Submitted December 8, 2022 for Dr. Eric Brown's SOC4500 at the University of Missouri
Note: one sentence has been excised for privacy reasons.
On June 24, 2022, hundreds of millions of Americans lost their legal right to abortion when the Supreme Court released their decision on Dobbs v. Jackson Women’s Health Organization. Although pundits had long predicted the eventual fall of Roe v. Wade, the Court’s decision to reverse Roe was unusual, and arguably unique in American history. Social policy has always been driven by political games and the personal convictions of legislators, but many – including the authors of the dissenting opinion on the Dobbs decision – felt that this change was more sinister than most, partly because of the relative newness of many current justices to the court. Others celebrated, especially the supporters of “trigger laws” that swiftly banned abortion in 13 states after the release of the Court’s decision. In the course of a single day, the landscape of the abortion debate had been completely reversed. The anti-abortion movement suddenly had the upper hand in the legal arena for the first time in nearly half a century.
But the implications of this social policy decision were far broader than the potential criminalization of abortion. Justice Alito washed his hands, and the Court’s, of any wrongdoing, writing in his opinion that “We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision” (2022:69) But regardless of the justices’ intentions, by overturning Roe v. Wade, the Supreme Court has eroded the legal basis for a number of personal rights, completely reframed the legal status of pregnant people in the United States, and upheld states’ legal right to enshrine patriarchy, transphobia, and white supremacy into their laws and constitutions. How have these changing policies impacted the legal status and lives of pregnant Americans?
Reproductive rights advocates have taken to saying that recent abortion legislation will force women to give birth. However, the history of forced birth in America is far older than the abortion debate. Traditionally, forced birth has been only one facet in a larger system of control that primarily targets the bodies of Black women.
Although enslaved people often suffered sexual abuse from their owners in the early days of American slavery, after the international slave trade was banned in the United States, American slave owners were economically incentivized to the practice of intense control over the reproductive systems of their slaves. Legally, the children of an enslaved person belonged to that person’s owner. The combination of these laws set the stage for systemic sexual abuse of enslaved people. Some slave owners merely encouraged their slaves to have children, while others personally raped their slaves. They intensely punished the enslaved people who resisted this state of affairs by attempting to regain control over their reproduction, including by seeking abortions (Riley 2022:1663). By continually forcing enslaved people to carry children against their will, slave owners created a culture in which it was normal and accepted to control the reproduction of Black people in the same manner as livestock. Forced birth – which the International Criminal Court considers a crime against humanity in the same category as sexual slavery (Rome Statute) – had become enshrined into the way Americans treated Black people. This means that forced birth is an inherently racialized concept in United States culture. What whites fear may happen to them in the post-Dobbs world is something that has already been happening to Black Americans for centuries.
Following the abolition of chattel slavery in the United States, the dehumanization of Black people continued, but the motivations behind the control of their reproductive systems changed. There was no longer a direct economic incentive to force pregnancies and birth upon Black people. This factor contributed to the establishment of a program of forced sterilization that targeted women of color (Riley 2022:1663). These programs primarily targeted Black and indigenous women, although women of all races were targeted if their genes were considered ‘undesirable’ due to disability or other factors. Although this may at first seem like a complete reversal of the logic used to control the reproduction of Black people during slavery, both situations are based on the idea that it is just and right for white people to control the reproductive decisions of people of color, especially Black and indigenous people.
The cultural norms produced by these historical factors normalize the rape, sexual abuse, and forced pregnancy of people of color, a legacy that Black feminists observe continues in America to this day (Combahee River Collective). Modern antiabortion laws cannot be understood outside of this context. The tightening noose of anti-abortion policies will effect BIPOC first and most harshly. People of color are far more statistically likely to live in poverty, and being forced to have children will not only exacerbate this state of affairs but also limit the help that they can receive from federal welfare, which places strict limits on childbearing via “family cap” policies (Riley 2022:1663). Moreover, modern anti-abortion policies are often attached to incredibly harsh criminal penalties, sometimes carrying up to 99-year prison sentences (Morrison forthcoming:5). Laws in the United States tend to be enforced more harshly against people of color than white people (Kim 2018), and there is no reason to assume that anti-abortion policies will be enforced any differently than other laws. While post-Dobbs anti-abortion policies are still too new for a study on long-term effects, in all likelihood, this means that anti-abortion policies will contribute to the already-disproportionate imprisonment of people of color in the United States.
The reversal of Roe and consequential enactment of abortion bans in states across the country has created a new legal paradigm for people who the state judges to be capable of giving birth. Before Dobbs, when a person became pregnant, they could trust that, legally, they still had all the basic rights afforded to other citizens. Now, the pregnancy comes first. Under most current anti-abortion policies, the desires or potential life outcomes of the pregnant person are not taken into account. People who do not want a child, cannot afford to raise a child, or are for any reason physically or mentally incapable of pregnancy or childrearing will still be forced to carry their children to term. In several states – nine, to be exact – not even people who became pregnant because of sexual abuse can legally seek abortion (Morrison forthcoming:6). Even under anti-abortion policies that seek to protect the most basic of the pregnant person’s rights, such as policies that allow abortion when it would save the life of the pregnant person, the difficulty in proving these exceptional circumstances in a court of law and the high penalties placed on doctors who provide abortions outside of these circumstances mean that even in cases where a pregnant person is technically legally entitled to seek an abortion, they still may not be able to actually access one (Morrison forthcoming:6).
What this means for people who are pregnant or have the capability to become pregnant is that their legal status as a human being is or can be temporarily suspended, when the state has determined that this is in the interest of their child or potential child – and many states have created a remarkably broad category of circumstances that qualify for this suspension of rights. Although draconian abortion bans in many states meant that this was certainly possible before Dobbs, this you-only-have-rights-when-we-say-so situation is now the default for people with a certain anatomy. Following the logic that supports contemporary anti-abortion policies, this means that anyone with a uterus is essentially a potential pregnancy carrier first, and a person second. Morrison describes this as a new form of the common-law doctrine of coverture, which held that by marriage women became a kind of extension of their husbands:
“By pregnancy, the unborn and host woman* are one person in law; that is, the very being or legal existence of the woman is suspended during the pregnancy, or at least is incorporated and consolidated into that of the unborn” (Morrison forthcoming:3)
Historically, however, coverture in marriage has been justified by the idea that it is in some ways beneficial to women, providing them with protection by their husbands. On the contrary, as Morrison points out, the modern form of “fetal coverture” is not remotely beneficial; it guarantees no protection, and in many cases opens the pregnant person up to medical and even legal risks (Morrison forthcoming:14).
Although Morrison describes this state of affairs as a new legal status dependent on pregnancy, I would argue that it is actually dependent on the possession of a female-sexed reproductive system. After all, public control over pregnancy and reproduction goes far beyond anti-abortion policies. People are discouraged from certain activities or medical procedures because of the impact it may have on their ability to one day become pregnant even long before or after they are physically capable of viable pregnancy. The common thread between these situations is not actual pregnancy but the possession of anatomical parts that could potentially bear children, even if that potentiality is astronomically small.
Dobbs, in establishing the legality of a suspension of basic personhood and its associated rights for anyone with the potential to become pregnant, does more than simply allow abortion bans: it asserts necropolitical power over half the population. Necropolitics, as Achille Mbembe defined it, is a theory that society is split into the ‘living’ – people who can fully participate in society – and the ‘dead’ – people who are subjected to “a permanent condition of “being in pain”” (2003:29) via brutality and terror, and thereby cannot truly ‘live’ (2003). Necropolitics are inherently tied closely to race because the ‘dead’ group is almost always historically racialized – some of the examples of ‘dead’ groups in the original essay include enslaved people during chattel slavery and Jewish people in Nazi Germany. By asserting that uterine coverture is an example of necropolitics, I do not mean to diminish the inherent racial element of the term; on the contrary, I wish to clarify the link between uterine-centric politics and systemic racism. As discussed above, the Dobbs decision is likely to impact people of color first and most harshly.
The impact of the Dobbs ruling is the creation of a new legal status for people who possess certain anatomy. If a person in this category engages in certain undesirable behaviors (i.e. unprotected sex) they may be punished with a period of suspended legal personhood i.e. uterine coverture. Although anti-abortion policies are the only current major example of uterine coverture, it goes without question that, taken to its logical conclusion, this legal status justifies harsh regulation of the choices of people who can become pregnant, so long as those choices can be judged to have some impact on their reproductive health. The state has granted itself a massive expansion of power in the form of the Dobbs ruling, setting the stage for that power to be potentially exercised to its fullest and most violent end.
Throughout this essay, I have used terms such as ‘pregnant people’ and ‘people with the capacity to become pregnant.’ In addition to providing clarity (not all women can actually get pregnant), I prefer to use these terms for the sake of including trans* and intersex people who can become pregnant. It hardly goes without notice, however, that the writers of the vast majority of anti-abortion policies throughout the United States do not share my preference for inclusion. On the contrary, many of these policies, including the Dobbs decision itself, refer almost exclusively to women and mothers.
This is not to say that a trans man could probably obtain an abortion without legal consequence if his state’s legislation specifically targeted “women.” Instead, this phraseology indicates how the logic of patriarchy and queerphobia work in concert. The forced legal misgendering of non-women who can get pregnant is one part of the dehumanization that anti-abortion policies entail for all people who can get pregnant. Misgendering is not to be taken lightly; the branding of reproductive health care for people who can become pregnant as “women’s health care” contributes to a lack of access to reproductive healthcare for trans* people (Agenor 2021:64), since trans men and other non-women would often rather risk severe health consequences than face misgendering. In some cases, post-transition men have difficulty getting insurance approval for medically necessary reproductive health procedures because they are no longer legally classified as women. It’s a catch-22: a trans person who no longer identifies as a woman can claim manhood, but lose essential services that are only provided to women, or they can allow themselves to be wrongly sorted into womanhood for the sake of accessing those services, at the risk of a major toll to their mental health. This kind of transphobia follows the same logic as cissexist* patriarchy: that women (or, in this case, people legally defined as women) are weaker, and so need protection, while men are stronger, and so need no help. Trans* non-women with ‘female’ anatomy are still categorized as a legally ‘undesirable’ gender that must live under uterine coverture as described above.
If trans men and transmasculine people tend to be grouped with and legally treated as women because of their anatomy, does this mean that trans women and transfeminine people are treated as men? Not at all. In fact, while trans women do not generally have the same reproductive anatomy as cis women, the logic used to deny their autonomy is remarkably similar to the logic of patriarchy; some healthcare providers refuse to provide gender-affirming treatment to trans women by claiming that it may affect their fertility, and popular media often portrays trans women as vapid and shallow. This means that the legal category of ‘woman’ which allows for a state of suspended personhood can be wielded not just against cis women with the ability to become pregnant but also against anyone who has a connection to womanhood, whether because they actually identify that way or simply share their reproductive anatomy with the majority of cisgender women.
Dobbs v. Jackson Women’s Health Organization is far from the simple ruling protecting the ‘sanctity of life’ that its defenders claim it to be. Nor can it be boiled down to a ‘war on (cis, white) women’ as so many of its critics have said. On the contrary, it sets a remarkably broad precedent for the federal government’s right to exercise more control than ever before over its citizens’ bodies; or, in simpler terms, it establishes that American citizens no longer have a guaranteed right to autonomy. In certain circumstances, a person’s ability to make their own choices about what is best for their body and their life can be suspended, even when it kills them, so long as it theoretically benefits someone.
The impact of such a ruling cannot be easily overstated. In this case, the circumstances outlined happen to primarily target women and trans people who can give birth. But as discussed above, the circumstances in which the state can justify suspending someone’s personhood vary widely. Justice Alito claimed that the justices had no ability to predict how the Dobbs ruling may affect the future. Perhaps not, but by simply examining the legal logic at play, anyone can guess at how future rulings may build upon this one. Last June, Dobbs placed people with the ability to become pregnant into a state of temporary personhood, a state that could be rescinded at any time. Next June, the same legal logic that allows this suspension of personhood could be followed to its logical conclusion and wielded against trans and gender-nonconforming people, or indigenous tribes, or the mentally ill, or any person who the state can justifiably claim would be better off under its paternal supervision.
*Or person, as it were.
*Generally defined as the belief that transgender people are deviations from a cisgender norm.
Agenor, Madina, Gabriel R. Murchison, Jesse Najarro, Alyssa Grimshaw, Alischer A. Cottrill, Elizabeth Janiak, Allegra R. Gordon and Brittany M. Charlton. 2021 “Mapping the scientific literature on reproductive health among transgender and gender diverse people.” Sexual and Reproductive Health Matters, 29(1):57-74.
BlackPast, B. 2012. “The Combahee River Collective Statement.” BlackPast.org. Retrieved December 7, 2022. https://www.blackpast.org/african-american-history/combahee-river-collective-statement-1977
Dobbs v. Jackson Women’s Health Organization, 597 U.S. ____ (2022). Retrieved December 5, 2022. https://www.law.cornell.edu/supremecourt/text/19-1392#writing-19-1392_OPINION_4
Kim, Jaeok and Andre Kiesel. 2018. “The Long Shadow of Police Racial Treatment: Racial Disparity in Criminal Justice Processing.” Public Administration Review 78(3):422-431.
Mbembe, Achille and Libby Meintjes. 2003. “Necropolitics.” Public Culture 15(1):11-40.
Morrison, Caren Meyers (in press). “State Abortion Bans: Pregnancy as a New Form of Coverture.” Virginia Law Review Online. Retrieved December 6, 2022. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4255962.
Riley, Taylor, Yasaman Zia, Goleen Samari, and Mienah Z. Sharif. 2022. “Abortion Criminalization: A Public Health Crisis Rooted in White Supremacy.” American Journal of Public Health 112(11):1662-1667.
Rome Statute of the International Criminal Court. Retrieved December 6, 2022. https://legal.un.org/icc/statute/romefra.htm.