On abortion, it’s bodily autonomy. That’s what Roe v. Wade got wrong, and why it’s been overturned

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Everyone is shouting right now. All my friends are telling me what I have to do, what I ought to do, what I should have done, regarding the Supreme Court’s ruling on abortion.

In my experience, shouting doesn’t help. No one listens when you are shouting, and shouting never lasts very long.

The question is what to do now in the cold light of day, and what the logic is. And bodily autonomy is central.

What I believe

If you read this, you should know where I stand.

I have a commonsense belief that people ought to control their own bodies. That control is a fundamental right of all humans.

Those who disagree on abortion believe that the potential human life represented by a pregnancy has rights as well. If you accept that, there would be a conflict between the rights of the potential life and the rights of the human carrying it. By prioritizing the rights of the potential life, you turn the mother into a slave. People are not slaves to zygotes.

If you’re not interested in engaging on the logic of that belief, please stop reading and don’t comment, either. I cannot change your mind — and you cannot change mine — and there is no point in the discussion if you’re not willing to think about it.

The problem with Roe v. Wade

Roe v. Wade, the landmark decision from nearly 50 years ago that enshrined the right to abortion, was a poor ruling.

On the one hand, it ensured a limited amount of bodily autonomy for pregnant people by striking down state abortion laws except within certain limits.

But it was flawed because it rooted that protection in a poorly defined right of privacy that appears nowhere in the constitution. On top of that, it created out of whole cloth a trimester framework that nobody asked for. It was a jury-rigged construct from the beginning, more akin to legislation than a court judgment.

It was also unavoidably paternalistic in that it defended the right of the mother and her doctor to decide what to do (and the doctor, of course, is always referred to as “he”). It refers to the word “medical” 85 times. The word “choose,” in the context of the choice of the mother, appears only twice.

As such, it was vulnerable. And if you read Justice Thomas Alito’s decision striking it down, you can see how he carefully dismembers it, one weakness at a time.

Ruth Bader Ginsburg understood that weakness. She knew this was coming. As she said:

Suppose the Court had stopped there, rightly declaring unconstitutional the most extreme brand of law in the nation, and had not gone on, as the Court did in Roe, to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force. Would there have been the twenty-year controversy we have witnessed, reflected most recently in the Supreme Court’s splintered decision in Planned Parenthood v. Casey? A less encompassing Roe, one that merely struck down the extreme Texas law and went no further on that day, I believe and will summarize why, might have served to reduce rather than to fuel controversy.

It appears that she believed it would have been easier for the public to understand why the Constitution protected abortion rights if the matter had been framed as one of equal protection rather than privacy — that it was unconstitutional for a state to compel a woman to a life of parenthood against her will.

As Justice Ginsburg said, “My criticism of Roe is that it seemed to have stopped the momentum on the side of change” and that it gave “opponents a target to aim at relentlessly.”

Seeing where we are now, it’s hard to disagree.

Bodily autonomy is fundamental

It is a fundamental concept: you should be able to do what you wish with your body.

Assault, for example, is illegal because it means someone has attacked your body, and they have no right to do that. Kidnapping similarly is an attack or your bodily freedom. Rape is a crime since it is a violation of your control of your own body.

Is there a right to control your body in the Constitution? Not in the original document. And not in the Bill of Rights. I suspect the authors of those documents considered it too obvious to state. And there’s a little problem they had. At the time, the rights of women were limited. And of course, the rights of enslaved people were nonexistent.

But the Thirteenth Amendment — the one that ended slavery — applies. It says:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

This Amendment exists to make it clear that it is not possible to force people (except felons) to do things against their will, or to forcibly take control of their bodies.

In the Thirteenth Amendment granted enslaved people control over their own bodies. And the history of the Twentieth Century is one of steadily recognizing that women, as well, have freedom to make their own choices and control their own fates, including what happens with their bodies.

The Roe v. Wade decision shied away from this, explicitly:

In fact, it is not clear to us that the claim asserted by some amici [that is, people who submitted briefs to the court] that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions. 

Once you accept the concept of bodily autonomy, the question becomes much clearer. It is no longer some obscure “implicit right” to privacy in the constitution. To argue against this, you must decide where you believe the rights of the pregnant person to their own body end. And that is how we should frame the argument now.

Libertarian irony

Once you start to think about things this way, it becomes startling that a traditional Republican perspective, rooted in the idea that people should have the liberty to do whatever they want except in cases of extreme damage to others, would prohibit abortion.

The traditional Republican idea says that you should be able to own a gun, start a business, choose what to eat, have no undue restrictions on how you raise your children, pay as little tax for collective goods as possible, and basically have libertarian freedom to whatever extent you can.

Logically, this concept would enable you to also marry who you want, identify as whatever gender you want, and have control over your own body.

I find it mystifying that the party that is constantly bellowing about freedom and liberty has as part of its platform a fundamental desire to restrict the freedom and liberty of pregnant people. Without those positions, the Republicans lose the support of evangelical Christians, of course.

But if you are truly the party of freedom and liberty, then you should support as few abortion laws as possible.

The logical inconsistency of the law in Oklahoma

Let’s examine the case of the new abortion law in Oklahoma in the context of a person’s right to bodily autonomy.

The law says that abortion is illegal starting from the moment of conception. That is, the rights of a fertilized zygote are prioritized over the rights of the person who is pregnant.

Oklahoma governor Kevin Stitt put it this way: “From the moment life begins at conception is when we have a responsibility as human beings to do everything we can to protect that baby’s life and the life of the mother. That is what I believe and that is what the majority of Oklahomans believe.”

There are exceptions. If the pregnancy results from incest or rape and the victim has reported it, abortion is permissible. The law permits morning after pills such as Plan B that prevent implantation of the fertilized egg as well as contraception, such as IUDs, that have the same effect.

If the fertilized egg has rights, why does such an egg lose those rights if it is the product of rape or incest? If Plan B and IUDs prevent implantation, are they not denying the right of the fertilized egg to survive?

Those exceptions exist because the position of the crafters of this law are not consistent. Outlawing abortion is popular with conservatives. Forcing rape victims and incest victims to bear children is not. Outlawing forms of contraception is inconvenient, so the law does not do that.

There is an argument to make about when the rights of a fetus become important enough to consider. But that is not the argument happening in these states. They want to “outlaw abortion” because that’s what they’ve been promising religious conservatives for decades.

What to do now?

If you believe, as I do, that each person, regardless of gender or pregnancy, has a right to control their own body — including a right to have an abortion — then what should you do?

Certainly, if you choose to help those who are pregnant in states with restrictive laws to have control of their bodies by traveling to other states, you can certainly do that. Here is one nonprofit that does that.

But as far as the politics is concerned, I think those of us in favor of abortion rights should stick 100% the question of bodily autonomy.

What about rape or incest? We’re not talking about unusual exceptions, we’re talking about bodily autonomy.

What if the fetus is developmentally impaired? Not the point, we’re talking about bodily autonomy.

What about a danger to the mother’s life? Well, sure, but that is part of bodily autonomy.

Where is viability? I think this isn’t about that, it’s about bodily autonomy.

Are IUDs the same as an abortion? Not the right question. But both are about bodily autonomy.

What if the person wants an abortion for purely selfish reasons? None of your business. It’s their body. Bodily autonomy.

In the long run, the biggest opportunity for change is at the ballot box. And this is where the political argument needs to go. If you are arguing about viability and reasons and rape and choice, you are arguing on the terms of people who deny bodily autonomy. The response is, “You want to deny women control over their own bodies. That is wrong.”

What happens next? There is nothing that would stop the creation of a national law ensuring and regulating the availability of abortion. There is nothing causing this procedure to be regulated by states except the absence of a national law.

The passage of such a law would require Democratic majorities in the House and the Senate (and given the squeamish nature of some of the Democratic senators, a larger Senate majority than the Democrats now have). It would also require abolishing the filibuster. If you want that to happen, you should campaign for Democratic senators and representatives in swing states and districts and participate in get-out-the-vote activities in those states and districts through organizations like Swing Left. (You can do this through text messages and emails and phone calls, it doesn’t mean flying in to another state.)

Naturally, you can participate in the same sorts of activities locally to change or challenge abortion laws in your own state, if you are in a state where abortion rights are potentially under threat. This map shows which states those are. If you live in Pennsylvania, Florida, or Arizona, the people you vote for now and the actions you take could make a big difference in what is about to happen.

For conservatives, abortion created a number of single-issue voters. Now that the rules have changed, there may be a flood of single-issue voters pushing in the other direction. Bodily autonomy is what they need to focus on. And that might make all the difference in the midterm elections.

Regarding comments: I will delete comments that insult or demean me or any other commenter. I will delete comments that refer to clumps of cells as babies. Be nice or go away.

15 responses to “On abortion, it’s bodily autonomy. That’s what Roe v. Wade got wrong, and why it’s been overturned

  1. You might be on to something. Republicans routinely coopt Democratic talking points and phrases:
    “Trump’s ‘crimes’ are fake news.”
    “Masks are junk science.”
    “My body, my choice” (for vaccinations, but not for abortions).
    Time to giveth back. What right could be more conservative than bodily autonomy?
    “I had an abortion. It’s none of your business why.” https://www.washingtonpost.com/opinions/i-had-an-abortion-why-is-none-of-your-business/2019/05/27/c8757df8-7e64-11e9-8ede-f4abf521ef17_story.html

  2. I agree with this approach and have wanted some case to take on exactly this problem with RvW. No one wanted to touch it and frankly too many people benefited from the fundraising around it. The fact that the Right without intentional irony co-opted “my body, my choice” during the height of the pandemic is evidence that they agree that body autonomy is essential.

  3. So interesting, as always, Mr. Bernoff.

    A clarification: Libertarians believe “Recognizing that abortion is a sensitive issue and that people can hold good-faith views on all sides, we believe that government should be kept out of the matter, leaving the question to each person for their conscientious consideration,” <– from their manifesto or whatever it's called. There's a pretty significant difference between being a "Libertarian" and a "Republican".

  4. Brilliant analysis, and I totally agree. Sure, it pushes buttons to talk about rape and incest, but that’s not the point and never has been. It’s totally about control of another person, to keep them in a position of weakness. If it was really about the life of the fetus, they wouldn’t be trying to ban contraceptives next, as they’ve already announced. If a person can’t take steps to prevent pregnancy by using contraceptives, and they can’t take steps to end a pregnancy once it occurs, then they can just stay home pregnant and barefoot, bearing way too many children to feed and care for. I’m way past the age where abortion is ever going to be an issue for me, but my body will always be mine, and I should be the only one exercising control over it. And that goes for everybody.

  5. My father was a staunch old-school Republican and Christian who was pro-choice because the government should stay out of such matters. I believe “bodily autonomy” would work for him.. He also believed strongly in the separation of church and state and would be appalled at the intermingling by those who have taken his grand old party in a new and egregious (my word) direction. I miss him – we had lengthy discussions and debates on just such topics and respected each other’s opinions.

  6. For nearly 50 years my position on abortion law reform, as a bloke living in Australia, has been that when it is men who get pregnant, they can have a say on the issue.

    In the meantime, we should leave it to the women.

    And somewhere along the way I plagiarised some other person’s line, that if it were men who got pregnant, abortion would not only be legal, it would be a sacrament.

  7. Fine analysis, Josh, and I appreciate the RBG reminder. Readers of the WSJ have likewise benefited from its insight in recent days about the hysteria and often inaccurate reporting of the SCOTUS opinion. Had RvW been properly decided we wouldn’t be where we are today and, perhaps, be further along in the resolution of these matters across state lines.

    People of good conscience can disagree. Like most of the unresolved moral controversies confronting our nation – immigration likewise comes to mind, we don’t do well as a country to sweep strong feelings under the carpet. I fall into the Clinton camp; I believe it was he who said, “abortion should be safe, legal and rare”. One has to wonder, though, had we focused on supporting women constructively 50 years ago, whether 60 million potential lives, ~18% of our current population, would have been cut-short.

  8. Thank you, Josh. I’m particularly grateful for your ability to identify the core issues and provide clarity with this. Like many others, I was flooded with emotions, but mostly anger, when the SCOTUS decision was formally released. Then I felt astonished when male friends of mine who lean Republican but haven’t flattened their backsides on a church pew in years, and who cried foul as vaccine mandates loomed, saw no problem with it. Why? Partly because the 10th amendment has been drilled into their heads as the moral basis of their views on the role of government since the Reagan era. But I believe history will show that they are on the wrong side of this one.

  9. What seems to be problematic is that those who oppose the Republicans don’t always use sane and progressive arguments like yours, but rather appeal to fear or put forward other inconsequential or confusing positions.

    It’s past due for a third and fourth political parties, none of the existing are sane.

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