When I joined a protest the day after the leak of Samuel Alito’s draft opinion overturning Roe, rage overwhelmed me. My rage was not for the end of Roe—which I’d known was coming—but, oddly, at the protest: the same people, the same signs, the same chants. As the mother of a friend, marching alongside us, remarked, “I’ve been marching for this issue in this square since 1970.” This moment is the product of a long and calculated set of moves, dating back to the 1970s, to engineer a political wedge issue, a social movement, a juridical philosophy, and a Supreme Court, all to reverse Roe. And so, the sameness of the protest felt less like an act of deeply rooted resistance than a reminder of how thoroughly we have failed to ground and codify a fundamental right.
When I was in graduate school, I had an abortion. On the day of my procedure, my local Planned Parenthood was mourning the loss of a staff member and put procedures on hold for several hours to attend the funeral. I, and the other 12 women waiting for their abortions, spent several hours together in hospital gowns, awaiting their return. As we waited, we told our stories.
Of the 13 of us, 9 said that they were pro-life, against abortion in all circumstances—except theirs. The majority were mothers who could not afford another child; several were trying to escape abusive relationships. One had a condition that made pregnancy life-threatening. As we talked, I—a budding philosophy professor at the time—pushed on their assertion that they were pro-life. Would they, I asked, vote against the right to abortion? The majority said yes, that abortion was wrong and ought to be outlawed—and then asserted, again, the reasons why their abortions were an exception to this rule.
These women were on my mind at the protest. I think, often, about their wrenching guilt and certainty, how forcibly they argued against the right to abortion, even as they exercised it. And as a philosopher, I think about what arguments might have given them some peace, supported them in thinking consistently with their choices, in understanding their choice as both necessary and a choice they were entitled to make.
Reproductive Justice, guided by Black women’s insights about the full range of reproductive injustices—from forced reproduction under enslavement to forced sterilization to racially disparate maternal mortality rates—is one such argument. Reproductive Justice broadens “reproductive rights” to include three central rights: the right to have a child, the right not to have a child, and the right to parent children in safe and healthy environments. This framework takes up the full range of social, political, and economic questions that impact reproduction, connecting debates about abortion and contraception to debates about maternal health and access to debates about health care, housing, schools, gun control, police brutality, and environmental justice. Because it sees these issues as necessarily intertwined, Reproductive Justice is a coalition-building model, a broad platform within which many varieties of feminism, of religious convictions, and of struggles against racism, are called to work together. Alexis Shotwell has described Reproductive Justice as a model of “aspirational solidarity,” a vision which calls many movements with disparate priorities to work together towards a shared vision.
Even as we broaden the conversation about reproductive justice, we need to rethink our understanding of abortion itself in ways that better align with contemporary understandings of women’s rights to their bodies, which have transformed dramatically since Roe was decided.
In the wake of the MeToo moment and ongoing revisions to sexual assault laws and policies, feminists have succeeded in transforming our understanding of sexual consent. We’ve shifted from a framework in which consent is taken to be more or less conclusive, to a model of affirmative consent, in which we understand that consent is never conclusive. This means that, while I may have said yes to sex 20 minutes ago when we got started, I may now prefer to sleep, and I’m entitled to say no, whatever my reasons for doing so. There is no point in sex beyond which it’s okay to have sex with me against my will.
But one of the curious features of affirmative, provisional consent is that we seem to assume that it holds for sexual use of my body, but not for the repercussions of sex—namely, not for pregnancy. In other words, the law assumes that I can still say no at any point during sex, but that at some point during pregnancy, I lose the right to refuse to allow my body to be used against my will. Under the viability standard, the provisional consent I grant during sex is transformed into conclusive consent to have my body made use of during pregnancy.
Obviously, there’s a critical difference here: if a sexual partner disregards my “no” and uses my body against my will, then they are assaulting me. A fetus does not assault me, precisely because a fetus is not the sort of thing that could commit assault. But when the state intervenes on the fetus’s behalf, then it is reasonable—given this conception of provisional consent—to suggest that the state is assaulting the pregnant person, by forcing them to remain pregnant against their will. And, just as we have come to understand sex without consent, or after consent has been rescinded, as a grave violation, we should understand pregnancy without, or beyond, consent as a similar kind of visceral violation: one that subjects pregnant people to a deep sense of invasion, physical and psychological hardship and extreme pain and trauma, to say nothing of the deep moral burden of bearing a child one does not wish to raise. And we should, likewise, reframe the experience of labor against one’s will as one of the most extreme forms of torture a person can be subjected to.
One philosophical resource that can clarify the comparison I’m suggesting is found—surprisingly—in the political philosophy of Immanuel Kant. While Kant has often been deployed in arguments against abortion, or in arguments defending the viability standard, I’ve argued that we can find in Kant a justification for the right to abortion at any stage of pregnancy, for any reason. Kant has a rigorous defense of our rights to our bodies, which has often served as a philosophical foundation for feminist theorizing of sexual consent as necessarily provisional.
Kant’s account of law rests on the distinction between innate right and private right. Innate right refers to the natural right to freedom we are born with, while private right refers to rights we acquire, like possessive rights. We need the state, Kant argues, to protect and enforce these acquired rights. But, if possessive rights are the reason we need the state, innate right is the reason we have standing in the state. Innate right is our right to freedom, which is necessarily enacted through our bodies.
This distinction insists that our bodies aren’t things we have rights to, like other kinds of property. Our bodies are ourselves, the condition of our freedom. And so the law can have no jurisdiction to adjudicate the relationship between a woman and her body since that relation is the foundation of her status as a rights-bearing agent.
It’s easy to see, however, why we make this category mistake with regards to pregnancy. Kant argues that, in the state of nature, the problem of possessive rights only arises when more than one person competes over these rights. When we treat pregnancy as a condition in which pregnant persons and fetuses have competing rights, we conceive of pregnancy as a problem of private right, of competing and conflicting claims that must be adjudicated by law. But this misunderstands the kinds of rights involved: the right a woman has over her body is not a possessive right, something to which someone can have a competing claim. It is innate right: the right to herself. The very idea that a woman’s interests should be “balanced” with the state’s interest in protecting the life of the fetus fosters this category confusion, which violates innate right.
Kant’s account of innate right as a robust defense of embodied rights has been important to rethinking sexual consent, and it has valuable resources for the debate about abortion. But this isn’t the only reason to turn to Kant on this question.
In a curious passage in the Doctrine of Right, Kant grappled with the problem of reproductive injustice in his own time: he examines the problem of infanticide—and proposes mercy for the infanticidal mother. Kant’s engagement with this question was not incidental: infanticide was the most common cause of executions in Prussia in the late 18th century, and Kant, like many of his contemporaries, was deeply troubled by the brutality of a state which killed so many young women for a crime that was so clearly a response to unjust social conditions. In a moment where multiple states may legislate criminal penalties for abortion, Kant’s reflections on this question are prescient.
Kant frames infanticide as a form of self-defense for a woman forced into a pregnancy against her will, in a social order that will punish and ostracize her and her baby. Seen in this way, infanticide is not a moral problem faced by the mother alone, but a problem of systemic social injustice, exacerbated by a rigid legal code. Kant takes the monstrous woman intent on killing her baby and asks us to consider her as a rational agent committing a monstrous act because of a lack of alternatives. In this sense, Kant’s infanticidal mother finds herself in a position akin to that articulated by the women in the abortion clinic with me years ago. And Kant argues that this places the infanticidal mother—like the pregnant person—in a state of nature.
I should pause here and clarify: this is not a defense of infanticide. We can and should distinguish between the status of the infant and the fetus—in ways, in fact, that abortion law has long failed to do. Viability claims tend to confuse the claim that a fetus could be viable outside the mother’s womb with the notion that a fetus has rights as if it were outside the woman’s womb, which it is not. The fetus is by definition inside the woman’s womb. And so its standing hinges on our understanding of the place of the womb in law.
Kant’s deployment of the state of nature offers us several resources for thinking about pregnancy. To say pregnancy is, legally speaking, a “state of nature” is not to designate female bodies as some kind of wild space, but to underscore the degree to which the unity of the will and the body is prior to law, not subject to the adjudication of law. Because a fetus’s survival hinges on a claim to the pregnant person’s body, it asserts possessive rights to that body, as if in a state of nature. But like all claims to rights in a state of nature, this right can only be provisional. It is not enforceable by the state. Rather, the status of this provisional right can be determined only by the pregnant person, who has the sole epistemic authority to determine the standing of that right within her own body.
This is what I wish those women in the abortion clinic years ago had believed about themselves. I wish that, instead of a framework that led them to cast themselves in a position of self-defense—into, in other words, a state of nature—to justify this choice, they had understood that our right to our bodies is a right to ourselves, and thus, our right to have rights. And that, therefore, to have rights is to have moral and epistemic authority over ourselves, our bodies, and our reproductive and sexual choices. This is where philosophy has a critical role to play in the ongoing fight for reproductive justice.
The Women in Philosophy series publishes posts on women in the history of philosophy, posts on issues of concern to women in the field of philosophy, and posts that put philosophy to work to address issues of concern to women in the wider world. If you are interested in writing for the series, please contact the Series Editor Adriel M. Trott or the Associate Editor Alida Liberman.
Great blog about abortion.