Traditionally, the U.S. “pro-life” movement has generally sought to criminalize abortion providers but not the women who have abortions. The theory, as I understand it, is that a woman experiencing an unwanted pregnancy is in crisis and needs support and compassion rather than punishment. Though they oppose abortion, then, such advocates recognize that for the woman, ending her pregnancy is quite different from what it is for third parties like doctors and nurses. The refusal to target women for criminal penalties thus implicitly acknowledges that the burden of an unplanned pregnancy on the pregnant woman is unique and therefore calls for mercy.
A new anti-abortion movement, however, has grown up like a noxious weed in the fertile soil of misogyny. This movement is eager to criminalize the women who seek an abortion and show no mercy for those caught in what I would call the internal prison of unwanted pregnancy. I suspect that some are “incels” (the “involuntarily celibate” men who gravitate toward violence when women have the gall to find these men unappetizing and to refuse to have sex with them). They fail to distinguish between abortion providers and recipients. Just as women have an obligation to be sexually available to the incels, women apparently must also remain pregnant against their will, even when someone forced them to have sex and thus to conceive the pregnancy that they now desperately want to terminate. The incels and allies who want to punish women have no understanding of the pregnant woman’s uniquely burdensome situation or simply do not care. In Louisiana, such characters introduced a bill that would have classified abortion as murder—by the pregnant woman—and thus made her eligible for the death penalty. The bill was pulled in response to objections from traditionalists, but it seems imprudent to assume that the highly emotional crowd that supported such legislation will just quietly go away now. This column will consider the significance of this new approach to being “pro-life.”
All Is Relative
It is important, even as more virulent strains of the pro-forced-pregnancy-and-birth movement emerge, that we remember to fight the virus in all its forms. It is far too easy to regard a monster as harmless when a mutated and more dangerous form comes onto the scene. Those who want to criminally prosecute doctors and nurses who perform abortions are engaged in a harmful pursuit. They wish to force women to remain pregnant by threatening with criminal prosecution those who would help their patients escape their predicament. These “pro-life” figures would, if they could, punish doctors in free states for helping women from reproductive servitude states to relieve their bodies of occupation by an unwanted biological process. The traditional “pro-life” movement is thus no friend to women experiencing an unwanted pregnancy.
Yet the newer strain of the misogynist “pro-life” virus is even more harmful to women than the traditional one. Instead of recognizing the pain and the many intense burdens that pregnancy places upon a woman, the new strain sees the woman as the primary villain to attack. We have always known some of these creeps as they yell “slut” and “keep your legs together” during their protests at abortion clinics. For these individuals, who seem to have multiplied in number over the past few years, the woman is at least as bad as the people who help her, and the fact that she is suffering through an unwanted pregnancy is utterly insignificant to them. They refuse to recognize what unwanted pregnancy does and risks for the woman—or trans man or nonbinary person.
Readers who have followed my Dorf On Law posts know that Justice Samuel Alito (SA), author of the majority opinion in Dobbs v. Jackson Women’s Health Organization, also says nothing about the physical and psychological burdens that an unwanted pregnancy places on its victim. Not even one sentence acknowledges what an abortion prohibition inflicts on women. SA is more interested in giving as broad an authorization as he can for states and the federal government to be able to compel women into reproductive servitude from the “moment” of fertilization, if there is even a “rational basis” for the gender servitude, the most toothless and undemanding standard known to constitutional law.
Though SA probably does not identify as an incel, I would readily classify him with the more virulent form of the misogynist reproductive servitude virus. In an opinion chock full of reprehensible dicta, we find nothing to suggest that the people’s “elected representative” could not criminalize pregnant women seeking abortions. After reading Dobbs, the most toxic misogynists thus had the green light they sought to lock up women for terminating even the earliest pregnancies resulting from rape or incest. For ease of reference, I would refer to these toxic misogynists and incels as “Trump misogynists.” Recall that when the newly “pro-life” candidate Trump was running for president and was asked whether he would punish women themselves for having an abortion, he initially said yes. The traditionalists who ultimately put him in office then made it known that that was not the official “pro-life” position, and Trump’s staff walked it back. Now that the party belongs to this enfant terrible who throws food at the wall when he doesn’t get his way, I suspect he would return to his original answer.
Will any woman receive the death penalty for having an abortion? I do not know. But the newly ascendant reproductive servitude movement would favor it. For purposes of assessing blame, their ire is with the woman who first rejected their advances and now rejects the not-so-benign growth that intrudes upon their bodies and their liberty. In a viral video, one such incel can be heard saying recently to pro-choice protesters, that “[y]ou have no choice. Not your body, not your choice, your body is mine and you’re having my baby.” The man was wearing an “America First” hat. That statement is startlingly transparent about what is truly happening when people like SA and Trump seek to “protect” reproductive tissue in the womb (which they typically call “the womb” rather than “her womb,” for obvious reasons). It really has little to do with babies. It is about turning women into public property subject to rape (as SA’s frequently-quoted hero, Sir Matthew Hale, applauds) and then to reproductive servitude for the community. Fortunately, women are angry and will resist the world order wrought by those who endorse violence against women.
I do prefer the traditionalists, but I cannot be confident that their softer approach is much more than packaging. Sadly, we will likely find out soon.