Reframing Abortion as a Public Good

“Texas has compelling interests from the outset of a woman’s pregnancy in protecting the health of the woman and the life of the unborn child,” reads SB8, the state’s near total abortion ban, which went into effect September 1 when the Supreme Court declined to enjoin it. On October 7, in response to an emergency request from the U.S. Department of Justice, a federal judge blocked the law. “Women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution,” wrote U.S. District Court Judge Robert Pitman.

In a 113-page ruling, Pitman firmly put the lie to SB8’s justification, reiterating the proven safeness of abortion and reprising the state’s long history of legislation undermining women’s health by crippling providers’ ability to perform abortions in a medically sound and timely way. “Other courts may find a way to avoid [the] conclusion” he reached, noted Pitman. He was likely alluding to the Supreme Court, which on December 1 will review a Mississippi statute banning abortion at fifteen weeks, which directly challenges Roe v. Wade. The decision is widely understood to indicate the conservative majority’s willingness to severely weaken Roe or even overturn it.

But whatever SCOTUS does, the anti-abortion movement will not be stopped. It will carry on as before, powered by the same morally and politically muscular message that SB8 communicates: The government cares about what happens to women’s bodies. And when Texas deputizes the masses to enforce its ban through civil lawsuits, it is not just slithering out of judicial scrutiny (a strategy Pitman also excoriates). Nor is it simply doing what red states do—privatize government. SB8 tells the world that pregnancy and birth are not only the state’s business. They are everybody’s business.

The antis, in other words, uphold a compelling public interest—a collective moral obligation—in eradicating abortion. It takes a village to gestate a child.

Feminists fight for pregnant people’s and fetuses’ health too—for universal, affordable, accessible reproductive healthcare. But we have not boldly made an opposite, equally powerful case: The right and ability to terminate a pregnancy safely and without cost, bias, or stigma is a guarantor (if not the only one) of the existential equality and human flourishing of all uterus-bearing people.

States have a compelling interest—a profound obligation—to defend the right to abortion. Abortion is a public good.

Why haven’t we linked abortion to the commonweal?

The answer lies in Roe v. Wade and in a strategy, conceived and led by a liberal, largely white advocacy community, that depends on Roe to protect abortion and therefore makes the defense of Roe­ its premier organizing goal. To elevate Roe in this way is to accept a compromise as the sine qua non of a movement: reform of abortion laws rather than their total repeal. It is also to hew to a legal logic that begins with a constitutional right to privacy. From privacy follows “choice,” an individual act implying freedom unfettered by structural impediments such as poverty or race. But the private abortion decision Roe safeguarded in 1973 is also a fantasy, for it occurs in a context foreign to many Americans then and to almost all today: a stable, affordable doctor-patient relationship. 

With this strategy, a struggle for freedom from laws devolved into a legal sub-specialty. A cause allied with the women’s self-help health movement and the demedicalization of pregnancy and birth became a dependent of the healthcare profession. A movement with roots in the left was captured by the neoliberal myth of individual self-determination. Inside this narrow conceptual corridor, the opposition could pick off bits of the right to abortion one by one, like shooting targets at a firing range. Privacy promised autonomy, but as the space for “choice” contracts, privacy leaves the pregnant person on her own.

A right resting on Roe dies with the death of Roe. In the short term this will be a catastrophe; in states like Mississippi, Oklahoma, Texas, and dozens of others, it already is one. But paradoxically, losing Roe might force us to rebuild a movement, one based on the assertion of reproductive rights and sexual freedom nested within a vision of broad social justice.  

Like all of U.S. political, social, and economic culture, our Constitution enshrines individual liberty. Roe v. Wade is based on the apotheosis of individualism, privacy. In 1965, Griswold v. Connecticut established the right to “marital privacy” in the use of contraception. Eight years later, Roe extended the right to abortion. The right to privacy is not named in the Constitution but exists within the so-called “penumbra” of other enumerated rights, as protected by the Ninth Amendment.

But privacy was an equivocal, never absolute, right. “Appellant would discover [the right to abortion] in the concept of personal ‘liberty’ embodied in the Fourteenth Amendment's Due Process Clause,” wrote Justice Harry Blackmun for the majority, “or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras.” But, added Justice Byron White, the court was doubtful about “an unlimited right to do with one's body as one pleases.” Indeed, precedent legitimated the regulation of abortion, its permissibility and medical delivery, to protect both the pregnant woman's health and “the potentiality of human life.”

For the abortion rights movement, “Privacy (Limits May Apply)” was not a slogan to rouse the troops. In fact, even before Roe, activists recognized that Pro-Life had the rhetorical edge. In a 1972 memo Jimmye Kimmey, executive director of the Association for the Study of Abortion (ASA), proposed two alternatives, Right to Choose and Freedom of Conscience. Kimmey liked the former as catchier and more active, but also hoped someone would come up with something better than either. No one did. And as the right made abortion a dirty word, “choice” gained favor as a euphemism, not for its strength but for its softness.

There’s another reason “choice” stuck: It sounds like an advertisement for Burger King. Choice is a consumerist concept and a neoliberal myth. If you have no health insurance, if your wage doesn’t cover the rent, much less rearing a child from crib to college, if you live near a toxic waste dump that gives your kid asthma, you must have made some bad choices. And if you were casual about contraception or the condom broke—well, you made some really irresponsible choices. Suck it up.