Law, God, and Attacks on Women
The legacy of femicide is alive and well in 2023
AND
JUL 29, 2023
The state of women’s rights today is pretty grim. One woman in Nebraska has gone to jail for self-aborting. Nineteen Republican attorneys general are seeking women’s medical records to ascertain if they sneaked out of state to have an abortion.
But this isn’t exactly new: Treating women badly has a long legacy.
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International Legacy of Femicide
In her book, The Burning Time, Robin Morgan outlines just one case from the Inquisition, an era in which the Catholic Church attacked women with a vengeance.
For 300 years, from the 16th into the 18th centuries, women were accused as witches and put on “trial” – a no-win situation where if you were innocent, you died and if you were guilty, you were murdered.
The last formal witch trials in Ireland were in 1711, in England 1717, in Germany 1775, in Spain 1781, in Switzerland 1782, and in Poland 1793. The number of women murdered ranged from 50 in Spain in 1507, to 500 in Switzerland in one day in 1515, to 1,000 in Italy in 1524, and 900 in Germany in 1622.
In the Rhineland district of Germany, only two women were left alive in 1586. In Sweden, in 1670, 70 women and 15 children were murdered and 136 children between the ages of 9-16 were whipped every day for a year. Entire convents of nuns were wiped out for harboring “rebellious, learned women.”
An unintended consequence of killing all the cats that the priests called “familiars” was that rats proliferated, bringing infestation and disease. That too was blamed on the women.
The total estimate of women murdered was 8 to 9 million.
But witch hunting did not end in the 18th century. In 1860, Elizabeth Packard was locked in an insane asylum in Massachusetts on the word of her husband because she wanted to be independent. An independent woman was, by definition, insane.
The same dynamic continues today. Women who accuse men of violence or crimes are called crazy and attacked. Amber Heard and E. Jean Carroll are just two recent examples.
For decades, women have not reported rape, sexual harassment, and physical violence because when they do, they are attacked rather than the abuser held accountable.
Despite this history of horror and injustice to women, Supreme Court Justice Alito in the Dobbs decision cites Sir Matthew Hale, a seventeenth-century lawyer and judge who believed that a charge of rape could not be brought against a husband since it was inconsistent with the husband’s rights to his wife’s body conferred by marriage.
To Alito, that theory is also consistent with seventeenth century ideas about husbands being the head of the household and the representative of the wife in the public sphere. Thus, she did not need political rights like voting, as her husband did that.
Samuel Alito based his decision in Dobbs on the beliefs of Sir Matthew Hale, who wrote that it’s impossible for husbands to rape their wives because they own them
Feminist Battles Amongst Themselves
In the “pornography wars” between women in the 1980s, my side lost. But we have unfortunately been proven right by the proliferation of pornography on the internet, the rise of “revenge porn,” the growth of more violent porn, the reduction in age of boys starting to watch porn (down to 8), and the harm to teenage girls (1 in 3 thought of suicide, the growth of eating disorders, 3 of 5 teens are harmed by social media), all now documented.
Most recently, teen girls think that strangling during sex is acceptable, though scary. Strangling is one of the primary indicators that an abuser will eventually kill the woman.
Likewise, battles between the pro- and anti-prostitution groups rage on. Women are in both camps, but victims of prostitution are nearly universally in the anti-prostitution camp. The growing acceptance of the Nordic Model (Maine has recently adopted it) and the research showing the reduced harm to women from that model seems to be winning the day, though we are up against tremendous odds with the billions of dollars made literally on women’s backs.
Dobbs is not an Outlier
In its Dobbs decision, the court looked back to the passage of the 13th and 14thamendments and said that neither was deeply rooted in the nation’s history and tradition nor implicit in the concept of ordered liberty. Of course they were not.
When the nation was founded, slavery was legal, and the Constitution acknowledged that. The passage of the amendments after the Civil War was intended to change that tradition.
Astonishingly, the recent decision in the affirmative action case (Students for Fair Admissions Inc v. Harvard) even denies that the 14th amendment was meant for freedman! Since women were not included in any case, whatever women’s status in 1868 – according to the court, they can go back to being that.
Completely ignored was women’s tradition, women’s concept of ordered liberty, women’s history of fighting for and winning our rights. But if one ignores facts, as this rogue supreme court does, then they can justify ignoring women.
There were no women artists because they were not allowed to be published and if they were, had to use men’s names. There were no women mathematicians because they were not allowed to go to school or get jobs and if they did, their work was stolen, or they were ignored, like Rosalind Franklin.
As more research is done by women, more frequently it is found that the work thought to have been done by men was, in fact, done by women who were not credited.
The supreme court was even wrong about the legal history and tradition of women’s rights. In Hoyt v. Florida in 1961, the court said that women were the center of the home and family. Only 30 years later, in 1992 in Planned Parenthood v. Casey, the court said that: (t)he traditional view of woman’s role as only wife and mother was “no longer consistent with our understanding of the family, the individual, or the Constitution.”
Under that doctrine, women must take their place as full and equal citizens. For that to happen, women must have control over their reproductive decisions. Thirty years later, we are back to the past, where women do not have constitutional rights because we are only breeding machines.
Women’s Fundamental Rights Were Lost Before
This is not the first time that women lost fundamental rights in the U.S. New Jersey interpreted their constitution to allow women to vote in 1776 and mandated it in 1797. In 1807 they removed the right to vote because women were getting too uppity.
Women voted in Utah in 1870 when it was a territory. But when they joined the union, the U.S insisted they remove the right of women to vote, which they did (but reinstated it in 1896). Arizona did the same when they joined the union, and afterward restored the right to vote after women waged a statewide campaign.
Women’s groups fought about putting “male” into the 15th Amendment, but it was not strictly a Black/white dispute. The argument by Elizabeth Cady Stanton was that by putting “male” in the 15th amendment, it means that the 14th amendment would not be interpreted to include women’s right to vote.
Many Black groups at the time agreed. However, the dispute has led to many fights to this day between Black and white women. Turns out, Stanton was right.
An attorney, Myra Bradwell, brought the first case in 1869, one year after the Fourteenth Amendment passed, when the Illinois Bar would not license her. The case focused on privileges and immunities, not equal protection. The court found that being a woman was sufficient reason to disqualify her from being licensed as an attorney and the privileges and immunities language in the amendment changed nothing.
In Minor v. Happersett, the court in 1874 said that women are citizens, but that has nothing to do with voting and the passage of the 14th Amendment changed nothing in that respect.
It took another 80 years and the passage of the 19th Amendment for the right to vote to be extended to women, though women of color and indigenous women were still not equally protected. That battle over putting “male” into the constitution was very public, yet the male supreme court justices did not see it as a history of women’s rights because they did not want to see it.
We have seen in the Bremerton v. Kennedy decision that the supreme court will lie about the facts, and in the 303 Creative v. Elenis case that they will decide a case with no facts at all. These are ideological decisions not based on law, history, or tradition.
Prohibition, while often denigrated as an imposition of morals, was in fact engineered by women in the Temperance movement to stop domestic violence and poverty because of the physical and economic threat to women posed by alcoholism. Men often drank up the paycheck and then came home to beat their wives and children.
As late as 1850, wife beating ‘with a reasonable instrument’ was legal in nearly every state. The Temperance organizers thought that the government owed women a positive right i.e. protection from violence in the home. Repealing prohibition was a repeal of a positive right for women – the right to be free from violence.
But this is not just history; we have modern day examples. Red Flag Laws are ways to keep women safe but are attacked as a violation of the 2nd Amendment today. A recent court decision said that a man with a domestic violence order could not be prohibited from having guns (U.S. v. Rahimi, 5th Circuit). The supreme court is hearing that case next term.
Gun violence is the number one killer of children. Women are eight times more likely to be murdered if the abuser has a gun, but men’s right to guns is more important than women’s right to life. The underlying issue, according to the court, is interference in the family… because the court is defining “family” as the right of the man as if the “family” were a unitary body – a very patriarchal definition.
The third area where women have arguably lost rights is protective labor legislation, though it is hotly contested whether protective labor laws are pro or anti-woman. In Muller v. Oregon in 1908, the Court ensured protection for women from excessive working hours.
Subsequent judicial decisions validated what was arguably a positive—albeit implicit—right to a living wage. One might characterize the Court’s subsequent decision in Adkins v. Children’s Hospital in 1923 as an erasure of that “right.” That case was shepherded by women’s groups opposed to so-called “protective” legislation.
“Protective” laws were often used to prohibit women from the best-paying jobs while leaving them exposed to danger in the worst ones. In Goesaert v. Cleary, the court said that a law that refused to license women to be bartenders unless they were the wife or daughter of the owner of the bar could withstand the rational relation test because that familial relationship might protect the women from some of the harm that could come to women bartenders.
Of course, this did not protect women who were waitresses in the same joints that they could not be bartenders in… but it did (of course) protect the better paying bartender jobs for men.
Recently, two bills extended protections to women. The Pregnant Workers Fairness Act H.R. 1065 corrected an earlier supreme court mistake that said discrimination against pregnant women is not discrimination against women because it was between pregnant women and non-pregnant others, both women and men. In 1976, our law school class thought the justices who made this decision had clearly missed a biology class or two.
The PUMP Act S 1658 recently passed as well. This amends the Fair Labor Standards Act of 1938 to expand access to breastfeeding accommodations in the workplace, and for other purposes.
While Dobbs is not an outlier in clawing back women’s rights, it is women’s Dred Scott. In Dred Scott the enslaved man argued that since his enslaver had taken him into a free state, those laws applied, and he was a citizen and free. The court said no: If you are Black, you can never be a citizen and therefore the laws do not apply, and you can never be free.
In Dobbs, Alito said that the Constitution’s 14th Amendment has no right to abortion in it. Alito’s blunt statement that the 14th does not protect women should put to rest those who say we don’t need the Equal Rights Amendment (ERA) because the 14thamendment protects us. It never did and clearly does not now.
The Dobbs court said the Equal Protection Clause of the 14th Amendment does not apply in the context of pregnancy. Since, theoretically, any female could become pregnant, none of us have equal rights under the 14th Amendment. The substantive effect of Dobbs is to relegate women to second-class citizenship, even though the majority’s opinion does not use those words.
The ERA is now the 28th Amendment having been ratified by the 38th state (VA) on January 27, 2020 and thus fully in effect as of January 27, 2022. The archivist is refusing to publish it and the unratified states are opposing it. Hence, we continue the battle over 100 years since the ERA was first introduced into Congress in 1923.
What is Prompting the Backsliding on Women’s Rights?
Fear of lost privilege for males is terrifying to them. Hatred and fear of women is central to toxic masculinity and the Incel movement. Incels are “typically heterosexual, white males, who adhere to a violent and misogynist ideology of male supremacy,” according to the FBI. They claim they are victims of feminism because they did not achieve what they thought they deserved, whether it be money, a job, acclaim in some field… or a woman.
In the U.S., boys lag girls in education levels, said Richard Reeves, author of the 2022 book, Of Boys and Men, Why the Modern Male is Struggling, Why It Matters, and What to Do About It. Women enjoy better academic and professional prospects though equal opportunity still eludes us.
But the entry of women into academia and the professions, sports, and the arts has shown that indeed women are equal or superior to men in those fields. This fact few men want to admit.
Since men have long had exclusive power, when they are treated equally, it feels like oppression. Numerous studies have shown that teachers call on boys more than girlsin class. When teachers were videotaped and prompted to call on boys and girls equally, the boys then complained that they were being treated unfairly. In fact, they were called on equally, but they were so used to having privilege that equality felt like deprivation.
An experiment I did in Russia with law school classes was to give all the students two resumés to determine which should be hired. The hypothetical students were RJ, a woman, and TM, a man. But for one half of the room, I reversed the resumés, so it was the same resumé but belonged to a different sex.
Uniformly, the classes chose to hire the male, saying he was more qualified even when in the other half the room, that resumé belonged to the woman. They could not explain why, when the exact same resumé was a woman’s, she was not deemed more qualified as he had been with that same resumé. It’s clear that sexism was the reason.
Patriarchy is flailing in its death throes. But those with power and control about to lose their privilege will not go quietly into the night. As Frederick Douglas said, power has never conceded without a fight, and it never will.
One of the demographic facts terrifying those in control is the decrease in birth rates among better off countries and white women. A Nebraska legislator said the quiet (racist conspiracy theory) part out loud when he said that we don’t need these foreigners coming here. We need more women here to have more babies. That would solve the shortage of workers problem.
The fertility rate of men is also dropping worldwide. It is being blamed on poisons in our food and air put there by the very corporations in control who fear losing power. These dual facts are the impetus for “The Great Replacement” theory.
The Christchurch, New Zealand mass murderer in 2011 named his document “The Great Replacement.” The white supremacists in Charlottesville, Virginia in 2017 chanted, “You will not replace us.” That’s also the slogan of Identity Europa, another neo-Nazi group.
In fact, it’s crawling all over the right-wing web, popularized by a fascist French philosopher, Renaud Camus (no relation to the French novelist Albert Camus). “Replacement theory” has heavily influenced nativists like the Dutch politician Geert Wilder, and is a staple of rightist, anti-immigrant, political parties across Europe. It’s an extension of colonialist theory, rooting itself in the fear that white women are not bearing enough children, which will lead to white people being replaced by “The Other.”
Iowa Republican Congressman Steve King, tweeted, ”We can’t restore our civilization with somebody else’s babies.” It was the backdrop for “birtherism,” which first brought Trump to political prominence. All the attacks on immigrants are based on a slowing birthrate in western countries. Thus, white women must return to their role as breeders and the supreme court will help by outlawing abortion and contraception.
Abortion is Not the Only Issue Regarding Control of Women’s Bodies
Surrogacy is not a kind gesture of a sister having a baby for her infertile sister. It is an international money-making system using poor women as wombs and if the children are not perfect, the buyers may reject them to be stateless orphans.
Discussion is ongoing about the “ethics” of using women’s comatose bodies to implant fetuses. The body would then be kept alive as a nutrition source for the fetus. There can be no ethics in this discussion.
Artificial womb research is called “ectogenesis” and is fast approaching reality. Women’s groups argued about this in the 1970s, some saying that if all birth was in a laboratory, women would be free. Others argued that if all birth was in a laboratory, women would be erased from the earth.
Such artificial wombs would mean that the fetus would potentially then be “viable” from conception. That is why there should be no mention of “viability” in legal language: As medical science pushes viability farther and farther back, women have less control.
Women’s rights should be centered in the value of reproductive autonomy, i.e. the right not to become a mother against your will, not on the viability of a fetus. It’s past time to recognize maternal personhood, not fetal personhood.
Legal Landscape Since Dobbs
The legal landscape since Dobbs is the Wild West and daily changing. Some states are upholding abortion under state Constitutions, some are passing laws, some are passing citizen initiatives. Some states are doubling down to prohibit abortion by passing criminal laws (a girl then 16 was just sentenced to 4 months for using the abortion pill), passing laws to punish others for aiding and abetting, passing laws prohibiting a person from leaving the state for an abortion, attacking doctors, and forcing records to be divulged.
Companies are getting in the act. Danco Pharmaceutical filed for a stay of the Texas judge’s decision on the pill because as the only provider of the pill, they face a complete disruption of their business and loss of funds. Economy and profit will be a more persuasive reason for keeping the pill than women who face the inability to obtain health care, even in the face of death. Planned Parenthood has now been sued in Texas for taking Medicare and called it extortion and theft.
A group of doctors sued because they said they were against abortion and didn’t want to have to treat women who might be having a miscarriage because of taking the abortion pill. In the doctors’ case, the Rule of Law faces a complete upending of precedent; states face a loss of sovereignty, the Constitution faces the violation of the separation of powers doctrine, and the FDA faces the destruction of procedure.
The doctors face the possibility that one day they may have to give medical services to a woman whose choices they do not agree with. This is not a cognizable injury.
The emotional discomfort associated with providing medical care to a person with whom a physician has a moral, ethical, or religious disagreement is not an Article III injury. Doctors treat murderers and rapists and child abusers and drug addicts and drunks who have just murdered innocent drivers.
They don’t say “oh, I can’t treat this one because s/he made a decision I don’t agree with.” Nor do they say it goes against my religion to treat murderers or child molesters. It’s only women they refuse to treat. It’s not about life; it’s about control. One Republican congressman said they won’t be satisfied until Gilead is reality in the U.S.
The lawsuit in Texas in which the women have testified about their tremendous suffering and losses because of the law has exposed the callous and brutal stance of the state against women and their lives. They don’t care that a woman who wants a child can no longer have one because of the damage caused by her inability to get a necessary abortion. They don’t care that the mother of four who wanted the baby had to sit and hold her after delivery for four hours while she died because the mother could not get an abortion.
They do not care about women at all. But then, we knew that.
Potential Legal Avenues
First Amendment
- Freedom of Association
While freedom of association is not explicitly listed (…or the right of the people peaceably to assemble) in the First Amendment, the Supreme Court has recognized it as a fundamental right. Freedom of association appears as either:
- Expressive association (which protects the ability to engage with others to advance beliefs and ideas that are often political in nature); or
- Intimate association (which protects the ability to associate privately with family or other persons).
Challenges in the reproductive rights arena tend to focus on expressive association. The First Amendment also protects an individual’s right not to associate. Both positive and negative aspects of these freedoms have arisen in post-Dobbs litigation.
Expressive Association: In Davis v. Sharp, No. 22-cv-373 (W.D. Tex. Feb. 15, 2023), an abortion fund and three private donors argued that Texas Senate Bill 8 violates constitutional and state law protections, including expressive association. S.B. 8 bans abortions after six weeks of pregnancy and deputizes private citizens to bring civil lawsuits against abortion providers as well as those who “aid[] or abet[]” prohibited abortions. The abortion fund and donors alleged that the provision threatens to chill their inter-relationships with employees and volunteers in violation of their freedom of expressive association.
The district court dismissed the suit, determining plaintiffs had not shown an imminent threat giving them standing to sue. Idaho and Oklahoma have enacted similar laws allowing citizen-initiated civil lawsuits against those who provide, or aid and abet, banned abortions. Per a 2021 report by the National Association of Criminal Defense Lawyers, general state criminal laws regarding complicity may also be used to expand liability to those who aid and abet now unlawful abortions. Similar to the Sharp litigation, additional challenges may arise to assess whether enforcement of these more general criminal laws would also violate the freedom of expressive association under similar circumstances.
Right not to associate: In Slattery v. Hochul, 61 F.4th 278 (2d Cir. 2023), a crisis pregnancy fake clinic (The Evergreen Association, Inc.) challenged a New York state law prohibiting employers from “taking adverse employment actions against employees for their reproductive health decisions.” Evergreen argued that the law burdened its freedom of expressive association by preventing the organization from disassociating with persons who do not share anti-abortion views, undermining the organization’s religious and moral message.
Reversing the trial court’s decision on this issue, the Second Circuit Court of Appeals found that the law could severely burden Evergreen’s right to expressive disassociation, forcing the organization to employ individuals acting counter to its mission. The court dismissed Evergreen’s other First Amendment challenges, determining that the law did not violate speech or free exercise protections. They did not have to show an imminent threat like the plaintiffs in Davis v. Sharp.
- Freedom of Speech
Freedom of speech allows individuals to express their political views and other ideas, as well as commercial messages, without fear of governmental retaliation or punishment. Though the reach of the First Amendment is broad, not all forms of speech are protected. Obscenities, defamation, false statements, and true threats of harm exemplify unprotected speech. However, in Counterman v. Colorado, decided June 27, 2023, the supreme court diminished this protection in true threat cases. They said that the defendant must have some subjective understanding of his statements’ threatening nature, but the First Amendment requires no more demanding a showing than recklessness.
In this case, a singer was stalked by a man who envisioned violent things happening to her. She changed her routine, cancelled her social media, canceled some performances, declined invitations, and still he kept harassing her. Though the state court found that a reasonable person would have found it threatening, the supreme court said the state had to prove that the stalker was aware his behavior was threatening.
So it no longer matters if I feel threatened or even if a reasonable person would feel threatened. It only matters if the stalker admits that he knew he was threatening me.
This requirement dramatically reduces the protection from stalkers who almost always target women, are often former husbands or boyfriends, and the woman is well aware of their potential for violence.
Defamation: On February 24, 2023, the Texas Supreme Court decided that an anti-abortionist’s Facebook posts constituted protected speech, rather than defamation. In his posts, the Defendant accused three reproductive rights groups of engaging in criminal activities, namely murder, and urged their punishment under local ordinances.
Defamation involves the expression of false statements of fact. In Lilith Fund for Reproductive Equity v. Dickson, No. 21-0978, 2023 WL 2193586 (Tex. Feb. 24, 2023), the court reasoned that the posts were not false statements of fact because the tone was “exhortatory, not factual”; in essence, the statements constituted opinions, rather than facts.
The court emphasized the importance of free speech principles, protected by both the First Amendment and Texas state law. It noted how the U.S. Supreme Court has clarified that “unpopular and even reprehensible speech” is protected and acknowledged the “chilling effect that defamation lawsuits have” on individuals who lack the resources to litigate.
Elected Official Speech & Retaliation: In Warren v. DeSantis, No. 4:22cv302-RH-MAF, 2023 WL 345802 (N.D. Fla. Jan. 20, 2023), Florida State Attorney Andrew Warren sued Governor Ron DeSantis after being suspended over his pledge not to prosecute those seeking abortions or gender-affirming care.
Warren argued that his suspension violated First Amendment guarantees protecting elected officials’ freedoms to express views on policy and prohibiting retaliation for engaging in protected speech. In January 2023, a federal district court decided the suspension violated the First Amendment and state constitutional protections, but still ruled in favor of Governor DeSantis, as Warren would have been suspended regardless of the First Amendment violation. Warren appealed to the Eleventh Circuit Court, which granted a motion to hear the case in early May 2023.
III. Freedom of Religion
Freedom of religion ensures that individuals can practice their chosen religion, or no religion at all. The free exercise clause prevents unjustified government interference with religious exercise, while the establishment clause prohibits government from establishing or favoring any specific religion.
Many religious groups argue that state abortion bans violate free exercise and establishment clause protections, or that bans violate state Religious Freedom and Restoration Act (RFRA) laws, that prohibit governments from substantially burdening religious exercise without sufficient justification.
Interestingly, many states with restrictive abortion laws also have strong, long-standing religious freedom protections via state constitutional guarantees or RFRAs. Plaintiffs have taken advantage of these religious privileges in abortion-hostile states to bring challenges against abortion bans based on RFRA.
In Satanic Temple v. Texas, No. 22-20459 (5th Cir. Dec. 5, 2022), the Satanic Temple, a nontheistic religious organization, seeks to block Texas state laws limiting abortion access under free exercise of religion and free speech protections. The U.S. district court in Houston denied the Temple’s request on July 3, 2023.
The Temple argues that its members consider abortion a “personal moral decision” that “lie[s] uniquely within the realm of religion.” It also identifies abortion as a religious ritual protected by the Constitution. The Temple further asserts that the First Amendment “must protect a minority religion from laws rooted in the holy texts of an adverse majority.” The Temple is likely to appeal.
In Generation to Generation, Inc. v. Florida, No. 2022 CA 000980 (Fla. Cir. Ct. June 16, 2022), a Jewish synagogue filed a lawsuit seeking to block the state’s 15-week abortion ban in violation of the Florida constitution’s establishment and free exercise clauses as well as Florida’s RFRA. According to plaintiffs, the abortion ban codifies a “particular religious view about abortion and when life begins.” The law impedes the practice of Judaism, the synagogue argues, because Judaism permits abortions, and even requires a mother to abort a pregnancy to protect herself.
Other religious leaders have also joined the Jewish congregation’s lawsuit. Since the intent was to stop the implementation of HB5, and a similar Planned Parenthood suit had already been granted an injunction, the judge ruled it was not an emergency and the case is ongoing.
In Anonymous Plaintiffs 1–5 v. Medical Licensing Board of Indiana, No. 49D01-2209-PL-031056 (Ind. Super. Ct. Dec. 8, 2022), the American Civil Liberties Union and a Jewish group in Indiana (Hoosier Jews for Choice) sued on September 8, 2022 to block the state’s abortion ban, arguing that it violates Indiana’s RFRA. They contend that the abortion ban impedes their own and others’ sincere religious beliefs, explaining that many religious practices run counter to the state’s abortion ban. On December 8, 2022, a superior court judge agreed, blocking the law’s enforcement.
While a Planned Parenthood case had also gotten an injunction, the court said this case was not moot because it was based on different legal claims and sources of rights. The state of Indiana appealed that decision, and the case is pending. A similar case was also filed in Kentucky on October 6, 2022 under that state’s RFRA.
Americans United won an important ruling June 30, 2023 when a state judge in Missouri ruled that 14 clergy from seven faith traditions may move forward with a lawsuit challenging laws that restrict abortion access in the state. The lawsuit, Blackmon v. Missouri, was brought by Americans United (AU) and the National Women’s Law Center (NWLC) on behalf of clergy members who support abortion access. AU, NWLC and the other plaintiffs argue that Missouri’s abortion bans violate the state constitution’s guarantee of separation of church and state.
Thirteenth Amendment
A newly emerging argument is involuntary servitude under the 13th Amendment. The moves to control women’s health choices are nothing short of the colonization of women. Robin Morgan wrote an essay in 1974 titled “On Women as a Colonized People.” The colonization of the mind and body is the ultimate control to mine women for their natural resources i.e. our ability to bear children.
Our society doesn’t practice, and indeed would be horrified at, the idea of compulsory organ donation. Yet, this is what anti-abortionists are requiring of women. Religious pontificators and their law-making followers claim that women must gestate a fetus because a unique life is at stake, gestation and birth are not always fatal to mothers, so the mother’s health and time must be sacrificed to gestation for nine months, and birth.
If this is a universally required sacrifice, that one individual must sacrifice some bodily health so that another individual may live at all, then we should expect these same people to be campaigning for universal donation of life-saving organs. People have two kidneys. Thus, people can donate one to another person and enable that person to live better or at all. Yet anti-abortionists do not campaign for compulsory kidney donation.
We also do not see any campaigns for compulsory organ donation after death—even though in that case, the donor would not be inconvenienced at all. But of course, this runs afoul of various religious taboos; thus revealing that this is all a matter of superstition anyway. We can’t even use a dead person’s organs to save a life unless we have express written permission from them beforehand, while they were alive and of sound mind.
The belief in bodily integrity, except for pregnant women, is so strongly rooted in our society that such attempts to mandate organ donation, even though they deal with the body after death, face significant opposition and challenge. Sara Naomi Rodriguez, No Means No, But Silence Means Yes? The Policy and Constitutionality of the Recent State Proposals for Opt-Out Organ Donation Laws, 7 FIU Law Rev. 149 (2011).
Indeed, we can’t even use someone’s individual cells (that they don’t need) without getting their express written permission. Henrietta Lacks’ cells were taken from her without her permission (while she was receiving cancer care at Johns Hopkins). These cells had the amazing quality of being able to multiply in the laboratory over many years.
They became known as HELA cells and were (are) a workhorse in microbiology. Neither she nor her family were compensated for the cells that were taken. It is no longer legal to take a person’s cells and use them for research, without their informed consent even though taking a sample of someone’s cells deprives them of nothing they need and causes no inconvenience.
Even blood donation is not compulsory, though it may be necessary to save a life. Blood donation is far less invasive than gestation for nine months followed by giving birth.
Clearly, saving a life is not really the motivating factor.
Anti-abortionists may say that the reason for their stance for being anti-abortion, but not in favor of compulsory organ or blood donation, is because the woman is in some way responsible for the existence of the fetus.
So is the father.
If anti-abortionists really think that it’s a matter of responsibility towards any beings which you have had a part in creating, then they should be in favor of compulsory blood and organ donation for all fathers regarding all offspring. Do we see any campaign that fathers should be required to donate their own living tissue towards saving the life of one of their progeny? Do we see this with sperm donors? Is it being mentioned at all?
Of course not. Because the “responsibility” of which these anti-abortion people speak is only a matter of punishing women for having sex or being raped. The father is never equally responsible.
A philosopher once described a person waking up next to a famous concert violinist, who, while that person slept, was ‘plugged into’ the kidneys of the sleeping person to compensate for the violinist’s own failing kidneys. (Judith Jarvis Thomson, A Defense of Abortion, Philosophy and Public Affairs, Vol 1. No. 1 (1971). While unplugging herself will cause the death of the violinist, Thomson reminds us that we agree that the person has no legal obligation to continue to be used as a life support machine for the violinist, even if only for nine months.
Similarly, any rights a fetus might have to continued existence do not also include the right to compel others to sacrifice their body, time, and health to realize it. We may laud the person who stays plugged into the violinist, just as we may admire the person who donates bone marrow to a sick child.
However, we do not legally compel anyone to do so.
Thus, when women are compelled to carry and bear children, they are subject to involuntary servitude — a violation of the 13th Amendment. Since any female could potentially be a mother, we are a separate servant caste by virtue of our birth. We have a duty to serve others and not ourselves… a duty that men do not have.
There is no agreement when life begins, but it doesn’t matter because women cannot be forced to give up her body for the life of another. Our law doesn’t even allow us to compel involuntary servitude in carrying out contracts of personal service i.e. perform a concert, operate even if you are the only specialist who can do it, or be the CEO of a company. The burden is on the state to prove that the violation of the 13thAmendment is justified, and they cannot do that because it is impossible to prove that the fetus is a person.
Compulsory pregnancy was one of the horrific violations in slavery. Black women were raped and had no control over their offspring. The words “involuntary servitude” have a broader coverage than slavery, and the Thirteenth Amendment prohibited all control by coercion of the personal service of one person for the benefit of another.
Conclusion
Like many constitutional rights, the right to bodily autonomy situates a woman in relationship to others and to the government. Abigail Adams encouraged her husband while drafting the Constitution to not forget the ladies because men will be tyrants if they can; he laughed at her.
“If particular care and attention is not paid to the ladies, we are determined to foment a rebellion, and will not hold ourselves bound by any laws in which we have no voice or representation.”
The very design of the Constitution replicates the family as a unit of governance, with the Executive representing the nation to the outside world, much as the father was the sole representative of the family in the public sphere. The structure replicates class structure by having the Senate as the “higher” body of Lords and the House for the commoners.
The history of ignoring women and their personhood makes judges who must apply “history and tradition” unable to find unenumerated rights after Dobbs. The Equal Rights Amendment has been ratified and is the 28th Amendment though it, like all previous amendments expanding human rights, is being challenged. When courts deliberately ignore women’s history or manipulate the facts, it is unlikely they will find substantive equality for women in the Constitution.
The retrofitting we have done to the Constitution since 1789 has not worked to fulfil the ideal of equality for all. It is time for a move toward feminist constitutionalism. But because Republicans control 29 of 50 state legislatures, a constitutional convention at this time would no doubt result in a further diminution of human rights and is thus far too dangerous.
Many of the restrictions on women are religion-based. Markos Moulitsas wrote American Taliban: How War, Sex, Sin, and the Power Bind Jihadists and the Radical Right in 2010. He quotes Rush Limbaugh from 2009 that “We all agree with the Taliban.” He outlines how Islamic radicalism and the Republican Party both curtail civil liberties, embrace torture, repress women, seek to eradicate LGBT peoples, and believe in force over democracy. He calls out progressives and elected officials for not naming this reality more forcefully.
If we allow theology to take over the country, we will face rulers like those in Iran or Afghanistan.
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