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Let Roe Go: Winning Abortion Rights

Do CounterPunch, Setembro 9, 2022
Por JIM KAVANAGH



Photo by Nathaniel St. Clair

With Roe v. Wade overturned, and multiple states rushing to institute draconian abortion bans, the abortion-rights movement faces the task of winning—anew, but effectively for the first time—a right many of us mistakenly thought was secured. To do that requires, I think, recognizing and abandoning the diversionary legal-constitutional and partisan-political paths in which confidence was misplaced, and sharpening the tools needed for a strong and irreversible victory in the wider political sense.

Judge Not

Of course, the abortion-rights battle must be waged on all fronts. But legal and legislative victories will only be won securely as a result of winning broad and deep political support—persuading a majority of people of the justice and necessity of the cause. That is the kind of political work that created the conditions for Roe v. Wade—independent, risky personal and collective political action, including civil disobedience, that highlighted the plight and right of pregnant women, and the hypocrisy and cruelty of criminalizing abortion.

Though it was, at the time, a punctual victory that resulted from such work, Roe also turned out to be Pyrrhic. Roe has arguably weakened the abortion-rights movement, which centered itself on defending the decision, searching for Supreme Court nominees who would support it, and engaging in partisan battles about it—at the expense of building wider and deeper popular support for the substantive right throughout the country.

Roe pre-empted an offensive strategy of growing a mass political movement for abortion rights, and channeled it into defensive, system-reaffirming, judicial and partisan “politics.” The abortion rights movement complacently placed its trust in an alliance with sympathetic magistrates and Democratic politicians, and forewent the task of non-partisan persuasion—continually making its case and strengthening its support among masses of people whose support cannot be taken for granted or written off. While “pro-choice” liberals were playing with their RBG dolls, 15-year-old girls (and their parents) throughout the country were being talked to, and shown pictures of dead fetuses, by conservative pastors. Who’s approach was more effective?

So, I say: Good riddance to the Supreme Court! Entranced by the historically anomalous rulings of the Warren-Douglas years, most liberals and some lefties forgot that, throughout American history, the Supreme Court has been an overwhelmingly reactionary actor. As political scientist Rob Hunter put it, SCOTUS is “an inherently conservative institution to defend an inherently conservative constitution” that was never going to be turned into a reliable tool of progressive reform. Stare decisis is not a rallying cry for any movement, and abortion-rights supporters wasted too much political time and energy insisting on it. As law professor Samuel Moyn said, in his critique of “Juristocracy”: “The notion that empowering judges would serve progressive outcomes is a flickering star that collapsed long ago, and it is long since time to accept the dying of the light.”

Roe v. Wade is dead, and the abortion-rights movement must come back to life from the somnambulance in which the judicial-institutional strategy represented by Roe enveloped it.

What we’ve witnessed in the abortion-rights battle is another failure of the liberaloid tendency—which happily marries what Hunter calls “the framers’ skepticism of popular sovereignty [and] mass politics—of securing elite support rather than persuading the minds and securing the support of the people.” It’s time to recognize, once and for all, that SCOTUS-imposed progressive reforms based on “judicial subtlety and clever interpretations of superannuated texts” (Of course there’s no clear abortion right in the 1789 constitution.) are thin ice that will melt under heated political assault—”precisely because they were made through elite deliberation rather than mass mobilization…[and] usually lacked broad constituencies that could be mobilized to defend them.” Because, end of day, Supreme Court decisions are “ratifications of accomplished political facts.”

So, let Roe go. As Moyn says, abortion-rights supporters (and all progressives) must let go of “the single-minded focus upon the higher judges and their selection,” and “embrace democracy and its risks.” Let’s hope the demise of Roe will “force progressives to take their case to the people to win majorities for their policies, including in places across the country they have given up for lost.” Because if they don’t, we will never have a strong national policy protecting the right of women to terminate their pregnancies.

Party Off

What goes for the Supreme Court goes as well for the Democratic Party, which is also a reactionary, anti-democratic organization. While it’s true that abortion rights has become a bright marker in American partisan tribalism, with the “Pro-Choice” badge pinned prominently on the Democratic Party uniform, it’s also true that the signal has far outweighed the substance.

The Democratic Party knows exactly what it’s doing when it repeatedly supports and promotes anti-abortion-rights candidates against abortion-rights supporters—like Tim Kaine in 2016, Henry Cuellar this year, and its current leader, Joe Biden, who for years said that Roe “went too far” and supported a constitutional amendment to overturn it, because he did not “think that a woman has the sole right to say what should happen to her body.” The party knows exactly what it’s doing when its super popular president with his super-majority Congress ignores his pledge to, first thing, “codify Roe”—i.e., pass an actual law that would obviate any “judicial subtlety and clever interpretations.” That party is telling you that it has more important things on its imperialist-capitalist mind than your abortion-rights stuff.

That is, of course, the predicament of any single-issue movement in relation to a national, multi-issue party, a predicament that means it—in this case, the anti-abortion movement—must avoid becoming an instrument or adjunct of, and fund-raising vehicle for, any—in this case, the Democratic—party. Good riddance to that, too.

At this moment, the single-issue abortion-rights movement will find more at-least-rhetorical support from Democratic rather than Republican quarters, but that’s an inessential, contingent circumstance that the movement should not take as a self-defining constant, let alone constraint. Which party did you think, 10 years ago, was and would always be the antiwar party? The movement must seek and use support among all people, regardless of party affiliation.

Any political movement, any conception of politics, that defines itself within the U.S. partisan framework will remain an opportunistically manipulated instrument of a duopoly whose main concerns lie elsewhere.

Indeed, as the recent decisive defeat of an anti-abortion rights amendment in Kansas demonstrates, taking the case for abortion rights to people and places across the country the Democrats have written off, and want you to write off, is an effective and necessary strategy. Abortion rights will be won with the support of a lot of people who today consider themselves Republican, Libertarian, or Independent—or who yesterday voted for Trump—or it will not be won at all.

The cause of abortion rights in this country has two important assets. One is that it is supported by a large—it’s fair to say the dominant—faction of the elite (however you construe it—ruling class, PMC, etc.). That’s because, as Glenn Greenwald said of same-sex marriage, it’s an issue that does not “threaten entrenched ruling interests …undermine oligarchs, the National Security State, or the wildly unequal distribution of financial and political power.”

That is why the right to an abortion was able to be instituted quite quickly from the elite, by a sympathetic Supreme Court in an exceptional conjuncture. That is also why the abortion-rights movement will now benefit from a lot of establishment financial, media, and political support. And this is the asset, the base of support, the abortion-rights movement has preferred to depend on for the last 50 years. Dependence on this asset is also what made the Roe-established abortion right politically precarious.

As a leftist, anti-imperialist socialist, I point this out to understand where this issue lies in the socio-political landscape, not to distance myself from the abortion-rights movement, which I support wholeheartedly. Abortion rights are women’s rights, and I understand that as in reciprocally beneficial relation with the struggle for socialism. But that’s a relation not an identity. Other people see it in very different terms, and, like many other issues, abortion rights is a cause that’s necessary to support on its own merit—even if it puts me in alliance with despicable characters, who hold other despicable views, among my class enemies. The abortion-rights movement has, and must be, willing to seek support from people with other despicable views—even those who don’t have money.

The abortion-rights movement’s other big asset, which the Kansas outcome demonstrated, is that it is supported in by a majority of the population. To be more precise, when the case is presented in clear and forthright manner, the majority of the population will reject criminalizing women who terminate their pregnancies. This is the asset that much of the abortion-rights movement has been too often ignoring, and the anti-abortion rights movement has worked hard, and too successfully, to undermine, over the last 50 years. “Pro-Choice” has not worked as well as dead-fetus pictures and “Pro-Life” in holding and building this crucial base of support—the 15-year-old girls and their parents—which is the most important asset for the abortion-rights movement.

This is perhaps because too many abortion-rights supporters do recoil from talking to, let alone building alliances with, people who hold other objectionable views within the ridiculous American partisan framework—even though those people are not class enemies, are intensely affected by the issue, and can and should and must, in large numbers, be persuaded. Insofar as it encourages this rejectionist attitude, the first asset—establishment support—threatens to become not an asset at all, but the abortion rights movement’s greatest liability.

Case Sensitive

I’m convinced that putting the case for abortion rights in the right terms is a necessary condition and, in itself, a most effective support of any political movement for abortion-rights. I think the consistent use of terminology that accurately and honestly identifies what’s at stake is crucial.

To wit: I am not in favor of “abortion.” I’m in favor of abortion rights, and I think it’s necessary, no matter how annoying, to always use that terminology.

I am not “Pro-Choice” (a hopelessly abstract, patently evasive, and therefore politically harmful slogan); I am against criminalizing women who terminate their pregnancies. This is not a question of an abstract “freedom to choose”; it’s a question of whether or not a woman has the concrete freedom to remove from her body whatever it is that’s in it, without being imprisoned for doing so.

I am not invested in denying that. or arguing whether or not, the fertilized egg/zygote/blastula/embryo/fetus is “a human life” The anti-abortion rights position is based on the notion that the answer to the “life” question dictates the answer to the criminalization question. But it does not, it is relatively easy to demonstrate that it does not, and most people, including many who are opposed to abortion, do not want it to.

Opposition to abortion can and should be—and, waiting to be recognized in many people, already is—broken away from opposition to abortion rights. That non sequitur, which the anti-abortion-rights movement has managed to gloss over, is its weakness, and the abortion-rights movement’s best bet is to focus on it, precisely and relentlessly.

Here, from an anti-abortion-rights demonstration in Libertyville, IL in 2005, is what I mean:

And here, I think (reluctantly giving credit where due), is the best exchange on the subject I’ve ever seen on mainstream media, with Chris Matthews interrogating Bishop Thomas Tobin in 2009 regarding the Bishop’s criticism of Rep. Patrick Kennedy’s support for abortion rights.

In this interview, Matthews zeroes right in on the core points: If you hesitate to punish a woman for having an abortion, that should be instructive to you. The only relevant question is: What should be the criminal penalty for a woman or girl even to have an abortion? If you know that advocating for imprisoning a woman who has an abortion will be rejected by most people—who may not like abortion or may think it’s immoral, but don’t think it is or should be a criminal offense—then you know your position is politically untenable, and you’re hiding it.

The points were spot on in Libertyville in 2005, on MSNBC in 2009, and they still are, here and now. The response to the Libertyville video from the Pro-Life Action League that sponsored the event is “instructive,” in precisely Matthews’s sense:


[The video] unwittingly dispels a common misperception. To wit, the absurd notion that vindictive pro-lifers are gleefully anticipating the day when they can begin rounding up women who have abortions and exact Torquemada-style justice upon them. The idea of punishing women who have abortions could not be further from pro-lifers’ minds …Pro-lifers’ real motivation is rooted in charity and compassion for unborn children and their mothers. This video … plainly shows that vengeance has no rightful place in pro-lifers’ minds…

When he asked her if she thought there should be a legal penalty for women who have abortions, [a longtime pro-life activist at the Libertyville demonstration] said:


“No, I believe she should be dealt with in a pastoral way, compassionately, and that the crime should be placed on the physician who is breaking the law and performing the abortion.”

So, the Pro-Life Action Leaguers could not have been more adamant that they oppose criminalizing women who have abortions. Like Bishop Tobin, they like to invoke the situation “before that disastrous decision of Roe v. Wade”—a legal regime in which abortionists would be penalized but women would not, and “certainly not with prison terms.”

That stance is repeated today by “national and state pro-life organizations, representing tens of millions of pro-life men, women and children across the country,” who declare, in an open letter: “let us be clear: We state unequivocally that any measure seeking to criminalize or punish women is not pro-life and we stand firmly opposed to such efforts.” [my italics]

Of course, it is now clear that doing away with the abortion right that Roe v. Wade introduced does not result in some “pastoral, compassionate” regime for pregnant women, but in exacting precisely the Torquemada-style justice upon them that was “the farthest thing” from most abortion-rights opponents minds. When Norfolk, Nebraska police track down a 17-year-old girl through her Facebook posts and bring a felony charge against her as an adult (and multiple felony charges against her mother) for acquiring and using abortifacient pills, when lawmakers in states like Louisiana and Idaho propose laws explicitly allowing women who have an abortion to be prosecuted for murder—well, Torquemada has nothing on the New Model Special Victims Units.

In Texas, 26-year-old Lizelle Herrera was arrested and charged with murder for self-induced abortion. In California, 29-year-old Adora Perez served four years in prison after giving birth to a stillborn son. And in Mississippi, Latice Fisher was jailed after losing her baby at 36 weeks after police found she’d searched for abortion information online. (Bloomberg)

Unfortunately, for those mainstream pro-life groups—and fortunately for us abortion-rights supporters, I think—there is a band of hard-core “abortion abolitionists,” who are not going to allow mainstream “pro-lifers” to avoid understanding what they have been and are doing by opposing abortion rights. Abolitionists will not stop insisting that mainstream pro-lifers must, if they oppose abortion, also oppose abortion rights and support criminalization of women who abort. The pro-lfers’ premise, they say, demands the abolitionists’ conclusion: conception = human life = fully protected person under criminal law. As Louisiana Rep. Danny McCormick insists: “a woman who has an abortion should be in the same legal position as a woman who takes the life of a child after birth” (or the life of an adult, for that matter). [my emphasis]

The hard-core abolitionists are in effect saying: “We have not just been opposing abortion for the past fifty years. We’ve not just been making an ethical argument about abortion; we have been demanding a legal prohibition of abortion rights. That means criminalizing, calling the force of law—the cops, the courts, and the prisons—on all responsible parties who undertake an abortion, and that necessarily includes the women, since they are competent, responsible actors who are not forced, but choose to terminate their pregnancies. Anything less would be dishonest and patronizing. If you don’t accept this, you do not understand what it means to oppose abortion rights, and need to decide whether you really do or not.”

The abolitionists, in other words, are playing the Chris Matthews role, post-Roe, from the other side of the issue, and we should join them from ours. We should do everything we can to encourage the split between hard-core legal abolitionists and mainstream ethical pro-lifers, and to encourage the latter to recognize and embrace, in a new way, the difference that always existed between their and the abolitionists’ ethico-legal position.

Abortion abolitionists are right in saying that opposing abortion rights means criminalizing women who abort. More mainstream pro-lifers were wrong in not recognizing that, and they must now resolve their confusion—either by recognizing and embracing that their consistently-stated position against criminalizing women means that, however they oppose abortion, they do not actually oppose abortion rights—indeed it is, in their own terms, “not pro-life” to do so—or by abandoning their own long-standing, unequivocal position and taking up the thumbscrews.

I know, one can say the mainstream pro-lifers repeated anti-criminalization position was always a ruse, meant to be abandoned once it helped clear the stage for inquisitorial legislation. And that it is certainly true for some pro-life leaders and organizations. But it’s also certainly true that it was a necessary ruse, because it was leading a lot of people to a place they did not want to go. Because, per old Chris, too many of those people “deep down…do not think it’s a criminal act to have an abortion. They may not like it. They may think it’s immoral. But they don’t think it’s criminal.” In opposition to Danny McCormick, they do not think “a woman who has an abortion should be in the same legal position as a woman who takes the life of a child after birth.”

In other words, there are a lot of—perhaps even most—people who think of themselves as “pro-life” who can come to see that their ethical objection to abortion does not require, and has actually never meant for them, opposing legal abortion rights. As obvious as it was to us, they did not (want to) see—even “unequivocally” rejected—that legally abolishing abortion rights would mean criminalizing women, and would produce effects at least as ethically objectionable to them. Concrete reality now forces them to confront that, and provides a key leverage point for the abortion-rights movement.

If this is not the case, if there are not many persuadable people, or if we give up on the process of persuading them—i.e., actual politics—we will never get secure national abortion rights. It’s definitely annoying to have to repeat the obvious to people who have not wanted to hear it, but nowhere is Thomas Sankara’s dictum more relevant: “We don’t have the right to say we are tired of explaining.” And if you want people to change their minds, best not to complain when they do.

When this guy—South Carolina state Rep. Neal Collins, who voted for six-week, so-called “heartbeat,” abortion ban—is starting to crack, the whole edifice can be made to crumble:

I know, one wants to smack people like Collins upside the head, and say “What the hell did you think you were voting for?” (As we might do to so many absurdly oblivious people—like, you know, “leftists” who support the “domestic terrorism” agenda.)

But if we’ve reached the point where so many people have been led politically to create policies they themselves reject, where they’ve been able to think of enacting a law as an ethical statement rather than a legal policy that criminalizes real people, “a symbolic vote against abortion rather than a very real threat to women,” that may be because they have not been consistently and clearly engaged, because there haven’t been enough Chris-Matthews moments at every level of social interaction. Engaging in frank, concrete discussions with all kinds of people all across the country is a pain in the ass. Much simpler to write off all “pro-lifers” as irredeemable “Christian fascists,” and just vote Blue no matter what.

This is Your Life

A lot of people preferred to avoid acknowledging the concrete reality of what’s involved in the specific choice of terminating a pregnancy, and keep the discourse in the realm of abstract “choice.” It was another example of the political delusion many leftists have, that they can ignore arguments

they find uncomfortable, as if their enemies—or even unconvinced but sympathetic people whom they can and should persuade—will let them. But pregnancy—the relation between a woman and the incipient life within her body—is a unique, concrete human situation that makes it not ridiculous to have religious or secular ethical qualms about abortion.

There’s no avoiding the ethical ambivalence involved in one day treating the zygote/blastula/embryo/fetus as a dispensable interruption in your life and a few years later (or before) handing out pictures of the sonogram and making sure it gets constant doses of Brahms and baby-talk. There’s no dismissing the ethical concerns regarding abortion for sex or race selection, for desirable genetic “appearance” traits, for organ-harvesting purposes, for all the new uses profitable biological technologies will invent to commodify the woman’s body and the zygote/blastula/embryo/fetus. The black and minority activists who express concerns because they know that, historically and now, many white people favor abortion rights for racist reasons, cannot be dismissed as “anti-woman.” The anti-war, anti-poverty, anti-death penalty, pro-social justice religious people who express concerns based on an anti-commodification, “seamless web of life” ethic—Yes, Virginia, I’ve known many of them—cannot be dismissed as “Christian fascists.”

As much as abortion-rights supporters may be loath to discuss it, there’s no avoiding that supporting abortion rights can reasonably be perceived as sanctioning killing an incipient human life. Hiding behind an abstract invocation of non-specific “choice”—what Sophie Lewis calls “the euphemistic, apologetic, placatory ‘pro-choice’ strategy”—to avoid that ethical problematic has not worked and will not work.

The assertion of “human life in the womb” must be frankly and effectively addressed—which, I emphasize, does not mean refuted. I agree wholeheartedly with Sophie Lewis’s recent essay in The Nation: “When “pro-life” forces agitate against feticide on the basis that it is killing, pro-abortion feminists should be able to acknowledge, without shame, that yes, of course it is.”

Supporters of a woman’s right to terminate her pregnancy, should not feel compelled to deny that an abortion is arguably killing something that’s arguably a human life, or to denigrate, or dismiss the possibility of talking to, anyone who believes that. They should point out that it’s inarguable that the pregnant woman whose body is carrying that something is a living human, in every possible sense of the word.

The answer to “It’s a human life” is not, “No, it isn’t and you’re a religious nut for saying so and I’ll try to shut you up if you do.” It’s: “Maybe. So what? Whatever it is, it’s in my body.”

The answer to the question: “Why should we allow you to kill a living organism?” is quite simple: “Because it’s in my body and I don’t want it there.“

The concrete images of the zygote/blastula/embryo/fetus are not to be denied, but countered with insistence on the equally concrete body of the woman. “Good for you for being so concerned about human life; now look and listen to the inarguably living human women who are carrying dead fetuses around in their womb, who are imprisoned and their families destroyed, who are dead from botched self-abortions, etc., because you thought the life of the zygote/blastula/embryo/fetus was more worthy of protection than theirs.”

Why should a woman not have the right to terminate a process that’s happening entirely inside her body? A process that takes over her body for nine months, has significant physical effects, and carries significant risks to her? Who, under what conditions, could possibly have the right to force her, with the threat of felony conviction and imprisonment, to undergo that with her body for nine months?

As Lewis says. “A desire not to be pregnant is sufficient reason in and of itself to terminate” a pregnancy. Why should a woman suffer criminal penalties for doing so?

“It’s a life” is not the answer. As “pro-lifers” like Rep. Collins are starting to realize, an arguable ethical claim about life of the zygote/blastula/embryo/fetus does not dictate a criminal policy toward the inarguably human person whose body is its host. There is no reason any such organism should be entitled to more rights under the law over the body of a fully enfranchised, undeniably human and alive woman than the woman herself.

Indeed, since we live in a polity that claims to honor bodily autonomy—the right of every person—women equally as men—to control what happens to and in his/her body, why should there even be a need to establish some special right about that? Isn’t it entirely natural that a woman should be able to control her own body?

In a polity like we once, and some still do, live in, where a woman’s body was explicitly not under her control, but her husband’s, or her cleric’s, the answer to that question would be easy. And, while some may argue that such a paradigm is implicit in the anti-abortion rights movement, it is not the dominant explicit argument, and does not carry the day politically. In our polity, anti-abortion rights advocates do not try to persuade people to support criminalizing abortion by arguing that women are subservient to men. They try to persuade people to criminalize terminating a pregnancy, abolish a woman’s bodily autonomy, and force her to surrender her body for nine months, because the zygote/blastula/embryo/fetus is alive, and women are subservient to that. From the moment of conception, the product of conception is, in effect, given superior legal rights over the pregnant person who is its host.

Again, an unforced legal-criminal conclusion from an arguable ethical assertion. Why should the pregnant woman—in every politico-legal sense fully enfranchised and “human”— not have the legal dispositional right to decide what she carries around in her body, no matter how arguably “human” that entity is, and whatever anyone else thinks of that choice morally.

For abortion-rights supporters, she does. For them, and for anyone who values bodily autonomy, it is no different than anyone having the right to refuse to graft one’s fully human and alive two-month- or twenty-year-old child, or forty-year-old brother, on their back (or even, less dramatically, give them a blood transfusion every day) for nine months, if it were necessary to save that person’s life.

You can ethically excoriate such a person as a rotten, selfish killer for refusing to do that, but, as most people would recognize, that does not mean they should be made criminally liable for homicide, murder one, if they decline. Because bodily autonomy is not something to be legally dismissed so easily. (And those who have been led to think otherwise by some recent ideological campaigns are in the “What did you think would come of that?” company with Rep. Collins above, as I’ve argued elsewhere.)

If you think that’s a far-fetched example, consider the case of the man who was pregnant for thirty-six years. Yup, a man (no fancy-pants transgender stuff needed in this case) who, unaware, carried in his body a “living” creature—his twin brother—who had “survive[d] as a parasite” for thirty-six years. This was a natural product of conception, at least as completely “human” as a six-week-old embryo. It had “feet and hands that were very developed” and “quite long” fingernails. As the doctor who removed it said: “I could shake hands with” it.

This is a case of fetus in fetu, where a fetus gets trapped inside its twin and “survives as a parasite even past birth.” Unusual, but it makes the point in exactly the gruesome way it needs to be made. This is a completely “innocent” creature that grew and “lived” in a man’s body for 36 years, only to be rudely cut into pieces and “killed” by his doctors and removed. Doesn’t it “deserve to live” as much as a blastosphere? Can anyone who wants to criminalize abortion on the “life-begins-at-conception” principle not also want to criminalize this forcible removal and destruction of a 36-year-old human life?

Anyone who does not want to criminalize this pregnant man and his doctors is acknowledging that the concrete realities of bodily autonomy make it such that you cannot simply criminalize the act of terminating a pregnancy, no matter when, ethically, “life” begins.

Or ends.

Because this 36-year-old fetus in a pregnant man raises the question: When does it end? When does the human host’s criminal liability for expelling the parasite from its body end? Does the arguably living product of conception have an overriding legal right over the inarguably living host whose body it’s in forever? Or is there some point, after the moment of conception but before leaving the host’s body—whether 36 months or 36 years—at which the host person has the legal right to assert control over his or her body, no matter how genetically human or developed the parasite entity is?

Indeed, as unusual as this pregnant man example is, it is, in fact, not dissimilar to precisely the plight of pregnant women that Rep. Collins had to confront—women who are forced, by the laws he and his pro-life-but-unequivocally-against-criminalizing-women friends have passed, to carry their dead or skull-less fetuses until these living organisms decide to leave the body.

This example shows that it is realistically impossible not to admit there must be some end of the entity’s legal priority over the host. And if the ethical precept “life-begins-at-conception” cannot tell you when legal, criminally liable “life” ends, it can’t tell you when it begins, either.

Many unequivocally-against-criminalizing-women “pro-lifers” are going to have to realize that ethical claims about the zygote/blastula/embryo/fetus are not so simple, that any ethical claim does not necessarily dictate criminal policy, and that it’s impossible legally, politically, and ethically not to recognize a different criminal liability for terminating a pregnancy at some point between conception and birth than for killing a child outside the women’s body. They will find themselves recognizing that, even if ethical life begins at conception, politico-legal, criminally liable “life” begins somewhere else—if not after birth, no sooner than somewhere between conception and birth. They will, in other words, find themselves supporting—effectively arguing for!—exactly the principle and framework of the “disastrous decision of Roe v. Wade” they fought so hard to annul. Because Roe v. Wade was itself a compromise on bodily autonomy. Abortion rights are dead! Long live abortion rights!

They will have to choose between one thing that “could not be further from their minds” or another.

I think that logic, which derives from the concrete cases we are facing, can—and if we are to achieve secure national abortion rights, must—prompt many unequivocally-against-criminalizing-women, casual “pro-lifers” to re-think their explicitly expressed, but in deed denied, opposition to abortion rights.

Due Date

I know it will, unfortunately, tempt some to recant the position they’ve always held and expressed, and join the hard-liners in insisting that “the full personhood of an unborn life [at all stages of pregnancy] must entail equal protection under the law that is afforded to all other persons in the U.S. Constitution” (my italics and interpolation). Well, then, we can insist that they must also raise their voices to demand that the zygote/blastula/embryo get child support payments, citizenship status, census enumeration, tax dependency status, etc.

Anyone who does not accept this, for any reason, is, in fact, making a legal distinction between the organism that exists within the mother’s body and a full-born baby or a legal “person” of any age. They are in fact defining the zygote/blastula/embryo/fetus as, at some stage, not as fully legally and politically enfranchised as a child or legal “person” of any age. They have acknowledged that, even if biological, spiritual, or ethical “life” begins at conception, fully enfranchised legal life does not. They voided “life begins at conception” as an argument against giving the pregnant woman a distinct legal, criminal law right over whatever the entity is in her body.

If it’s not legally murder one from moment one, it’s something else at some other time that has to be determined by a social discussion that takes into account the unique, concrete circumstances of pregnancy, starting with bodily autonomy.

And that is the only issue here—not whether the developing organism is a “life,” or whether it’s immoral to stop it from growing, but whether the woman in whose body it exists must be held criminally liable for removing it from her body. Hey, pro-lifer, a woman has at least as much right to decline to surrender her body to the zygote/blastula/embryo/fetus for nine months as you do to decline to offer it the all the social, political, and economic support to which a fully enfranchised legal “person” is entitled.

We will not persuade everyone, but we can and must persuade enough. We must stand our ground with a consistent, forthright argument, as well as fierce, confrontational political action, including civil disobedience. Let’s rub their noses in, refusing to ignore or accept, the criminal law shit that anti-abortion-rights forces have gotten themselves as well as pregnant women into. I support all kinds of mass action—including fighting the cops—to refuse arrests and incarceration of women who get, and doctors who provide, abortions. Make them see and have to fight for, every day in every state, all the necessary consequences of the legal subjugation of a woman to the zygote/blastula/embryo/fetus in her body—consequences that most people, including many of them, do not want, and have defined as “not pro-life.”

The bottom line is this: The cops and the courts either prevent women from having abortions or they prevent people from preventing women having abortions. There’s a hard battle ahead, and abortion-rights supporters will have to wage an effective ideological and political fight in every town, county, and state to securely and nationally win—to reverse the defeat they’ve suffered in—that battle, on their terms.

Roe is gone. The Supreme Court is not our savior. The Democratic Party is a fickle friend. As Sophie Lewis says, “the euphemistic, apologetic, placatory ‘pro-choice’ strategy hasn’t worked out.” It’s time to “risk coming out for what we actually want,” and, per Samuel Moyn, “embrace democracy and its risks.”

The fight for abortion rights can only be won with the best tools, none of which is more effective than the clear and consistent argument so well summarized in: My Body, My Choice!


Jim Kavanagh edits The Polemicist. Follow him on Twitter @ThePolemicist_.

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