A recently leaked draft of the US Supreme Court’s opinion on Dobbs v. Jackson Women’s Health Organization suggests that the court is ready to overturn Roe v. Wade. Most people know the legal consequence of Roe, but few know the grounds for the decision. The focus was on the “important and legitimate interest” the state has in preserving and protecting the health of the pregnant woman. Defining “health” broadly, Justice Blackmun wrote:
The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, . . . the additional difficulties and continuing stigma of unwed motherhood may be involved. (410 U.S. 113, 1973)
Psychological, physical, familial, social, present and future health of the woman are all to be taken into consideration. I would add to this the spiritual well-being of the woman, for this is a deeply personal spiritual decision as well.
The late Justice Ruth Bader Ginsburg, while supportive of Roe’s concern for women’s health, and of its creation of a legal right to abortion, thought that its legal basis in the decision on the right of privacy was unfortunate. She believed that a better and more effective approach would have been to base Roe on equal protection. As she said in 2013, “Roe isn’t really about the woman’s choice, is it? It’s about the doctor’s freedom to practice. . . it wasn’t woman-centered, it was physician-centered.” And, she emphasized, the decision was made at a time when most physicians were men.
From their very origins, laws regarding abortion have not been woman-centered. Rather, they have been about men’s and state’s rights to control women’s bodies – patriarchy-centered. Under Assyrian law, if a woman caused her own miscarriage, she incurred the harshest of Assyrian penalties, those equivalent to high treason – to be impaled and not to be buried. Under Mesopotamian law, if a man caused the miscarriage of married woman, his own wife will be similarly treated. The life of the fetus was not the issue of concern, but rather it was the property rights of men, that is, their right to women’s bodies and their offspring.
What would a woman-centered decision look like? The personhood of women would be front and center. The question of whether or not women are fully human has been debated by patriarchal philosophers, theologians, and jurists for millennia, and would need to be clearly established. Also, a basis in the equal rights of women to life and liberty would be fundamental. This underlay Justice Sotomayor’s query of Scott Stewart, Solicitor General of Mississippi, “When does the life of a woman and putting her at risk enter the decision?” This equal right of women to life and liberty has yet to be fully established by the Supreme Court’s reading of the Constitution, and this country has yet to add an amendment to the Constitution guaranteeing equal rights on the basis of sex. I suggest two other important perspectives.
One, advocated by feminist legal scholar Ruth Colker, is that a woman-centered approach would necessarily be based in an in-depth understanding of the impact of abortion regulation on women’s well-being. Here are just a few examples from the “Voices Brief”[i]:
“ . . the ‘doctor’ . . . was unclean. . . He forcefully approached me to have sex with him because ‘what harm would there be under the circumstance?’ . .
. . . I was married to a man who had become a physically abusive alcoholic. We had one child, age 3. . . I knew I could not add to the work of caring for another child . . .it would have broken me.
. . . I was chemically addicted . . .
. . . I would never . . .deliberately and knowingly bring another Tay-Sachs child into the world. . . . It would be a crime to put another child through the humiliation and pain that this cruel disease inflicts.
Also, as the Webster amicus brief filed by the National Council of Negro Women, et.al. notes, the impact of restrictions on abortion access falls most heavily on women of color: “Between 1975 and 1979, several years after abortion was legalized, 82% of the women who died after illegal abortions were African-American and Latina.”[ii]
The other perspective would base the right to reproductive justice in a feminist ethic of care. Law professor Robin West has made the argument that reproductive freedom, that includes access to safe and legal abortion, is “a necessary prerequisite for nurturant relationships between the pregnant woman and the fetus, as well as between the mother and child, . . . Without that freedom, the ‘relationship’ is one of nonconsensual servitude, not nurturant, interdependent care.”[iii] She further argued that reproductive would better be viewed as the freedom “to secure women’s and children’s well-being.”[iv] One of the most unfortunate consequences of the way Roe v. Wade has been framed in the popular debate is that it casts woman and fetus, potential mother and child as legal adversaries, rather than in caring relation. The decision to continue or to end a pregnancy is deeply personal, spiritual, and relational. It is not something a state, or church, or court can know or decide. It can only be discerned by the woman herself.
Colker, Ruth. “Feminist Litigation: An Oxymoron? – A Study of the Briefs Filed in William V. Webster v. Reproductive Health Services, 13 Harv. Women’s L.J. 137 (1990), quoted in Becker, Mary et.al., Feminist Jurisprudence: Taking Women Seriously: Cases and Materials. St. Paul: West Publishing, 1994, 462.
Ginsburg, Ruth Bader, “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63, NCL. Rev 375, 382, 386 (1985).
Lerner, Gerda. The Creation of Patriarchy. New York: Oxford U Press, 1986.
Roe v. Wade. 410 U.S. 113, 1973.
West, Robin. “Caring for Justice,” New York: NYU Press, 1997, 73-74, quoted in Becker, Mary et.al., Feminist Jurisprudence: Taking Women Seriously: Cases and Materials. St. Paul: West Publishing, 1994, 474-475.
[i] The “Voices Brief” is an amici curiae brief based in letters from 2887 women who had abortions and 627 friends of women who had abortions filed for consideration in Webster v. Reproductive Health Services. Excerpts of this and the brief filed by the National Council of Negro Women, et.al.,are available in Colker, 457-462, as well as Colker, Ruth, “Feminist Litigation: An Oxymoron? – A Study of the Briefs Filed in William L. Webster v. Reproductive Health Services, 13 Harvard Women’s Law Journal, 137 (1990).
[ii] Colker, 461.
[iii] West, 473-474.
[iv] Ibid., 475.
BIO: Beth Bartlett, Ph.D., is an educator, author, activist, and spiritual companion. She is Professor Emerita of Women, Gender, and Sexuality Studies at the University of Minnesota-Duluth. She also served as co-facilitator of the Spirituality Task Force of NWSA. She is the author of numerous books and articles, including Journey of the Heart: Spiritual Insights on the Road to a Transplant, Rebellious Feminism: Camus’s Ethic of Rebellion and Feminist Thought, and Making Waves: Grassroots Feminism in Duluth and Superior. She has been active in feminist, peace and justice, and rights of nature and climate justice movements, and has been a committed advocate for the water protectors.