Banning abortion criminalises femininity as it does race and poverty

“Second-class citizenship is nothing but 20th century slavery.”

Malcolm X

With the US supreme court’s majority decision to overturn Roe v Wade, the constitutional right to abortion which American women had taken for granted since 1973, has been elided with a swipe of the pen. 

The court’s reasoning in Dobbs vs. Jackson Women’s Health Organization is that the original drafters of the American constitution did not make provision for the right to abortion. They were without exception white, property-owning men — persons without uteruses — as the minority opinion points out.

Justice Samuel Alito, who wrote for the majority in Dobbs, argued that the 14th Amendment, which was ratified in 1868 after the Civil War, did not envisage such a right. Overturning Roe and killing off abortion rights was always the objective of Justice Amy Coney Barrett, which culminated in her elevation to the supreme court bench.  

In the words of Jordan Smith, who wrote for The Intercept, “[The] reconstruction-era addition [of the 14th Amendment was] explicitly designed to address some of the particular horrors of slavery, including ensuring the right of individuals to determine whether, with whom, and when to form a family.” 

To contextualise the court’s decision, it is worth bearing in mind that at least 60% of all Americans are in favour of abortion rights. The supreme court ruling in Dobbs almost certainly has dire consequences for women’s health and emotional well-being. 

If the majority decision of the court in Dobbs was curious, so was the original decision in Roe, which was handed down almost 50 years ago. Just as the current court  is made up of a majority of Republican-appointed justices, so too was the majority in Roe made up of Republican-appointees to the court.

How is the difference in these two conclusions to be explained? 

One way to understand this anomaly is to explore the decades-old ideological assault on reproductive rights and justice which began in the early 1980s during Ronald Reagan’s presidency. 

It culminated in the election of Donald Trump and his support for the anti-abortion evangelical right, which ensured his election victory over Hillary Clinton in 2016. 

The ruling in Dobbs is the ultimate fruit of that effort. But the conservative victory can also be understood in a broader context.

Since the onset of the 20th century, sight, as the human sense of choice, has been waning, to the extent that the printed text has increasingly been replaced by podcasts, audiovisuals and audio-books, but it also represents a cultural seachange in store for equality between the sexes and gender-based violence.

I argue in a recently published paper that the return to images (in the sense of the moving picture in film) from the printed text in Western culture, is indicative of a seachange in the relations between the sexes. In view of the global crisis in masculinity and the waning of the hegemony of sight as the human sense of preference in favour of other senses (hearing, for example), the social and political position of females in this culture has improved substantially.  

Sight or the male gaze has always been seen as a site or source of cultural contention by feminists. This seachange is evidenced by the fact that no less than three feminist revolutions took place during the 20th century and, if we add the #Me Too movement of the early 21st century, even four. 

Said in another way, we are experiencing a backlash against the gains for women as equal people. Susan Faludi demonstrates this assertion in her 1991 book Backlash: The Undeclared War Against American Women  where she presents evidence of the existence of a “backlash” against the feminist advances of the 1970s in the United States, and, by extension, elsewhere in the world. Dobbs is the most recent example of such a backlash.

However, the backlash goes further than merely rolling back gains for women achieved through the feminist revolts of the 1970s. With the Supreme Court’s decision in Dobbs, at least 26 states in the US have released so-called trigger or sleeper laws, banning abortion outright or severely restricting abortion rights, even in cases of rape or incest. 

Although California, Oregon and Washington (the West Coast’s so-called Abortion Rights Firewall) as well as New York City have invited women to these outposts for abortion care, these sleeper laws, once triggered,  aim to criminalise women seeking abortions who travel across state lines, although none of these laws do so explicitly at the moment. 

Medicated abortion procedures, using abortion pills, which account for at least half of all abortions in the US, are almost certainly also in the firing line. 

The point is not simply, as Tish Harrison Warren has written in her weekly newsletter on religious issues for the New York Times, that “[b]odily autonomy is limited by our obligation to not harm others,” i.e. that women must be prepared to sacrifice themselves for the common good. 

Jia Tolentino, writing for The New Yorker, opines that “we are entering an era not just of unsafe abortions but of the widespread criminalization of pregnancy.” 

She is correct in pointing out the dangers of state-sponsored surveillance and criminalisation of pregnant women. This includes the potential prosecution of abortion providers and well-meaning friends. Many trigger laws allow private citizens to sue anyone who helps a pregnant woman to obtain an abortion elsewhere and who are in turn rewarded with $10 000 for their troubles. 

It has also been suggested, correctly in my view, that the women who would be most penalised by this new policy direction are low-income, black and Hispanic women. Indeed, the closest legal instrument to this new development in Dobbs is the Fugitive Slave Act of 1793, enacted around the time of the French Revolution. 

It is also curious that these think-tanks, such as the Federalist Society, who have so assiduously pushed for the elimination of abortion rights since the 1980s, would not lose any sleep over eliminating or ameliorating the structural factors that almost certainly increase the likelihood of miscarriage — poverty, exposure to chemicals or other harmful substances, working night shifts or otherwise long hours.

In my view, the supreme court decision in Dobbs vs. Jackson Women’s Health Organisation is a milestone in the pushback against the idea that women are entitled to equal rights and personhood. After more than a century of cumulative appropriation of respect, equal rights and acceptance as persons on par with men, the majority decision of 6-3 has succeeded in collapsing womanhood and replacing it with motherhood. 

But the ruling goes further in criminalising the interface between poverty, femininity and race. It also aims to punish those persons with uteruses (even if they don’t identify as female, such as trans or non-binary people), if only at a visceral level, for being “female.” 

At the root of this phenomenon is the hatred of womanhood. Patriarchy’s insistence on controlling women by controlling their bodies, reveals a deep insecurity of the female reproductive process, something which can only be manipulated by violence, or at the very least, force.

The views expressed are those of the author and do not reflect the official policy or position of the Mail & Guardian.

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Casper Lӧtter
Dr Casper Lӧtter is a conflict criminologist affiliated with North-West University’s School of Philosophy (Potchefstroom), South Africa as research fellow.

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