- Close Reading of Roe v Wade from May 15, 2022, 7:28am
As a quick note, I originally intended to just sneak this in to the upcoming Entropy Arbitrage newsletter for September. However, the timeliness and the length made saving it for e-mail seem like a waste. Plus, I wrote an entire post about how those of us with platforms need to use those platforms to speak out about this exact issue. That all probably also explains why it’s not an early morning post, like on most Sundays.
So, as a content advisory, if you’re uncomfortable reading about menstruation, abortions, or…I don’t know, Texas, you might want to prepare for or skip reading this post. Feel free to spend the day feeling like this guy.
Other possible considerations: This post is centered entirely on the United States, so those readers coming from the rest of the world may not want to care. Also, because this was originally going to the mailing list, I expected to have a couple more weeks to edit and polish this, rather than kicking it out in less than a week, so there’s a good chance parts of this will be muddled.
If you’re planning to comment, make sure that you understand the code of conduct, first. Your desire to parrot what you read on some right-wing (“well actually, I consider myself more of a centrist”) website does not mean that you have a right to be taken seriously, given a platform, or listened to. As I’ve joked about before, you must be this mature to participate in the discussion, because this is a conversation for adults, not mewling children who wish an abusive father-figure would just tell everybody what to do.
So, that out of the way…
At the start of the month, a concerted attack on bodily autonomy in Texas came to a temporary conclusion. The “shell game” is that the law disclaims responsibility to avoid getting sued, and the Supreme Court—because the majority were appointed for their openly misogynist views—pretended that law was too complicated for them. Thus, Texas now has a ban on abortions “after six weeks.”
My Own Biases
Just so everybody knows where I’m coming from, here, I’ll quickly give some vague nods at my background.
I have had people in my life who lived through a sexual assault, and felt that they had to bring the resulting babies to term and raise it. None of the children had the upbringing that they deserved.
As much as people who are opposed to abortion want to recommend putting the baby up for adoption, the fact of the matter is that nobody—certainly not the “pro-life” crowd—wants to adopt some random poor kid. The overwhelming majority are shuffled through and failed by the fostering system, where they’re expected to “pull themselves up by their bootstraps.”
I don’t care when “life” begins, because I kill bugs and am not (yet) opposed to eating meat. I care when humanity, personality, and citizenship begin, and none of those begin anywhere near conception. If you’re going to lecture me about souls, you had better be prepared to defend your record on protecting the lives of every single human being on Earth; if you’re willing to allow anyone to die, then you aren’t allowed to care about a few dozen cells.
A person’s body must be their own, or else no other liberties make sense.
Finally, joking about how this looks like dystopian fiction (The Handmaid’s Tale, for example) isn’t funny, because the entire point of any credible dystopian fiction is to warn people about what might be coming, given certain trends. Margaret Atwood mildly exaggerated what she saw in 1980; she did not magically predict the future through a big-budget TV series.
The Origins of This Nonsense
We can look at this right-wing obsession with controlling women from two angles.
The first angle is ancient. When people began to settle down into homes, those homes were divided by family. And this is where we start to see indications of women being pushed out of normal society and subject to inane restrictions, because men—who like everybody else were once just part of a communal tribe or clan—suddenly didn’t want to be caught raising a child who wasn’t a direct relative. You can solve that problem the easy way—teaching men that genetics doesn’t make a family—or you can solve it the dumb way of turning women’s reproductive system into a puzzle to be solved.
This choice explains society’s weird obsession with virginity (which has no accepted definition), prostitution, birth control, and abortion: Once you insist that men have a right to a family with constrained genetics, any hint that any woman might have sex for any other purpose but benefiting the man who “claims” her is suspect. Thus, society can justify policing a woman’s entire sexual history.
This choice has also caused society no end of grief, of course. We lost access to approximately half of all ideas of how to solve problems, because women’s ideas are presumed to be inferior to justify discouraging them from entering the workforce where they might meet men. Men are far more likely to die on the job, because women are refused for or harassed from dangerous jobs. And misogyny spills over into racism—oppressing to protect the “purity” of women—homophobia, and transphobia.
The other angle is that organized anti-abortion activism didn’t exist—anywhere—until after 1970. In the United States, there were occasional anti-abortion laws, but there was no movement until after Roe v Wade was decided. It’s the exact definition of wedge politics, in this case demonizing feminism and women in general to galvanize voters. And, because we have thousands of years’ worth of practice at imagining women as lower beings that need to be controlled—consider the origins of terms like bitch or feisty—the wedge works to separate out people who think that men need to have authority over women’s reproductive systems in order for society to function.
Six Weeks from When, Exactly?
Getting back on track, the new Texas law effectively bans abortions after six weeks of pregnancy. That sounds reasonable enough, because they’ll happily show you what an embryo looks like after six weeks. How they interpret that picture is deliberately, but it seems like a reasonable position.
Specifically, the clock on the six weeks doesn’t start from conception, like they claim and as the pictures would lead a person to believe. No, the clock starts from the last menstruation (“period”) that the pregnant person had. When people say that six weeks is before many women (or assorted transgender folks who might have a uterus) know they’re pregnant, they’re talking about the following potential timeline.
- 0 days: The person has their period.
- Anywhere from 1 to 27 days: The person has sex, maybe—since the Texas law has no exceptions to the restriction—even under duress, by force, or otherwise not voluntarily.
- 28 days: The person might expect their next period, if they’re keeping track, assuming that they typically come regularly.
- Despite the common term, periods aren’t necessarily regular, and how regular they are can easily change based on stress, nutrition, and other factors, so the next step is to wait a few days to make sure it’s not happening, maybe a week.
- 35 days: Since their period has probably been missed, the person now gets a pregnancy test.
- An over-the-counter test is a start, but they’re not reliable enough to be sure, when the stakes are this high.
- 36 days: With a positive convenience-store pregnancy test, the person schedules an appointment with their doctor.
We’ve gone through more than five out of the six weeks, you’ll notice, and the person still isn’t sure they’re pregnant, just that their urine shows markers for a common proxy. Of the six days remaining on the calendar, the doctor’s office probably won’t have an immediate appointment open, so that’s another day or two, maybe more, given the ongoing pandemic. Then add another day or two to get the professional test results. That potentially leaves a single day to schedule and terminate a pregnancy that might have only been conceived two weeks prior.
This timeline also assumes that all human menstruation happens on a strict 28-day cycle, with no people stretching to over 35 days, as actually does happen. So, adjust the schedule accordingly. If a person is generally on the high side of the time between periods, and the person is sick or under stress, delaying their period, it’s not a huge stretch to imagine a person being considered six weeks pregnant before they even become pregnant at all; it’s an edge case, sure, but it’s not impossible.
So, this is bad law, based on a complete ignorance of—or disinterest in—how women’s bodies work.
The Rest of the Iceberg
Just to be clear, the law is worse than that. The entire legal structure around it basically insists that the Constitution isn’t relevant, if authorities can find the right way to phrase things. Their claim is that, because they’re only paying random volunteer civilians to sue everybody involved, that they don’t have any responsibility for the program, even though it’s obviously their money and direction.
Comic book fans have debated this sort of goofy legal framework for decades: If Batman visits police administrators to exchange information, and leaves the criminals that he finds for the Gotham City Police Department to process, then the GCPD is probably on the hook every time that Batman violates somebody’s civil liberties. He’s an agent of the state. The department has to be liable, otherwise the city council could just disband its police department and pay former officers bounties, and then they can keep their income while beating false confessions out of innocent people…and that makes no sense on any level.
Likewise, none of these vigilantes who are bringing the lawsuits to get the bounty have any standing in such a case. How is “Texan Bruce Wayne” harmed by the Uber driver who brought the patient home from the clinic? Unless it’s their baby, and he needs an heir to maintain the continuity of his empire or whatever high-fantasy prophecy nonsense we feel like spinning, here, how is a random vigilante harmed by any abortion at all? I mean, sure, maybe you’ve come from the future to prevent your mother from aborting you, but…that’s an edge case, and…you should probably talk to a doctor.
If the law gives you standing to bring the suit, or empowers you to bring the suit on behalf of someone with standing, then it’s the state enforcing the law. Of course, states don’t have standing to bring those cases, either.
In any case, my point is that—if allowed to stand—the template that this law creates allows states and municipalities to outlaw any behavior. Pay a bounty to anybody bringing a lawsuit against any individual suing because they claim that their civil liberties have been infringed, and the local government can do whatever it pleases, by these rules. I’m exaggerating the kinds of laws for dramatic effect, but I would be prepared for laws attempting to roll back same-sex marriage, transgender rights, and possibly wearing masks in public in the next year or two.
Maybe worse in the long term, this directly undermines faith in the Supreme Court, because the same people who essentially bought at least four of the current Justices also wrote a law just convoluted enough to give those same justices plausible deniability in refusing to block it. The law is obviously not Constitutional, but Brett Kavanaugh is more interested in the loophole than his job, because that’s what he was seated to do.
Maybe Y’All Can Incorporate Your Uteri…
Exposing that it has nothing to do with “life,” by the way, the law has no interest in regulating fertility clinics, which routinely dispose of embryos months after conception, because they’re no longer needed. This is a rare issue where people have strongly held religious beliefs—that, incidentally, have nothing to do with the actual teachings of any religion—unless it would affect a business’s profit margins. The only member of the Supreme Court who thinks that fertility clinics should be subject to regulation is Amy Coney Barrett, and people from across the political spectrum inexplicably think that makes her an extremist, when it’s actually the more consistent and less misogynist view.
However, the law does empower would-be vigilantes to sue anybody that they suspect might have assisted a woman—the goal is to harm women—to get an abortion, in an attempt to frighten everybody from the doctor performing the procedure to the bus driver servicing the route to donors to charities that help people who can’t bring a pregnancy to term.
So, you can’t have an abortion to protect your life, but you can incinerate dozens of human embryos at a time—industrialized abortion—because the parents stopped paying you to store them. No vigilantes will show up to sue you, because there’s no fleshy wrapper around the embryos to harass. I honestly don’t know if there’s a solution in there; maybe every uterus in Texas is an independent, low-budget fertility clinic, and the abortions are just necessary to ensure that future clients can have access.
Regardless of how we get around this, people will die. Unwanted children will grow up under terrible conditions, either with parents who don’t want them, or parented by the state. Most of these people will be from poor and minority groups, since wealthy people can afford faster testing, bribery to falsify records, and trips out of state when needed.
However, while this is a disaster in the short term, it might be good in the long term, if the people who care about abortion rights can come together to make the right demands.
What Is Roe v Wade?
When you actually read through it, Roe v Wade is bad case law for the purpose. The decision…
- Rambles on endlessly about population growth,
- Preemptively chides the reader for getting emotional,
- Raises the possibility that the woman behind the “Jane Roe” pseudonym might be entirely fictional by defensively assuring us that she’s not when nobody has made that accusation,
- Gives the entire history of the case before getting to the decision and why most plaintiffs aren’t relevant to the decision,
- Points out that the Constitution doesn’t mention a right to abortion, but
- Claims that there’s evidence of an implied right to privacy, then
- Weasels away from that by suggesting that a woman’s privacy can’t be absolute,
- Insists that a fetus can’t possibly be a “person” for legal purposes,
- Tries to explain why states have a concrete interest in the lives of the unborn persons with no awareness of contradiction the prior assertion, and
- Says (finally) that, for the first trimester, decisions on abortion must be left entirely up to the woman…’s physician.
That’s right. Women don’t have a right to their reproductive health under Roe. Their doctors have a right to their reproductive health. It’s embarrassing, especially after going on incoherently for dozens of pages. I’m half-surprised there isn’t a digression in there about the Nixon inauguration or wishing that the Justices got free tickets to the Foreman-Frazier fight. That could’ve been at least another three pages of avoiding the issue…
Justice Stewart’s concurrence is far better. It flatly points out the many cases where courts have ruled that Due Process includes not interfering with marriage and family life, and so that should obviously extend to pregnancy. Concurrences aren’t legally binding, though.
Then, Justice Rehnquist’s dissent basically argues a slippery slope, suggesting that interpreting liberty to include abortion might some day expand liberty to include…anything, and he also thinks it’s fine to deprive women of privacy, as long as there’s something called due process involved. Rehnquist was an ass. He didn’t believe that the Fourteenth Amendment meant what it literally says, instead wanting it to imagine that the (I guess) secret meaning was that it shouldn’t extend beyond the ending of slavery. Again, it doesn’t say that, but maybe his copy was smudged.
My point is that this has always been a shaky foundation, that has always been vulnerable to this nonsensical “you’re not allowed to do it, but you’re also not restricted from doing it, because we’re not allowed to restrict you”-style legislation. We need better than a waffling mess that can only care about women (or anybody else with a uterus) if there’s a (at the time, probably male) doctor to make the actual decisions. People need a right to control their bodies.
The Path Forward
How do we get that right? There are two parts to making this happen.
The obvious side is to make sure that people are registered to vote, and voting in every election to get every right-wing loser and their supporters out of office. Deprive them of power, and they can’t cause dramatic problems. They are a party that represents a shrinking minority, kept in power through voter suppression tactics and the voter suppression embedded in the Constitution via the Senate.
Less obvious, but equally important, is to make nuisances of ourselves. Write letters, on paper, mailed with stamps. Join protests and strikes. Put on your mask, get your friends together, and visit your representatives at their office…but schedule an appointment. Make demands that Congress pass an actual law that explicitly grants reproductive rights, in ways that can’t be ignored.
The people to target are:
- Your district’s Congressional representative,
- Your state’s two Senators,
- Your governor, and
- The state legislators who represent your part of your state.
The first two are relevant, because they’re needed to pass the laws. The latter two are relevant, because they can put more direct pressure on the first two than you can.
And again, this needs to be done in ways that can’t be ignored. Filling out the form on your representative’s website is more convenient, but databases sometimes crash, summaries often overlook important details, and your input can be erased with no paper trail. Calling is more convenient, but voicemail fills up. Letters, protests, strikes, and meetings don’t care about clutter. In fact, an overflowing mailbox makes a far stronger statement than full voicemail ever could.
If you’re listening to people who are saying that “Congress” needs to act next, those people don’t care about reproductive rights. Or, rather, they care less about reproductive rights than they do about complaining that they aren’t getting what they want. Congress will act when the American people demand that they act, in ways that can’t be ignored. We, the people, need to take control.
I’m sure that I’ve made this point before, but do you know who sends paper letters to and makes appointments to meet with the representatives? The same people cheering the Texas law.
Credits: The header image is untitled by an uncredited PxHere photographer, made available under the terms of the Creative Commons CC0 1.0 Universal Public Domain Dedication.
Tags: rant harm