Abortion and the Law’s Control of Bodies

In yesterday’s confirmation hearings for Supreme Court nominee Brett Kavanaugh, Senator Kamala Harris of California, a likely presidential candidate in 2020, asked a perplexing question, and Kavanaugh provided an even more perplexing answer.

Kamala Harris: “Can you think of any laws that give the government the power to make decisions about the male body?”

Brett Kavanaugh: “I’m not… I’m not thinking of any right now, Senator.”

I say “perplexing” because every law, with the exception of thought crimes, makes decisions about bodies, because every law, with the exception of thought crimes, is about telling us what actions we can, can’t, or must take.

Take speed limits. The law says I can’t drive faster than 65 miles per hour on this stretch of freeway. In practice, what this means is that the lawmakers have decided that I cannot use my body to accelerate a car above 65 miles per hour. If I fail to follow the law — if I do use my body to press the gas pedal such that the car goes above 65 — I will be punished, assuming I’m caught.

We can tell the same story for any other law you might think of. The simple fact is that law is always and only about setting up a system of rules that “make decisions” about permissible actions. Thus Harris’s question is perplexing and so is Kavanaugh’s stumbling for an answer, because the answer is obvious. Are there laws that make decisions about the male body? Yes, basically all of them. Except for laws that can only possibly ever apply to women’s bodies. (There are, obviously, laws that are just as biologically limited in their reach, but on the male side. The law requiring all men to register for the military draft is one.)

Of course, Harris isn’t interested in laws generally. She’s interested in Kavanaugh’s views on abortion. She, like many other Democrats is worried that Kavanaugh will some day, if confirmed, vote to overturn Roe v. Wade. And, like many pro-choice Americans, she’s framed the issue of abortion as one of “controlling women’s bodies.” That why she asked Kavanaugh if he could think of any laws restricting the male body in such a way. But her question is confused, as we can see by seeking to clarify it in two possible ways.

The first would be rephrase it as “Can you think of any laws that give the government the power to make decisions about the male body [in precisely the way ani-abortion laws make decisions about the female body]?” Answering the question interpreted this way, however, exposes it as terribly uninteresting, so uninteresting it wasn’t worth asking in the first place: “No, I can’t think of a law that gives the government power to make decisions about the male body in the way an anti-abortion law would regarding the female body because, by simple biology, only women can have abortions.” (We needn’t get into the application of this to trans men here.)

Alternatively, we can interpret the question as asking, “Can you think of any laws that give the government the power to make decisions about the male body [analogous to an anti-abortion law saying a woman cannot act in such a way as to cause the death of a fetus]?” This is a much more interesting take on the question, but it is also one that exposes what strikes me as an obvious mistake in the way the pro-choice side articulates their dispute with the pro-life side. Namely, pro-lifers frequently act as if the question of the moral status of the fetus is obvious and settled, and then assume — or act as if they assume — that pro-choicers must be building their case on some other grounds.

To unpack this, look at it not from Harris’s perspective but from the perspective of someone who believes abortion is wrong and ought to be illegal. For them, outlawing abortion is no more motivated only or chiefly by a desire to control women’s bodies as the military draft is about controlling men’s bodies. That country is an outcome of the law, yes, but it’s not the motivating aim of the law. In the mind of a pro-lifer, a fetus is a person, people have rights, and one of those is the right not to be killed. Pro-choicers accept parts two and three of this without objection, or otherwise they’d be against murder laws. The difference is only with part one. Pro-lifers believe a fetus is the kind of thing we call a person with rights, and that the right against being killed while innocent is absolute. (The “while innocent” part is important, because otherwise it would be impermissible to kill in war, or as part of a death penalty. We might have reasons to think both of those are wrong, of course, but that’s a distinct matter from the particular question at hand here.) Pro-choicers, on the other hand, believe either that the fetus is not the kind of thing we call a human with a right to life or that it is, but its right to life is not as absolute as that of other types of humans, and so can be overridden by the mother’s wishes or desires.

Thus if we take a charitable view of the pro-life position — and we should, because charity is a virtue, and strawmanning is wrong — an anti-abortion law is no more and no less about controlling women’s bodies as the law that say I can’t kill my children is about controlling my body.

By assuming this not to be the case, by believe that pro-lifers want to control women as opposed to wanting to prevent the deaths of what they see to be humans with absolute rights, Harris and others sharing her position end up in confused positions like the one on display in her questioning of Kavanaugh, and so accomplish little in resolving — politically, ethically, morally — this supremely important question in American law.

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