Last Thursday, Kentucky became the latest in a growing list of state legislatures passing “fetal heartbeat” bills that would ban most abortions once a fetal heartbeat is detected—as early as six weeks into a pregnancy. The bill was temporarily blocked Friday by Judge David J. Hale of the Western District of Kentucky. But Hale’s decision, like the many other court rulings that have questioned the constitutionality of these bills, is no cause for relief among advocates of reproductive rights.
The battle being fought here is not only legal but cultural. Talk about “personhood” used to be somewhat abstract. Now, with bills focusing on fetal pain and heartbeat—or those forcing pregnant teenagers to look at sonograms—the living, breathing fetus has moved more vividly than ever to the foreground of the abortion debate. And the more “real” the personhood of the fetus, the limper the arguments for “choice” seem. Or so those advocating these bills are hoping.
I am pro-choice. But I also believe that viewing the abortion debate as a contest between fetal rights and “choice” is misleading. It fools us into thinking that it is only the fetus whose personhood is at issue, when in fact these bills are an assault on the personhood of the pregnant women herself. They aim to give the fetus protections no other citizens have—at the same time as they deprive the pregnant woman of the most basic rights granted to everyone else in this culture: bodily autonomy and informed consent.
As the United States Supreme Court acknowledged over one hundred years ago: No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by a clear and unquestionable authority of law.
Wait, you say—what about when another person’s life is at stake? Doesn’t the authority of law interfere under those circumstances?
Would it surprise you to know that judges have consistently refused to force individuals to submit without consent to medical procedures, even when another life hangs in the balance? No one can be forced, for example, to donate bone marrow—or even to undergo a blood test to determine compatibility—for a dying relative (let alone a stranger.)
You might find such a refusal morally repugnant. But the fact is that it is protected by law. Yet our legal history is strewn with cases in which judges have ordered pregnant women to submit to highly invasive procedures in the interests of the life and health of a developing fetus. These include obstetrical interventions such as forced cesarean sections and intrauterine transfusions. And Matt Bevin and others are now trying their best to include both very late and very early term abortions—indeed, pretty much all abortions, and giving birth itself—among those medical decisions that do not require informed consent.
It’s vital to recognize that no one else is held to the same standards as pregnant women when it comes to the protection of fetal life. Women have been charged with “fetal endangerment” for drug use during pregnancy, for vehicular homicide for miscarrying while driving intoxicated, even for “felony child abuse” for drinking while pregnant. A Washington judge sent Brenda Vaughan to jail for nearly four months to protect her fetus, because a drug test, taken after she was arrested not for drugs but for forging a check, revealed cocaine use.
Yet neither fathers nor the state nor private industry is held responsible for any of the harms they may be inflicting on developing fetuses (through smoking or reckless driving, for example.) The fact is that we have one moral and legal code for men and their bodies, and another for pregnant women. And the record is particularly grim when it comes to poor women and women of color.
So as crucial as reproductive choice is to every part of a woman’s life, including her economic opportunities, her ability to care for her family, and her autonomy as a human being, the protection of reproductive rights is not just about “choice.” It’s about the equal treatment of women under the law. In fact, one well might ask whether the debate about personhood isn’t misplaced.
Matt Bevin wants us to recognize that the fetus is a person, and to grant the fetus the same protections we would to any other person. I say it’s time we recognize that pregnant women are persons, and demand they receive the same protections as Bevin himself enjoys under the law.
Susan Bordo is the Otis A Singletary Chair in the Humanities and Professor of Gender and Women’s Studies at the University of Kentucky.