In the past two few years, the Supreme Court of the United States has handed down two decisions that rest upon the same fundamental assumption, which is that the American ideal of equality has been achieved. In the Dobbs v. Jackson Women’s Health Organization majority decision, Justice Alito asserted that pregnancy discrimination laws have effectively assured equal protection for pregnant people, and even went so far as to equate the decision in Roe v. Wade with Plessy v. Ferguson (the 1896 case that upheld the constitutionality of segregation) in its dismissal of the democratic process. More recently, in Louisiana v. Callais, the case which upheld Louisiana’s plan to redraw voting districts, Justice Roberts declared that racism has been overcome in America to such an extent that to continue the intent of the Voting Rights Act is itself a violation of equal protection.
I am originally from Louisiana and reflect upon the topography of my home state in my chapter in the recently published book I co-edited with Wesley Barker, titled Thresholds of Irigaray, Relation Through Difference. Louisiana (especially the southern part of the state where I was born and raised) is more of a waterscape than a landscape, the land being upstaged by bayous, marshes, canals, and (of course) the Mississippi River—that threshold between the east and west United States that serves as a dominant character in so many Southern myths and stories. My chapter explores the figure of the birth canal as a kind of threshold, challenging both the imaginary in which gestating bodies are mere containers for unborn human beings and the assertion that justice is to be found in leveling out differences between bodies. In Thresholds, I attempt to tell a different kind of story than the majority Justices’ fairytale in which racial and gender equality has been accomplished largely through legislative and judicial realization of a Constitution that was always aimed at such.
In their story, racism is dead, women have equal opportunity, and any attempt to say otherwise amounts to, well, racism and sexism. Several of my co-contributors and I have chosen to try and tell a different story, one grounded in sexual difference as a question. My version of the story draws upon my readings of Plato’s dialogues and the work of the feminist philosopher and psychoanalyst Luce Irigaray, as well as on my experiences doing reproductive justice and health equity work in the American South. My story is messy, lacking the neat borders and pithy slogans of appeals to equality-as sameness: pro-this and anti-that. In this story, people are different, and much of the telling of it must therefore begin with the caveat that admitting of differences between people does not necessarily lead to the conclusion that some people are better, more rational, more intelligent, more deserving of protection before the law, more suited to politics and public work than to caretaking or housekeeping, more, well, human, by virtue of these differences. Detailing differences is easy, even as the highest court in the land pretends they can be leveled out. How to acknowledge these differences without instantly trying to assign hierarchical values to them is the tricky part.
It’s been a tricky question for quite some time. Plato’s Socrates stumbles over it in the Republic when trying to determine how women and men could be educated in accordance with their equal ability to lead, while also accounting for the fact that some bodies gestate and give birth and some do not. Jumping ahead a few millennia, to the 1970s when second-wave feminism was in its heyday, the philosopher and psychoanalyst Luce Irigaray dared suggest that sexual difference is a genuine question rather than a foregone conclusion, and all hell broke loose (relatively speaking). She got kicked out of the Lacanian cool kids’ club and dismissed as an essentialist by other feminists. More than 50 years later, sexual difference for Irigaray is still not about rigid hierarchies and mutually exclusive sex and gender binaries. Instead, Irigaray claims that the obscuring of sexual difference in law, ethics, politics, and philosophy has led to a negation of all forms of difference and a privileging of the supposedly neutral (but really masculine) subject over sexed individuals and relationships—including legal relationships. She rejects the sex-blind morality tale of natural rights (the one the Supreme Court is telling us has finally become reality) along with equality feminism, as both depend on the idea that we are all essentially the same, even while actually defining the human being as male—which is weird, as while not all bodies give birth, all of us are born. Why try and make this fundamental and sacred aspect of human experience conform to the idea of bodily autonomy and self-determination that has historically been conferred only upon white cis men? If all bodies come from a certain kind of morphology that not all bodies share, what is a person?
Obviously, this is a big question in abortion debates in the United States. The Constitution defines citizenship but not personhood, and the highest Court in the land claims not to have an answer to this question as it pertains to abortion, although the Court has declared in several other cases (I have in mind here Citizens United v. FEC and Burwell v. Hobby Lobby Stores) that corporate entities have sufficient Constitutional personhood to exercise first amendment liberty rights. The decision in Roe v. Wade was found to rest not on any legal understanding of personhood, but rather on the right to privacy said to emanate from the Due Process clause of the Constitution. Dobbs v. Jackson Women’s Health Organization, too, spoke only to the constitutional standing of the right to privacy as regarding abortion (spoiler alert: there isn’t one anymore), and even went so far as to reassert that abortion laws/regulations are not sex-based and, therefore do not fall within the equal protection before the law also guaranteed by the Fourteenth Amendment. Even if they did, the opinion suggests that concerns about failure to provide women with equal protection have been resolved by anti-pregnancy discrimination laws. In other words, since federal law prohibits discriminating against pregnant women and people (and ignoring the fact that it still happens), equal protection before the law has been achieved, and we don’t need to protect abortion rights at the federal level. End of story.
So, to recap the current state of affairs: the due process liberty clause in the Constitution doesn’t include privacy/bodily self-determination/reproductive autonomy, and equal protection doesn’t apply because abortion isn’t about sex. Oh, and the Court isn’t going to tackle the question of what a person is, either. In his majority opinion in Dobbs, Justice Alito declared that “[o]ur opinion is not based on any view about when and if prenatal life is entitled to any of the rights enjoyed after birth” and in fact chastises the dissent for attempting to “impose on the people a particular theory about when the rights of personhood begins.” In Roe, Justice Blackmun also punted the question of personhood, writing that “[w]e need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” After laughing about the very idea of philosophers reaching consensus, we should take seriously that these Justices are pretending to engage in Constitutional analysis untainted by philosophical predispositions (and perhaps go so far as to agree with my former Constitutional Law professor Eric Segall that these Justices aren’t Judges at all).
The Roe majority wanted to balance women’s rights with the state interest in the fetus, and so they equated liberty and privacy and applied it to pregnancy up to a relatively vague point. But if abortion decisions are private ones, fetuses do not have personhood, because people have a right to equal protection before the law. For example, there is certain amount of privacy granted to families in the context of child-rearing, but that privacy does not empower parents to abuse their children. The Roe majority decided embryos/fetuses were not people whether they admitted it or not. On the other hand, Dobbs essentially says that the right to privacy isn’t a thing, thus opening the door to a hierarchy of personhood in which cis-men still have the right to privacy and everyone else’s rights are state-specific, thus thwarting equal protection. This suggests that the philosophy bit is inevitable, even if the philosophical assumptions about personhood each Court made were hidden ones. It is not that the Justices relied upon philosophical ideas about personhood that concerns me; it’s that they pretended it wasn’t their concern. When philosophers are accused of navel-gazing, I no longer take it as an insult. The navel reminds us that we are born, not made in the image of a generic human being, and that any account of personhood would do well to heed this reminder without instantly foreclosing the question with some kind of essentialist or neutral idea about sex.
Dobbs left behind a confusing and potentially dangerous landscape for medical professionals, law enforcement, the judiciary, and (most importantly) women and other people who are capable of becoming pregnant. Some states have enshrined the right to an abortion in their state Constitution as a means of maintaining autonomous female political subjectivity, whereas others consider embryos/fetuses to be unborn people with full Constitutional rights, often invoking Fourteenth Amendment “equal protection” language. In other words, the very same philosophical, social justice, and legal ideas of autonomy, individual rights, and equal protection traditionally used by the more pro-choice legislatures have also been used to confer personhood to embryos/fetuses. Perhaps Justice Blackmun was right, and these questions are not best taken up by lawyers and judges. These are philosophical-theological questions, and the old mythology of the sex-neutral subject isn’t going to resolve them. Regardless of which definition of personhood informs them, current abortion laws treat personhood as a given and fail to question the role of sexual difference and birth in human existence.
As a young (and relatively privileged) philosophy student, it did not occur to me that feminism was something I needed to explore. I had been raised by both my mother and my father to think I could do anything a man could do, and that doing what successful men do (education and subsequent career) was the goal. I fell in love with Friedrich Nietzsche (and then philosophy) and didn’t even code Irigaray’s work as feminist philosophy when I first read it in college. It was just philosophy that happened to be written by a woman. Wasn’t that what I was doing, too? By the time I finished graduate school, though, the story of the level playing field was starting to ring false. I started volunteering with a reproductive justice organization, and—in the process—I fell in love with legislative advocacy. That led me to law school, and—despite Blackmun’s cautionary tale about lawyers who legislate philosophical questions—I could never look at law/policy or philosophy separately again. Reproductive Justice is itself deeply philosophical, insofar as, not unlike Irigaray, it both asserts the need for expansive and inclusive rights while also recognizing that the question of gestating and gestated bodies is a tricky one, and that equality feminism not only left quite a few women out, but that it also hadn’t really leveled the playing field even for privileged women like me. “Roe is vulnerable,” I remember several of my mentors in the reproductive justice movement saying—even as most of the other people in my community asserted it was bullet-proof—and it isn’t enough. That stuck with me, particularly as I started doing health equity work in law school. Liberty and privacy rights don’t guarantee access, meaningful choices, or a level playing field regardless of gender.
Justice for women and other historically and currently oppressed people cannot be achieved by treating us all the same. How to understand and legislate difference is a question, and it should be. And thinking through questions is what philosophers do. Sexual difference is both inscribed in real bodies and lurking in our gender-blind laws. It is mapped onto gender and multiplied in both nature and language. As Irigaray says, we are at least two, male and female, and (at least in my preferred version of the story), more than two. What the human is not is one selfsame, neutered being, no matter what the Justices say. Tackling the question that way makes all the difference.
The Women in Philosophy series publishes posts on those excluded in the history of philosophy on the basis of gender injustice, issues of gender injustice in the field of philosophy, and issues of gender injustice in the wider world that philosophy can be useful in addressing. If you are interested in writing for the series, please contact the Series Editor Elisabeth Paquette or the Associate Editor Shadi “Soph” Heidarifar.
Jena Jolissaint
Jena Jolissaint is a licensed attorney (specializing in legislative advocacy work and training) and the Associate Dean of the College of Arts & Sciences/Associate Professor of Philosophy at South University. Her research focuses on reproductive justice, continental feminist philosophy, philosophy of law, and bioethics. In particular, she is interested in exploring how American jurisprudence might be reimagined through the question of sexual difference. Her most recent publications are “This Legal Subject Which is Not One: Luce Irigaray, Reproductive Justice, and a Jurisprudence of Sexual Difference” in Body and Religion Vol. 7 No. 2: Special Issue: Irigaray and Religion and the introduction (co-authored with Wesley Barker) and “On Birth and Other Canals: Irigarayan Thresholds and Reproductive Justice” chapter in Thresholds of Irigaray: Relation Through Difference(2026).
