I was 18 years old when the United States Supreme Court established the constitutional right to abortion. It seems that I will live to see it removed almost 50 years later. A first draft of the ruling written by Judge Samuel Alito has been leaked to the media. Much has already been written about the legal arguments made in the original Roe v. Wade ruling and those in the draft—important, of course—but I am much more interested in the broad philosophical and political reasons driving the anti-abortion forces in my country and in others.
In his draft, Alito refers several times to the “unborn”, an unalterable category that encompasses all stages of gestation, from the fertilized cell or zygote to the human fetus minutes before birth. The fact that this unborn entity is within and physically attached to a living, breathing, thinking mature person is often not mentioned in anti-abortion discourse, because it is necessary to unlink the zygote, embryo, and fetus from the woman. If the attention is transferred to the situation of the woman, her body, her autonomy and the fact that, for months, it is absurd to isolate the “unborn” from her, the perspective changes.
I see pregnancy as a complex process of separation during which one becomes two.
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Those who promote a woman’s right to abortion do not usually appeal to biological data. It is not strange, because the politics of misogyny turns women into baby-making machines over and over again. Actually, pregnancy is indifferent to gender. Trans men give birth, but it takes an intact female reproductive system. If the zygote, which becomes a ball of constantly multiplying cells, implants in the uterus—a complicated and little-known process—then the placenta and embryo begin to form. But during the first trimester, the placenta doesn’t work. The embryo feeds directly on the lining, from which it receives the lyrical name of “uterine milk”. In the second trimester, the placenta, the mediating organ of pregnancy, begins to supply nutrients and hormones from the woman to the fetus, keeps their blood systems separate and organizes cell exchange, microchimerism, between them.
When a woman gives birth to a child, the child is attached to her by the umbilical cord, which must be cut; and labor does not end until the placenta detaches from the uterine wall and is expelled by the woman. Anti-abortion rhetoric never mentions the placenta and the navel because it sees the woman as a passive container for “the unborn.” This is biological nonsense. The fetus depends on the body of its mother, and the radical dependence on her does not end with birth. If there are no other people to care for them for years, human children die. We are not lizards.
Anti-abortion rhetoric sees the pregnant woman as a passive container for the ‘unborn’
The boundary between the pregnant person and the embryo that develops into a fetus is not well defined. The contemporary philosopher Elselijn Kingma argues that the physical connection of pregnancy makes embryos and fetuses “parts” of the maternal organism until birth. It is an argument about the substance, the woman as an essential being of pregnancy; his is an either/or stance. I see pregnancy as a complex process of progressive separation during which one becomes two.
For millennia, philosophical arguments have focused primarily on the moral category of the concepts. Is a person? Are you a potential person? Aristotle believed that the male sperm contributed the animate form, or soul, to the fetus, while the female sperm contributed the matter, the inert body. However, the fetus did not have a soul at the time of conception, but only later in gestation. In the case of the male, the soul arrived after 40 days. The woman had to wait 90 for hers to arrive. And the influence of Aristotle lives on. Thomas Aquinas adopted the theory that there is no soul at the moment of conception. The Catholic Church vacillated about the acquisition of the soul for centuries, until, in 1869, Pope Pius IX declared that the fertilized egg was “a soul.” Now genetic determinism is used against abortion. In an article written in 2007 for a Vatican publication, Enrico Berti relates “the sequence” of the “components” of DNA with “a formula” or form. If genes are the plan or code of an immutable essence of being, then the zygote with genetic material from both parents is already “a soul”.
The genome is vital for the development of any organism, including the human, but it is not an abstract blueprint of our characteristics, but rather part of the material reality of each cell, and its actions depend on its cellular environment. Epigenetic studies have shown that stress from outside an organism can affect gene expression. The genome is not a predestined soul, but part of the complex development of living beings.
Judge Alito, a conservative Catholic, does not use the word “soul” or appeal to Aristotle, but treats “fetal life” as a fixed state, strangely separate from the pregnant person. His legal arguments are based on originalism, a legal philosophy that today constitutes the majority on the Supreme Court. Originalists believe their job is to reveal the “objective” public meaning of the Constitution at the time it was written: 1787. If there is an amendment contained in a particular resolution, then it is subjected to its own temporal scrutiny. In this case it is the 14th amendment, of 1869, which established citizenship for all people born in the United States, that is, including former slaves, and includes an equal protection clause that was used in the Roe case to argue in favor of abortion as a right to privacy. Originalism does not ignore legal precedent, but even so, it is essentially a philosophy of immobility. It reifies concrete historical moments, but ignores the dynamic course of history. Its legal rigidity is similar to that of the anti-abortion case, which freezes “the unborn” as fully formed “souls” waiting to be released from captivity in the womb.
Alito’s argument is expectedly narrow. He maintains that the Constitution says nothing about abortion. He does not say so, but it is a short document, deliberately vague and leaves many things unmentioned. Although the constitutional text begins with such an emotional flourish as “We the people”, the judge does not say that in that “we” no person who had been, was or could be entered. In 1787, “we” referred to “white men of property.”
In 1880, doctors had already allied themselves with the State to legislate on the female body
Because the US Constitution is based on English common law, Alito draws on authorities and cases from earlier centuries to argue that there is an “unbroken tradition” that made abortion a crime from “the earliest days of the common law until 1973.” In fact, when the Constitution was written, abortion was widespread, common and legal until the first time the fetus felt moving, that is, the fourth or fifth month, which was a subjective internal perception in the opinion of the woman herself. . Although, according to customary law, a woman needed her husband’s permission to do many things, abortion was not one of them. The irony is that, after the legalization of abortion in the United States, almost all abortions in mid-pregnancy or later have been subject to legal restrictions. The right to abortion returned to being a norm of common law.
In the United States, from the 17th century until well into the 19th century, healers, apothecaries, and physicians advertised and sold abortion products “to restore menstruation.” It was big business. Indigenous women had long used herbs to induce abortion, and even slave women, whose body was owned by their master and who suffered frequent rape at his hands, had formulas to get rid of unwanted pregnancies. Early abortion was ubiquitous and accepted. Alito recognizes the threshold of internal movements and then discards it because “the norm was abandoned in the 19th century”, in 1869, the second date that the magistrate, with his originalism, freezes in time.
There is a broad academic consensus on why the moment of noticing the movements of the fetus began to lose importance in the mid-nineteenth century. Abortion services were mostly run by people outside the medical profession, including many women, until doctors began organizing to kick out “irregulars.” Poor, single women weren’t the only ones seeking help. More and more white, middle-class, married, Anglo-Saxon women were seeking abortions, while millions of Irish, Italian, and Jewish immigrants from Eastern Europe were arriving. In 1860, the country was divided by slavery and the Civil War had just begun. The feminist movement was gaining strength, was promoting women’s access to professions, including medicine, and defended “voluntary motherhood”. The doctors resisted. They pressured the legislative chambers to ban abortion as a moral vice and resorting to nativist rhetoric. The feticide was racial suicide. Horatio Storer, an obstetrician who ran the organization Doctors Against Abortion, sounded the alarm by asking if Western territories would “fill up with our children or those of foreigners.”
The old fantasy of the autonomy of the fetus also contributed to this reflection. In 1857, an American physician, Jesse Boring, expressed male fear and desire when he denied a biological fact that had already been established: “The fertilized ovum is not only an embryonic male, but something even more important, an independent and autonomous being, that is to say, that it contains in itself the materials to develop, as separated from the mother as from the father […] doesn’t really exist […] no real link between the placenta and the uterus.” The crusade achieved its goals. In 1880, the doctors had already allied themselves with the State to legislate on the interior of the woman’s body. What she wanted ceased to matter.
Alito alludes to this well-known story, but to make fun of it: “Are we really going to believe that the hundreds of legislators whose votes were necessary to enact these laws did so because of their hostility against Catholics and women?” Yes. And also against others. Misogyny, racism, religious intolerance and xenophobia are ingredients for disaster. When fascists take power, whether slowly or slowly or suddenly, laws to control reproduction are not long in coming. This was the case in Hitler’s Germany, Mussolini’s Italy and Franco’s Spain.
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