Clarence Thomas: Be Careful What You Wish For

 by Sherry F. Colb

During the oral argument in the Mississippi abortion case, Justice Thomas at one point asked Julie Rikelman a seemingly irrelevant question. He alluded to a Supreme Court case, Ferguson v. City of Charleston, in which the state collaborated with obstetricians to invade the privacy of pregnant women. The state suspected the women of fetal endangerment through the use of illicit drugs. 

Justice Thomas was like a little boy in a candy store. He could see that his dream of allowing states and the federal government to force women to remain pregnant and give birth against their will was poised to come true. If viability would no longer serve as a boundary between the government and women's uteruses and vaginas, then what was to stop the government from punishing women for being addicts or for ingesting foods and drugs that could harm the raw material that the handmaids had been conscripted to turn into babies?

Hoping to get back to the subject of abortion, Rikelman nonetheless paused to tell Justice Thomas that threatening women with criminal punishment discourages them from seeking out prenatal care. I think she might have made the mistake of thinking that Justice Thomas was intervening to help ensure healthy births. Let us be clear: the goal is and always was to control and punish women, the consequences for the babies the women were forced to create in their bodies and then birth be damned.

The reason I urge caution on Justice Thomas's Christmas list of female subjugation is that shockingly, it turns out that when men ingest unhealthy substances, there appears to be a deleterious impact on the children to which the men's sperm eventually give rise. Stated more simply: men harm their preconceived children long before viability. Perhaps life begins at spermatogenesis or even earlier. Cocaine is illegal, of course, but Justice Thomas was interested in punishing the cocaine user not because cocaine is an illicit drug but because of the harm her drug use might inflict on the raw material that would one day, because of the woman's body's hard (and now involuntary) work, become a baby.

Did you think that only the people with ovaries and pregnancies could harm their offspring by ingesting unhealthful substances? Well a growing body of research indicates that when a man eats unhealthful food to excess, drinks a lot of alcohol, smokes, and even ages past 40, he can expect to contribute to birth defects, autism, obesity, mental illnesses, and other impairments in his offspring. Aging and indulging in unhealthful habits in particular appear to change a man's genes. Tobacco smoke, for instance, can damage a man's sperm and thereby allow the sperm to pass on potentially harmful genes to the next generation. Children whose biological fathers are over 40 at conception are at a much higher risk of autism than children whose fathers are under 30. Older fathers also have children who are more likely to develop schizophrenia. One study suggests that older men, in addition, are more likely to have offspring with heart problems or with Down Syndrome. Isn't it funny how we have for so long assumed that if anyone is to blame for a child's inherited challenges, it is solely the woman? You would think people were biased against women.

Other surprises are the fact that a father's alcohol consumption appears to increase the risk of fetal birth defects. I can just see Justice Thomas wanting to punish women who give birth to babies with fetal alcohol syndrome, approving--as he does--of the arrest and handcuffing in South Carolina of post-delivery, still-bleeding women whose urine revealed the presence of cocaine. Note that South Carolina was ahead of the curve in recruiting obstetricians to act as an arm of law enforcement decades before Texas recruited the entire population to enforce its fake-heartbeat abortion law.

What is the upshot of what we know about male behavior and its impact on offspring? Cigar Aficionado listed Justice Thomas among the top 100 cigar smokers of the 20th century (he ranked 45). According to one biography (at p. 297), Thomas did not quit cigar smoking until 1995, long after the birth (and presumably the conception) of his son. Thus, he may have inflicted harm on his child through his cigar habit. And if he drank alcohol, the government should, by his lights, have taken an interest and perhaps arrested him when it became clear that he was planning to have a child. When the police state monitors what cocaine-addicted women do to their future children by using coke,  there is no reason, Justice Thomas, for that police state to stop at women.

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That's all I have to say about Justice Thomas and the Dobbs oral argument, but I want to add a few thoughts to clarify some things for people who have complained about my writing on these pages as if only women become pregnant. I understand that Trans men and Nonbinary people do get pregnant and have babies. Nothing I have said here or elsewhere is intended to deny their experience. I have nonetheless spoken about the recent frontal assault on the right against forced pregnancy and birth in terms of women rather than "people" for a few reasons that I shall now elaborate. 

First, when states like Mississippi and Texas--with the eager support of a majority of Justices now occupying the nation's high court--pass laws that prohibit abortion, they are aiming their fire at women. They are not thinking about Trans men, and they are not attempting to do anything to Trans men. Trans men who become pregnant and want to terminate their pregnancies are the incidental casualties of such laws. Because women are the target of such laws, I speak of the law's victims as women. Trans men are the dolphins caught in the nets when people go hunting for tuna. Women are the tuna.

Second, saying in a conversation about the religious war on abortion that men and women both get pregnant obscures the misogyny inherent in such regulation. It brings to mind the way the Supreme Court spoke about pregnancy in Geduldig v. Aiello and G.E. v. Gilbert, claiming that pregnancy discrimination is not sex discrimination because not all non-pregnant people are male. They could now add to that analysis that not all pregnant people are female. And yet it is obvious that pregnancy discrimination is sex discrimination. 

For similar reasons, a health care plan that covered all conditions except for prostate cancer treatment would represent sex discrimination, even though Trans women and Nonbinary people could have a prostate and therefore prostate cancer, and some Cis men lack a prostate. Rather than confuse most people with qualifications about how not all pregnant people are female and not all prostate cancer sufferers are male, I choose to speak about these phenomena in a manner that clarifies the issues.

Third, even though some Trans men become pregnant and some of those Trans men have abortions, abortion among Trans men is a very tiny fraction of abortions in the general population. Does that mean that abortion among Trans men and Nonbinary people is unimportant? Not at all. Indeed, when the government prohibits abortion as the Supreme Court invites the government to do, anyone experiencing an unwanted pregnancy will suffer the consequences of the police state. But ultimately, the people at whom the law aims its arrow and the overwhelming majority of people who experience the results are now and have always been women. 

If and when we return to a state of affairs in which the law regards women as the equals of men and the courts protect the rights of women not to be forced to remain pregnant and give birth against their will, Trans men and Nonbinary people will be the incidental beneficiaries of such progress, just as they are the incidental victims of the current onslaught. I think it can be helpful to speak of their experience, and I certainly encourage Trans men and Nonbinary people to speak out about their suffering. But abortion remains primarily (in terms of intent and in terms of impact) a women's issue, and I will speak of it in those terms.