Monday, May 23, 2022

Alito, Syphilis, and Unwanted Pregnancy

by Sherry F. Colb

I want to draw an analogy here. The analogy may be offensive to some, but I think it captures a part of what is wrong with Justice Samuel Alito's (SA's) leaked opinion in Dobbs v. Jackson Women's Health Org. and its conclusion that Roe v. Wade and Planned Parenthood v. Casey were "egregiously wrong."

From 1932 until 1972, the U.S. government and Tuskegee University recruited Black men suffering from syphilis to come in for treatment for their condition. The doctors then pretended to treat the disease but actually did nothing, initially because no treatment existed and in later years by allowing the patients to think that they were receiving the top of the line medical cure when in fact they were simply getting sicker and sicker. The purpose of this "study" was apparently to observe the course of untreated syphilis in Black men for medical knowledge. Most shocking about the experiment was that it continued even after penicillin became available as an effective cure for the disease. The Tuskegee doctors chose nonetheless to continue with their fake treatments so they could watch the progress of the illness, which ultimately leads to dementia and then becomes incurable.

This experiment exposes how recently medical professionals viewed Black Americans in purely instrumental terms. It comes to mind when when I absorb SA's attitude and the opinion he wrote to make that attitude part of the law. I will hereinafter refer to the Tuskegee doctors and to SA as "the villains," though I understand I must make my case for this appellation.

In both Tuskegee and unwanted pregnancy, the villains did nothing to create the undesirable condition in which Black men and women of all races respectively found themselves. No doctor injected syphilis into a patient and no government actor inseminated a woman. Both Black men and women of all races engaged in sexual activity that gave rise to the conditions in which they found themselves.

What the villains did was to decide that the women and Black men should remain in the state that made them feel sick and that they desperately wished to exit. And indeed, in both cases, there were ethical doctors prepared to assist women and Black men in exiting their unwanted and sickening respective conditions, but someone came along to stop them from receiving that assistance. The Tuskegee doctors effectively prevented their patients from getting help by misleading--much in the way that Crisis Pregnancy Centers mislead women into thinking they are going to an abortion clinic, lies that were approved by the Supreme Court in NIFLA v. Becerra.

SA now invites states and the federal government to criminally punish anyone who helps a woman exit an unwanted pregnancy that may feel to her as awful as and even more threatening than an STD, acquired the same way as the syphilis that so many Black men were left to die of in Tuskegee.

Just as the Tuskegee doctors regarded the Black men in their care as things to be exploited for educational purposes, the implicit premise of SA's opinion is that women are things to be used to turn a single sperm and egg into a baby inside their wombs and against their will.

For the Tuskegee doctors and SA, if something is already happening in a "thing's" body, then any suffering or illness or death that results are the thing's problem. That includes the ten times as many women who will die of taking their pregnancies to term as the number who would have died in the extremely safe abortion procedure. But we all know that in the Tuskegee study, the decision to prevent treatment and to allow the syphilis to progress to its natural end was monstrous. No one today (outside of perhaps some of the subscribers to the cleverly paranoid "Replacement Theory") would dare suggest that the Tuskegee study was anything but an outrageous violation of basic human rights. The instrumental approach to Black patients was both racist and profoundly reprehensible, notwithstanding the fact that the disease had entered the bodies of the victims already.

By the same token, SA and his "pro-life" partners are monsters as well. They look at a woman suffering an unwanted pregnancy and all that they see is the baby that her body will create if left to its own devices. But just as Black men are not here on this Earth to provide for medical edification, women (and trans men and nonbinary people) are not baby making machines, to be used at will by those who like to pretend that a fertilized egg has anything in common with an actual baby.

We continue to perform cruel and pointless experiments on our nonhuman animal cousins, as Aysha Akhtar persuasively explains. But I think (hope) that we have learned our lesson with the Tuskegee experiment, at least with respect to humans. If a patient is ill, and a doctor exists who can help the patient exit the illness, it is incumbent on other doctors and on society to either support the treatment or get the hell out of the way.

SA, however, yearns for an earlier time, a time when instrumentalizing other people was accepted uncritically. And though our society does not agree with SA's perspective, the people that Donald Trump cherry-picked for this Supreme Court (under the guidance of Leonard Leo, former executive vice president of the Federalist Society) certainly do. When SA looks at a pregnant woman who wants to exit her pregnancy, no matter how early along, SA sees a baby making machine rebelling against her nature. He looks at her the way the Tuskegee doctors looked at their impoverished patients of color whom they betrayed.

And SA is no less a villain for betraying the women who must live with his callous misogyny. He did not speak in his draft opinion of the hardship the women forced to carry and birth unwanted pregnancies endure. And the reason for the omission is that he simply does not care. The difference is that the outrageous Tuskegee experiment came to an end around the time that Justice Harry Blackmun wrote his wise and measured opinion in Roe v. Wade, and SA, to his shame, is writing in 2022.