Tuesday, June 28, 2022

"The State Didn't Get You Pregnant"

 by Sherry F. Colb

I have written quite a few posts about Dobbs v. Jackson Women's Health Organization in these pages. With the luxury of time and space, I was able to elaborate both the foundation of my view that women have a strong interest in expelling an unwanted zygote/embryo/fetus from their bodies and the reason why a zygote should not have the status of a being with rights.

Last week, I received an invitation to write an op-ed for Fox News about the abortion decision. I knew that I could not take on the entire issue in 600-800 words, so I decided to focus on Samuel Alito's (SA's) complete failure to consider the costs in pain and risk and hardship that pregnancy--and especially unwanted pregnancy--entails. I put the status of the zygote/embryo/fetus to one side, in other words, and concentrated on the pregnant woman's side of the balance.

No one will be surprised to learn that I received some hate mail highlighting my stupidity, my dishonesty, and the likelihood that I had had "random sex" in order to become pregnant. Despite all of the infantile messages (which I stopped reading early on), I picked up on a thread of logic (well-camouflaged, to be sure) that I think is worth discussing (though not on Fox News).

Some of my courteous correspondents said that the government does not impose pregnancy on women. Women have sex and thereby act in a manner that will foreseeably yield a fertilized egg in many cases. Therefore, the logic appears to go, it is not the government but the pregnant woman who is to blame for the pregnancy.

One response to this argument is that rape and incest also lead to pregnancies, and those pregnancies are not the "fault" of the pregnant women. I would actually expand this category beyond what would qualify as rape under the law to reach cases in which men pressure women not to insist on a condom. Women sometimes fear the men who "just don't like condoms" and therefore avoid triggering their anger with a refusal of unprotected sex.

But even in cases of fully consensual sex, calling a pregnancy the woman's own fault adds a moral dimension to sex that virtually always indicts the woman and not the man. In reality, unwanted pregnancies are as much a part of the human condition as chronic diseases like cancer, heart disease, and arterial blockages. Each of these conditions results in part from the prior behavior of the patient. Arterial blockages in particular are most common in people who choose to eat the Standard American Diet (SAD). Nonetheless, it would be outlandish to pass a law prohibiting treatments for cancer, heart disease, and/or arterial blockages. Even if the government did not cause these ailments, it still has an obligation to stay out of the way of competent physicians and dietitians ready to treat the patients who seek treatment. If the government passed a law prohibiting doctors from treating arterial blockages, the law would likely not survive a constitutional challenge. And the fact that the government only prohibited treatment but did not cause the disease itself would be irrelevant.

If one wants to argue in response that a zygote is an equal member of the human community, then one can do that here as a means of distinguish arterial blockages from a zygote. But if we are focusing on the woman's interest and putting to one side the competing zygote/embryo/fetus interest, then the case of cardiovascular disease and the case of pregnancy are the same. Both conditions cause pain and distress and both risk death. In both cases, a person--someone who ought unambiguously to have rights--wants to remove a sickening condition from her body, and the law prohibits her from doing so. Would it be worse if the government deliberately gave people vascular disease and impregnated women (and trans men and nonbinary people)? Of course. But putting someone in a state of illness does not exhaust the unconscionable harms that a government can actively perpetrate against its citizens.

If you find yourself in a room with no oxygen, a room that you entered on your own, the government is responsible for your suffocating if it holds the door to the room closed as you try desperately to escape. The same is true for cardiovascular disease that kills you because the State prohibits treatment. And the case of an unwanted pregnancy is no different. The government may not have placed you there, but it is culpable for blocking your exit. This is why I compared forced pregnancy to the Tuskegee experiment, which also simply kept the victims from getting treatment for a disease that they already had upon arrival.

The reason that we so readily see the government's culpability in holding the door shut or in prohibiting heart treatments, I suspect, is that entering rooms and becoming ill with heart disease do not, in most of our society, trigger moral judgment. If someone is sick, we want them to do what is necessary to get better. With pregnancy, however, we do "blame" the woman for having presumptively consensual sex, almost regardless of the circumstances. My reader with the nasty messages seemed to assume both that I personally experienced an unwanted pregnancy (or am experiencing one right now) and that what he called "random sex" had led to the pregnancy in question. I do not think his speaking in this way to me, a perfect stranger to him, was an accident--he observed no boundaries around me, a woman, as he made all sorts of assumptions about why I cared about the abortion issue. And his particular hypothesis essentially classified me as a "slut" who got what I deserved for my promiscuity. In a sense, his message--however unpleasant and childish--perfectly captures the misogynistic nature of so much anti-abortion discourse. "You're a slut, so you must live with the misery of pregnancy." In their thinking, though they don't say it explicitly, pregnancy is the proper punishment for women who have sex.

Until male heart patients are sent away from the hospital to suffer, I would respectfully ask the government to leave pregnant woman and their doctors alone to decide whether to endure the often-overwhelming hardships of carrying to term. My correspondent may therefore have inadvertently voiced the strongest equality case for a right to abortion, notwithstanding the fact that the Court's stupidest precedent--Geduldig v. Aiello--foreclosed the equal protection argument in Dobbs (because the Court is all about respect for longstanding precedents).