't do it.

Thus, the cynical reactions.

(Insert how Amy Coney-Barrett and John Roberts both do walk the walk some there, adoption-wise.)

There HAS been some effort to find some common ground there. You can find some of that. But, it does seem to be a minority position too often.

Ultimately, of course, one can argue that the refusal to accept social welfare programs ("redistribute income" is so open-ended and covers a chunk of what the government does) is net not "pro-life" anyway. But, yes, one can consistently (if wrongly) argue that certain things are harmful to public well being.

Doing the best for those in need is generally a good policy.

Michael A Livingston said...

PS I think it is also a bit misleading to refer to compulsory pregnancy or similar terms. No one is compelling these people to have intercourse, let alone unprotected intercourse, in a society where birth control is readily available and widely distributed. The question is whether people can escape responsibility for their actions by engaging in a form of violence against what is at least arguably another human being. That is the relevant question.

Michael C. Dorf said...

To characterize Professor Michele Goodwin's brave revelation as Michael Livingston does here ("abortion is good because my father raped me 50 years ago") is disgusting. His other points are somewhat less offensive but no less wrong. For example, Professor Livingston thinks that whether an embryo is a person is a biological question. Maybe he thinks that whether a corporation is a person is also a biological question. Let's be clear, the "mental world" of liberal constitutional lawyers is not collapsing. Rather, the justices appointed as a consequence of the power politics of the Trump/Republican minority party are simply flexing their muscles. As for Professor Livingston's claim in his postscript that "no one is compelling these people to have intercourse," he seems unaware that the new wave of abortion restrictions do not contain exceptions for rape. See . Meanwhile, how exactly does legal abortion "require[] the oppression of underclass women as caregivers"? One might think that legal abortion means there is less demand, not more, for childcare. It is telling that Professor Livingston thinks that the provision of child care is solely the responsibility of women. In any event, Professor Livingston's contribution answers Professor Colb's concluding question pretty decisively.

Paul Scott said...

"Person" is simply not a biological term, so you are clearly wrong on that point.

On a hyper-technical reading, "embryo" does include "fetus," but that is in its technical meaning and not its common reading. The assignment of personhood to a pre-fetal embryo requires magical thinking. If you have an invisible best friend to whom you talk and seek guidance, then, well, literally anything could take on moral significance. But a barely starting to differentiate collection of cells has no moral significance to anyone that does not engage in magical thinking.

If you do engage in magical thinking then our constitution protects your right to your beliefs, no matter how insane, but you don't get to impose your insanity on others.

Like others, in your party, I am sure you think girls subjected familial rape should "relax and enjoy it" or perhaps you think, like Gregg Abbott, that it won't be a problem because you will just "eliminate rape."

In any event, the bulk of your senseless post can be summed up as "suck it, libtard. We won." That is certainly true for now. And if a troll like you wants to do a victory dance on a a normally civil legal blog, that's fine. No one should mistake the post as contributing to a meaningful discussion on a complex issue. Enjoy your chest thumping.

Sherry F. Colb said...

Thought experiment: If intercourse assumes the risk of no-exit pregnancy, does it also assume the risk of no-exit syphilis? Imagine a law that prohibited the use of antibiotics for syphilis (yes, the Tuskegee experiment comes to mind, hardly a model of a free society). Perhaps some people believe that syphilis bacteria constitute a "life." What if those people became a majority (instead of the people who believe that a single human cell constitutes a "life"). And we could take this punitive/muddled thinking and apply it to many different behaviors on which some might pass judgment. Some kinds of foods lead, for instance, to a high likelihood of heart disease. Should people who spent their lives eating, say, pot roast, broiled chicken, cholent, eggs, and other cholesterol-and-fat-containing foods forfeit their right to statins and ultimately surgical treatment? Did they "consent" to die of heart disease? Ah but such measures would penalize men as well as women, so I suppose we have our answer.

CARL D. BIRMAN said...

Dear Prof. Colb: Well, I read Mike Dorf's blog comments both pre- and post-oral argument, as well as Prof. Segall's thoughts, and I was rather non-plussed. Your blog post and preliminary analysis on the Dobbs moment in the broader context of the history of the choice movement is far more apropos, IMHO. Thank you for laying out a basic righteous feminist analysis (critique) of some of the ideological weapons used by the anti-abortion movement. Words do matter, and on an issue such as abortion, words have been weaponized on both sides for far too long. Thank you for a heartfelt and effective blog post that woke me up to the feminist or women's rights perspective on this issue, sorely lacking in the immediate onslaught of media coverage of the Dobbs oral argument this past week. Cheers, and onward, Carl D. Birman, Esq., Albany, NY.