Abortion on Demand and An Unborn Justice

by Sherry F. Colb

In my column for this week, I discuss the changed meaning of "factory farming" in the public discourse. I think it is important to be aware of this change, because one might otherwise mistakenly think that we have experienced a dramatic revolution in people's attitudes regarding the exploitation of animals. More people than ever seem to be saying that they oppose factory farming, and almost all animal farming is factory farming, so q.e.d. And yet polls find that only 3% of the population identifies as vegan, so it seems that people have come to use the phrase "factory farming" in a manner that differs from how it was once used. "Factory farming" now signifies "something that I condemn and that has nothing to do with me" rather than the reality of "what actually happens to the animals whose slaughtered bodies and bodily fluids I consume each day."

Other words and expressions both evolve and settle into meanings that carry more baggage than meets the eye. In this post, I want to focus on the expression "abortion on demand." I focus on it, because Judge Brett Kavanaugh--Donald Trump's second (all-but-certain) appointment to the U.S. Supreme Court--used those words in a dissenting opinion. He wrote the opinion in connection with an abortion case involving a pregnant undocumented minor. His use of the phrase "abortion on demand" is revealing. It signals something about Judge Kavanaugh's thought process regarding abortion.

The first thing to note is that Judge Kavanaugh is obviously opposed to abortion, and his opposition is both personal and legal. That is, he will not hesitate to overturn Roe v. Wade or render it an empty letter. As Trump promised, he specifically set out to select nominees who would overturn the decision, and he has apparently stuck with that plan. Nonetheless, the Senate confirmation hearings have for some time represented a charade during which the nominee pretends to be open to all sides of one or more contentious political issues. The nominee pleads unwillingness and/or inability to answer hypothetical questions that might come before the Court, while the senators who oppose the nominee ask questions aimed at exposing the obvious-to-everyone truth.

Notwithstanding the standard dishonesty that has long accompanied such hearings, we sometimes confront a nominee who has already signaled not only his political leanings but also his partisan loyalties toward one side of a political divide. Judge Kavanaugh may be such a nominee on the issue of abortion. I say this because of his words in Garza v. Hargan, an en banc case in the D.C. Circuit. The case involved a pregnant minor who sought the court's assistance in allowing her to leave immigration custody and get an abortion. The en banc court granted the girl's request, but Judge Kavanaugh dissented, characterizing what the girl sought as a "new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand."

What does "abortion on demand" mean? If it had no history, I would assume that pro-choice advocates had used it to refer to the ability to have an abortion even if one is impoverished or unable to take many days off from work. In other words, I would think it means that the government should subsidize abortion services (which it does not) or that the government must not impose waiting periods on women (which it does). Many women have to travel great distances to an abortion provider and cannot afford to visit a clinic once to start the waiting period running and then a second time for an abortion. I think I would reject the phrase, if I were looking for a good slogan, because it sounds rather stupid. "On demand" seems like one is buying some sort of consumer product (like a pair of sneakers) and wants to be able to get it right away.

Yet "abortion on demand" is largely a right-wing slogan. People on the right routinely use it to characterize abortion simpliciter, as in "feminists think women should have the right to murder a child in the womb until the moment before the baby emerges from the birth canal. They want abortion on demand." The slogan treats women who end an unwanted pregnancy as if they were spoiled children at the supermarket throwing a temper tantrum because the bakery department is out of Yin Yang cookies. It is a saying that suggests that feminists cannot tolerate even the most innocuous limits on women's unfettered ability to kill their unborn babies.

In describing the undocumented minor seeking the court's relief as joining the battle for "abortion on demand," Judge Kavanaugh seemingly failed to absorb the facts of the girl's situation. She was living in a detention facility because she had fled abuse in her country of origin and did not want to return there and subject herself to more abuse. The government was not convinced that she should be allowed to immigrate. To pave the way for an abortion in the U.S., she persuaded a judge to grant a judicial bypass, allowing her to proceed without parental involvement. Allies on the outside presumably provided money to pay for the girl's abortion.

For Judge Kavanaugh, however, this story was one of "abortion on demand," the ability of the girl to just snap her fingers and voila, she stops being pregnant. I wonder what Judge Kavanaugh would say if a prisoner in labor had to endure the obstacles that this girl endured before being allowed to go to the hospital and deliver her baby. Would he call her experience "birth on demand"?

For good measure, Judge Kavanaugh added that the government has an interest in refraining from "facilitating" an abortion by releasing the girl from custody before an immigration sponsor is located.  The facilitation, in other words, would consist of allowing the girl to leave for the abortion. Just releasing her from custody to have a medical procedure protected (for the moment) as a constitutional right, not paying for the procedure, not escorting her to the clinic, not asking a court to bypass parental consent, not performing the abortion, is nonetheless sufficient involvement to make the government abortion facilitators, which the government has an interest in refraining from being. That gives us a hint of what we can expect from this judge/justice-to-be when religious people claim the right to avoid the "complicity" involved in obeying the law.

The use of the phrase "abortion on demand" here is disturbing for a few reasons. First, the abortion in this case was anything but one "on demand," if the phrase refers to simplicity, ease, or a lack of  obstacles.

Second, the use of the phrase therefore means that Judge Kavanaugh is completely unmoved by the circumstances faced by the pregnant minor in this case. He just repeats the "abortion on demand" mantra of abortion opponents and votes against her, even when bound by Supreme Court precedent (which he will not be for long).

And third, the phrase seems to function less as a factual description of anything real than as a signal to the right that he is in their camp. Though he said during his testimony that Roe and Planned Parenthood v. Casey are "settled," it is unclear what he could have meant by this other than to confuse the public.  We know this because he had so recently blown his dog whistle. "Abortion on demand" was a tribal call, perhaps an audition for the post he would shortly hold. And like any other dog whistle, it signifies the irrelevance of anyone whose situation places her outside the tribe, however dire her circumstances.

If I had been a senator on the judiciary committee during Judge Kavanaugh's hearings, here is what I would have asked: "You recently used the phrase 'abortion on demand' in a dissenting opinion in Garza v. Hargan. What is an 'abortion on demand'? Please distinguish it from the abortions currently protected under the "settled precedent" of Roe v. Wade?" It would not have made a difference, I realize, but it still would have been nice to hear his answer.