Justice Aborted

 by Sherry F. Colb

Justice Samuel Alito (SA) has given us commentators a lot to criticize in the days following the leak of his draft opinion overturning Roe v. Wade and Planned Parenthood v. Casey. In this post, I want to focus on a phrase he uses in the draft: "aborted fetuses." Because the Movement for Forced-Pregnancy-and-Birth has regularly used this phrase (along with the meaningless propaganda term "abortion on demand"), it might sound like a proper usage, but I would contend that it is not. We abort a process that has just begun or that is in progress. We do not "abort" the endpoint of the process. To say "aborted fetuses" is to pretend that there is no process.

So what? you might ask. The Court is approving of reproductive servitude for women, including victims of rape and incest, and I am nitpicking about phraseology? I will now explain why the phrase that SA uses matters a lot.

If we use the phrase correctly in connection with terminating an unwanted pregnancy, we highlight what happens when a woman endures gestation. She finds her body to be undergoing a set of physiological changes that she may not want, changes that would eventually turn raw materials--some cells--into something very different in the end, a baby. What she experiences is uncomfortable, risky, and painful even if the woman wants to create a baby in her body. And if she does not, then the process causes enormous distress on top of the background discomfort, pain, and risk. She understandably wants her body back, and she wishes to empty her uterus of the placenta and the products of conception--not a baby but just the foreign tissue that has colonized her body against her will. 

If the pregnancy is far enough along to have produced a placenta, then the placenta--an organ created out of the same sperm and egg compound as the embryo--has begun hijacking her body's ordinary processes that normally guard her safety and health. The hijacking enables the woman to become a creator, one who turns a couple of cells barely distinguishable from a cheek swab into a completely different entity, a newborn infant. The placenta is very much like a hijacker because it diverts resources from the woman's body into the build-a-baby project in a manner that often significantly compromises her health. 

When a pilot aborts a flight, it means that she decides not to begin the flight or not to carry it to its conclusion. We never say that the pilot "aborted the destination" because that wording makes no sense: abort refers to a process rather than to an outcome. For this reason, the medical profession distinguishes between a spontaneous abortion (also known as a miscarriage), which occurs before twenty weeks of pregnancy and a stillbirth, which occurs after 20 weeks. By twenty weeks along, a pregnancy has already produced something close to a full baby; prior to that landmark, the woman has not finished creating a baby yet. We can quibble over the relationship between viability and baby-hood, but the notion that an egg cell just penetrated by a sperm cell is a baby that the government can "save" from the woman that it occupies is nothing but a religious idea, not a reasonable point of view based on the evidence. What I mean is that a zygote or embryo would not strike anyone as a baby unless that someone was drawing on a magical or religious view that some undifferentiated tissue is somehow already the baby that it would later become if the government blocked the woman's right to empty her own uterus. Calling a zygote or blastula or morula an "unborn baby" or an "unborn child" is like calling a grapefruit seed an "unharvested grapefruit." Where there is no baby and there is no grapefruit, saying "unborn" and "unharvested" respectively indulge in deceptive talk, i.e., lies.

When SA speaks of aborting fetuses, he uses the word "abort" as if it were a synonym for "assault" or "attack" or "murder." But the fetus (or, very likely, the embryo) is not necessarily the target of an abortion. Medical abortions, for example, do not directly harm the embryo. Instead, such abortions reduce progesterone in the body and induce cramping, both of which simply remove the pregnancy from inside the woman. It is, to use what was originally a Catholic phrase, an instance of double effect: the woman wants her body back, and the embryo dies as a side effect of the medicine. The result, incidentally, is not the delivery of a baby but rather the expulsion of tissue from the vagina into the toilet. Understanding abortion as a decision to bring an undesired process taking over one's body to a halt means comprehending that it is the pregnancy that the woman ends because she does not want to use her body to create a baby from raw materials. Her body belongs to her, and she should be the one who decides whether to invest her physical and emotional resources into building a baby from scratch.

SA begins his opinion by acknowledging that some people believe that a zygote is already a baby, while others believe that prohibiting uterus-emptying limits women's freedom over their bodies. This contrast is a fancy bit of nonsense. The people who believe that a zygote is already a baby have that belief because they also have a comprehensive set of other beliefs, most of which are magical in nature. I could observe, for instance, that a lot of people believe that Jesus died and then was resurrected, Some people also believe that others who do not believe in Jesus's resurrection will go to Hell. People are entitled to their beliefs, no doubt, but the people who subscribe to the above propositions lack the right to subject others in the population who do not share those beliefs to laws premised on those magical beliefs. Thinking that a zygote is a baby is just such a belief, and it entitles no one to legislate on its basis absent the repeal of the already-on-life-support Establishment Clause directing the separation of church and state.

Strangely, though, SA nowhere in the text of his draft mentions religion. He has some footnotes that cite religious authorities (not surprisingly), but he manages to bloviate for sixty-seven pages without saying a word about the relation between religion, on the one hand, and the belief that a single cell made up of ejaculate-plus-egg is a baby, on the other. Peculiar, right?

I know there is always some contrarian who says that they are an atheist who believes that ejaculate-plus-egg is a baby, but they are a tiny minority, and I did say that believers in magic could sign onto this idea too. By contrast, the "on the other hand" part where SA says that some believe abortion restrictions limit women's control over their bodies, seems to treat this true factual observation as equivalent to the magical/religious assertion he compares to it. In other words, SA thinks that "believing" that prohibiting abortion limits women's control over their bodies--an accurate factual belief--is in the same category as the belief that a cell is an innocent human "being"--a religious belief. And with beliefs on all sides of the issue, why shouldn't the government be able to regulate or ban abortion?

But imagine the following statement: "Some people believe that confession is required by God. Others believe that forcing people to confess can involve physical and psychological brutality. Therefore, some states will allow coerced confessions while others will not." Religious assertions that have no basis in fact (and by "fact" I mean non-faith-based fact) cannot compete with factual assertions in the legislative arena or at least they couldn't before Trump installed a (Christian, mostly Catholic) religious hegemony at the High Court. Protecting people who reject the supernatural faith of the powerful is part of why we have a Constitution in the first place, one that prohibits the establishment of religion.

SA likes the establishment of religion, however, which is why he voted to prevent Philadelphia from requiring contractors to refrain from discriminating against same-sex couples and why he voted to condemn as anti-religious animus the completely accurate and even banal assertion by the Colorado Civil Rights Commission that people have committed atrocities in the name of religion. It is because SA is far more committed to his religious views than to the Constitution and its guarantees of liberty and equality that he writes so many pages that say so little without even crediting the actual source for his "legal" opinion, his religious faith.

So where does "aborting fetuses" come in and what is the big deal about using the phrase? When SA refers to "aborting fetuses," he thereby obscures the factual reality of what is going on during pregnancy and during abortion. When women have an abortion, they are terminating the process through which they would otherwise create a baby from the ejaculate-plus-egg that some religious people view as "babies" but that is in fact some goo floating around in their fallopian tubes, heading toward the uterus. The phrase "aborting a fetus" makes the woman's body disappear, as if the fetus has some independent "life" separate from its parasitic reliance on the particular woman's body and organ systems. We forget about the pregnancy when someone refers only to the fetus. Also, we forget that the pregnancy process is nowhere near complete when the overwhelming majority of people who empty their uteruses in an abortion choose to do so.

By erasing pregnancy, then, SA erases the fact that the pregnancy creates someone from something. He ignores the reality that many abortions are of embryos and not fetuses and, more importantly, involve stopping the development process long before it has reached its result. We see the absurdity of the "viewpoint" that SA obviously holds when people pose hypothetical examples about going into a freezer filled with frozen embryos and committing "mass murder" by melting them all. It would surely be upsetting to people who underwent in vitro fertilization to see their efforts come to nothing. But no one--no one sane--would compare the mass murder of actual children in a war to the melting of frozen embryos.

To summarize, the two ways that people like SA lie to make their mischief sound law-like are: (a) to ignore and talk around the fact that people who wish to terminate a pregnancy are ending a process happening inside their bodies, a process that imposes tremendous intimate costs on their bodies and minds; and (b) to treat all of the stages of embryonic and fetal development as if the man's role in reproduction--ejaculating and fertilizing an egg--completes the process of reproduction so that we already have a baby before the woman has even begun building one, an erasure of pregnancy from the process of reproduction that coincides with approval for forcing pregnancy on women.

When you do not acknowledge violence, it is far easier to tolerate it. SA accordingly invites the states and even the federal government to commit violence against women while simultaneously denying that violence, starting with denial of the rape and incest that carry no exception under Mississippi law and ending with denial of the trauma that forced pregnancy and birth inflict on pregnant individuals housing the mere ingredients of life inside their bodies. It may not be that surprising that someone who appeals to religious dogma as a basis for legislation engages in a linguistic sleight of hand that treats uterus-emptying as violence while concealing the real violence involved in the forcible pregnancy and birth to which he sentences actual living women.