In June 2012 a series of pictures were published of a woman in the aftermath of a late-term, forced abortion, a casualty of China’s one-child policy. She lay sideways on a hospital bed, her hair covering her face, as if she had just been dumped there, like garbage. Next to her was the body of the seven-month baby girl that she had been forced to deliver pre-term, poisoned in utero.
The images of Feng Jianmei and her baby were pure horror. What was done to Feng and her baby was violent and obscene. She had a decision forced upon her, about her body, the size of her family and her fertility. It was the law of her country at the time. Her decision to have a second child was not deemed hers to make.
The pictures of Feng and others like her are grist to the mill of those who seek to limit, if not prevent, termination of pregnancies. But this is a moral sleight of hand, because “pro-life” and “pro-choice” are not binary opposites. The opposite of pro-choice is no choice. A decade since Feng had her right to choose so horrifically curtailed, a similar scenario is facing women on the other side of the world.
In early May 2022 the debate about a woman’s right to terminate a pregnancy was rekindled by the leaking of US Supreme Court judge Samuel Alito’s draft decision in Dobbs versus Jackson Women’s Health Organization. It is a debate that is made to seem intractable, because it is cast as a question that represents two diametrically opposed points of view. There is simply no rational or respectful way to bridge the philosophical and moral gap between those who regard life — from the moment of conception — as sacrosanct, and those who regard women’s right to make choices about their bodies as a given.
It is, however, a constructed binary, deliberately designed to polarise, with the aim of mobilising support and garnering power. By casting the public debate as a conflict of moral values, rather than the contextual weighing up of conflicting rights, it is one that cannot be reconciled.
‘Pro-life’ and ‘pro-choice’ are not binary opposites. The opposite of pro-choice, is no choice at all.
Certainly, the objective right of women to make choices as free and equal citizens about anything is not a given. In 1923 the Equal Rights Amendment to the US constitution, which had as its sole aim the guarantee of the rights of all citizens, regardless of sex, was proposed. Today, in 2022, it has yet to be ratified. Nearly a century since the simple principle was proposed that women ought to be treated as equals in their own country, under the constitution and the law, it has yet to be recognised in the US as a whole. Not even by half. In fact, in the last two decades, states in the US have even rescinded their earlier ratification of the amendment. And it is far from being realised in practice.
According to the World Economic Forum’s Gender Gap index for 2022, the US is not among the top 10 countries in the world for gender parity. Nor the top 20. It just squeaks in at number 30. The big deficit that keeps the US’s score merely mediocre is the score that measures political power. Women in the US are about one-third as likely as their male counterparts to have their views represented politically, either directly, or indirectly.
The US also has the distinction of being just one of two countries in the world (the other is Palau) who have signed, but declined to ratify, the Convention on the Elimination of Discrimination Against Women. Which puts it in rather dubious company. The countries that have neither signed nor ratified the convention are Iran, Somalia, Sudan and Tonga.
The unequivocal right to gender equality as a matter of law is recognised in some US states, and not others, cobbled together in legislation, constitutional amendments and case law. Whether it is discrimination in the workplace, the right to vote (the celebrated Nineteenth Amendment) and even more specific things like owning a home or having a credit card without the permission of a man, each and every right is hard-won, and not a given.
The moral consequences are no less important, and extend far beyond the US itself. The US’s authority as a champion of democracy, equality and human rights is rendered hollow by these omissions. The failure to commit to women’s full equality at home undercuts the power of the US to oppose violations of women’s rights, anywhere. The US cannot preach what it does not practice, whether it is forced abortions and sterilisations in China, dictatorship over women’s lives and bodies in Afghanistan or any other abuse of women and girls.
The power and authority of individual US states to suppress women’s freedom of choice when it comes to their own bodies and fertility is a form of oppression in the same tradition as the Taliban and the Chinese Communist Party. It represents an elevation of the power of the state over the rights of the citizen, granting them the ability to encroach upon the personal and the private.
On Friday June 24 2022 the final Supreme Court decision was handed down, reiterating the arguments made in the leaked draft, effectively overturning half a century of jurisprudence supporting women’s right to choose. The applicant in Dobbs represents the state of Mississippi, and the respondent is a women’s reproductive health clinic. Roe versus Wade, and later Casey, recognised the right of women in the US to seek and make decisions about their own reproductive health based on the right to privacy, equality and bodily integrity which are enshrined in the Ninth and Fourteenth Amendments.
This has not prevented more than half of US states from steadily chipping away at women’s access to reproductive health care, with particular zeal when dealing with terminations, while not actually instituting an outright ban. According to The Centre for Reproductive Rights, “[e]ven while Roe remain[ed] the law of the land ... because of federal, state, and territorial abortion restrictions, too many people [were] unable to access abortion care and [were] living in what [may be described as] a ‘No-Roe’ reality.” With the Dobbs decision even this precarious level of protection has now been swept away.
But the Dobbs decision is troubling in another sense. It is troubling because the judges made a political decision to answer a moral question that they were not asked. And that is not their role. Dobbs is an example of judicial overreach and activism, in this case, in the service of a dangerous and divisive cause. What exactly is the question that the court was being asked? Dobbs was whittled down to one simple question: whether all “previability” prohibitions on elective abortions are unconstitutional.
The meaning of “viability” is, of course, contested, but since Casey, it had been set at 24 weeks gestation. Dobbs sought to have this reduced to 16 weeks, or roughly the first trimester. Had the court merely answered this question (even if the answer was “no”), in theory it ought to have left early term, first trimester abortions within the realm of women’s right to choose. But the draft opinion of judge Alito, which has now been confirmed, and carried by the majority, has gone beyond answering this question, and has the effect of overturning Roe, with immediate and serious consequences for women in at least half of the US, and probably further afield.
The US cannot preach what it does not practice, whether it is forced abortions and sterilisations in China, dictatorship over women’s lives and bodies in Afghanistan or any other abuse of women and girls.
The arguments, broadly, hinge on the interpretation of, and weight given to, different sections of the constitution, specifically the Ninth, Tenth and Fourteenth Amendments. Roe and Casey leant towards an interpretation that reinforces the personal and private rights of the individual. Dobbs leans towards one which buttresses the powers of the separate states that comprise the US. Judge Alito’s opinion is that the earlier Roe interpretation of the rights to privacy, equality and bodily integrity as including women’s right to terminate pregnancies was not just mistaken, it was “egregiously wrong”. If the constitutional amendments do not specifically say that women may control their fertility, stemming from their rights to equality and privacy, then they may not. Silence on the matter, in this case, gives power to the state, not to the person.
But the constitution and its amendments are silent, or unspecific, about many matters relating to personal choice and bodily integrity. Only abortion is not protected under this aegis. Only abortion carries the weight of being morally wrong, and therefore, beyond the guarantee of these constitutional protections.
Mississippi is not alone in seeking to have Roe and Casey reversed. Louisiana has draft legislation at the ready to criminalise not only women who seek a termination at any stage of pregnancy, by declaring it to be homicide, but also those who facilitate it. The implications for women who, for example, have ectopic pregnancies, or early-term miscarriages, and their caregivers, are terrifying.
There are 13 states that have “trigger laws” that will come into effect, outlawing almost all terminations based on the Dobbs decision; a further nine have never repealed their pre-Roe restrictions. These “zombie laws” will simply be reinstated, 50 years after they were shelved. It is a literal step back in time.
More insidiously, extant vigilante laws in Texas and Oklahoma allow private citizens to sue — at great cost and with severe penalties — anyone who plays any role in supporting a woman who seeks a termination. Even if it’s just to hold her hand, or give her a ride.
And this is where the viciousness of the no-choice campaign really gains traction, and shows what it is really about — controlling women’s lives, choices and fertility. Already states such as Texas, Oklahoma and Mississippi, and about 20 others, have made it all but impossible for women to seek support, advice and treatment in matters of fertility generally, and terminations specifically. The Jackson Women’s Health Centre is the only one of its kind in the state of Mississippi. When states are given the power to determine complex and invasive rules for women’s fertility, early terminations of pregnancies (even if these are permitted) are placed beyond their reach.
And access to compassionate and qualified care in other matters to do with contraception, fertility and healthy pregnancies are compromised too. When women’s health facilities that offer termination as one of their services are hobbled by a slew of punitive restrictions and funding constraints, their capacity to provide other services is diminished. The result is inevitably an increase in unplanned pregnancies. Where will the support for these pregnancies — medical, emotional, financial — come from? The judges who authored Dobbs do not trouble themselves with this, because in a conservative society, this is not the business of the state.
The neighbours who reported Feng, and the party officials who punished her by fining her and her husband and then marching her to a forced termination, are not a unique product of a communist, authoritarian regime. They share the values of those who are celebrating Dobbs. They celebrate laws that hound, violate and punish women and those who support them in making a painful, intensely personal and private decision about whether to continue with a pregnancy.
It is a bitter irony that soi-disant champions of the right to life are so cruelly dismissive of the human rights of women, not to mention their lived reality. Because the deliberately polarised debate about termination is not really about human rights at all. It is about politics, state power and control.
Terminations are terrible things. No woman terminates a pregnancy lightly, easily, or with any sense of joy or satisfaction. There may be relief, but mostly there is just sadness. Women seek to terminate pregnancies for myriad reasons: failed contraception, rape, incest, age, fetal anomalies, their own health, the wellbeing of their existing children or family — the list goes on.
The reasons are endless, but they all have one thing in common. They are intensely private. Only the person who has the painful burden of making the decision, and living with its consequences, is in any position to make it. For reasons that have nothing to do with the state, religion, her family or anyone else, this is something that has happened to her body that she does not want.
Forcing women to continue with unwanted pregnancies through criminalisation and harassment is on the same spectrum as the violence committed against Feng. They are two sides of the same coin. Endorsing Dobbs does not equate to a victory for the right to life. On the contrary. It is likely to increase later, riskier and more traumatic terminations than if women were able to access basic reproductive health care timeously, privately and respectfully, as is their human right.
• Kristina Bentley holds a PhD from the University of Manchester, specialising in human rights, and is a senior researcher in the Democratic Governance & Rights Unit at the Uuniversity of Cape Town.
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