Tuesday, July 10, 2018

The Coming Era of Forced Abortions

"We can't restore our civilization with somebody else's babies."

That is a direct, verbatim quote from a sitting member of Congress -- namely Representative Steve King (R-IA).

The "somebody else" King was referring to was immigrants -- specifically, brown immigrants from Latin America. Them and their children, for King, represent an existential threat to the American republic. And while King stands apart for the explicitness with which he indulges in racist rhetoric, he is not alone in the construction of immigrant births as threat. The term "anchor baby" -- used by Donald Trump, yes, but also Jeb Bush -- also presents it as illicit, even dangerous, when immigrants give birth inside the United States.

This is not a post about immigrants, exactly. It is a post about abortion. And particularly, it is a post about the possibility of government actors coercing or compelling women (particularly women under the custodial authority of the state) to have an abortion.

People scuff at this prospect -- less based on law than based on their own lack of imagination. Who in government might want mandatory abortions? Why, the pro-life movement wouldn't stand for it!

Which is why I bring up the view of Mr. King and his cohort. It is entirely plausible that King and his cohort could come to believe that it is permissible -- even a national security imperative -- that immigrant women not be allowed to birth their "anchor babies" on our shores. They already possess and wield the language that presents the prospects of such births as a wrong, even a threat. Do you really think him and his would really have a problem with someone forcibly terminating an immigrant mother's pregnancy? Do you really think they'd even struggle to justify it? The only question would be whether they'd politely avert their eyes or outright endorse the practice.

Everything about the contemporary state of right-wing politics suggests that this is not an idle fear. The average conservative hardly bats an eyelash if horrific conditions in ICE custody cause immigrant women to miscarry. Pro-life has never extended that far, after all -- it is a movement primarily about controlling women, not saving babies. Forcible births and forcible abortions are two sides of the same coin; the preference depends on the woman involved.

Or take it another step: Remember that infamous case where the Trump administration tried to prevent an undocumented immigrant teenager from procuring an abortion? Judge Kavanaugh's dissent assumed for sake of argument that the girl had an abortion right, but argued that the government could temporarily refuse to honor it if it could secure her an immigration sponsor with sufficient rapidity. But one Judge, Karen Henderson, went further -- in her opinion, undocumented immigrant minors exist in a lawless space, devoid of any rights over their own body at all by virtue of their illegal entry (Judge Kavanaugh, for his part, did not join that opinion). The logic of Henderson's dissent, at least, would apply equally if the government -- whipped into a hysteria that "demographics are destiny" (to use another Steve King-ism) -- sought to compel her to abort her child.

The thing is, Roe v. Wade does not protect, or does not solely protect, a woman's right to an abortion. It protects a woman's right to choose an abortion -- or not. And in a world without Roe, it isn't clear what judicial doctrine would render it unlawful for a government actor to compel or coerce a woman (particularly a woman under custodial authority of the state) to have an abortion.

Indeed, it's far from clear what legal principle absent Roe would or could give a woman -- again, especially women under the custodial authority of the state (which might include the incarcerated, immigrants, and some minors) -- a constitutional right to continue her pregnancy as against a state official claiming authority to compel her otherwise. Roe answers that women have a right to bodily autonomy which vests in them a private right to make reproductive decisions for themselves. Knock off Roe, eliminate the constitutional reproductive autonomy right, and it's replaced by ... what exactly? 

I don't think there's an answer -- at least, not one that doesn't swing entirely in the other direction and say that abortion is constitutionally impermissible (which, of course, would remain blissfully apathetic regarding the rights of women in favor of waxing lyrical over the rights of blastulae). So imagine this: Roe is overturned. The issue of abortion is, as promised, "returned to the states". A few months later, a prison guard rapes an inmate and then, to cover up the crime, forces her to terminate the ensuing pregnancy. Is the latter act a constitutional violation? I don't know that it is. Is it a clearly established constitutional violation (thank you, qualified immunity)? I don't see how. The constitutional underpinnings that say women cannot be forced to involuntarily terminate their pregnancies rest entirely on Roe v. Wade -- if that's overturned, the best you can say about the state of that right is that it is up in the air.

It's well known by now that the end of Roe will fall hardest on the poorest, most marginalized, and most vulnerable women -- not surprisingly, the ones for whom "liberty" is barely given the pretense of acknowledgment whilst government authority is allowed near-boundless jurisdiction. But even this gives contemporary conservatism too much credit, as it suggests that ending abortion is the point. The fact that pro-life politics virtually never come tied to any sort of tangible commitment to expanding pre-natal care is a clue that the birthing isn't the key variable -- the control is. Sometimes you want to control women via compulsory motherhood, and sometimes ... you don't -- but "pro-life" isn't going to do any real work one way or the other. The tides of the contemporary right -- replete with White nationalist themes, anxious to the point of obsession about becoming a minority in "their" nation -- hardly are ones inclined to respect the rights of "someone else's babies."

Think I'm being hyperbolic? Answer me this: If reports emerged of ICE agents forcing immigrant women to abort their children, would Steve King utter a word against it? Would his "pro-life" instincts kick in? Or would he find that he's ... fine? Okay, even?

We know the answer. And the thing is, you don't have to think Steve King is the be-all end-all of modern conservatism to concede that he represents a real and growing portion of it -- a portion that no doubt has adherents amongst ICE enforcers, amongst authoritarian prison guards, amongst certain extreme (but less so everyday) pockets of fanatical racist and xenophobic authoritarians. If you don't think some among them aren't going to start endorsing "extraordinary measures" to ensure no babies get anchored, if you don't think some among them aren't going to turn to forced abortions as a means of covering up their own rape culture, you're deluding yourself.

And ultimately, that's all that's necessary, because we won't be talking about forced abortions as some sort of nationwide policy. We'd be talking about a patchwork of incidents and abuses and cover-ups and "oversights" that just so happen to fall upon the sort of women that the right doesn't care about in the first place. It will be so easy to ignore them, so easy to say they brought it on themselves, so easy to let the majestic lattice of qualified immunity and formalist textualism conclude that they have no remedy.

I think we'll see it. I really do (I know that if we do, the great bulk of the American conservative movement will not care one whit about it). It's not going the only part of a Roe-less future, but it will be a part. Because when your jurisprudence denies that pregnant women have the right to choice what happens to their own body and your politics grows ever more ravenously xenophobic and your acknowledgment that immigrants, the poor, and the incarcerated nonetheless have rights shrivels into nothingness -- the result of that cocktail isn't any mystery.

2 comments:

Wesley Sandel said...

People who torture will torture anyone, including you and your children.

Professor Chaos said...

In the US-controlled Marianas Islands. championed by Tom DeLay as a great example of capitalism, women are often forced to get abortions in order to stay employed in American factories and no Republican has ever batted an eye.