Mindy Roseman –
The public/private dichotomy—so fundamental to the liberal political and economic order—produces many (if not all) of our lived contradictions, especially our experiences of inequality along the multiple and intersecting lines of race, sex, gender, class, able-bodiedness, and so on. It should come as no surprise that where the private decision making of women is at issue, the privilege of freedom from state and third party interference has been hard-fought and never fully achieved. U.S. Constitutional and state level jurisprudence on abortion is predicated on the women “in consultation with their doctors,” choosing whether to carry their pregnancies to term. This provisional grant of autonomy has provided the logic for a continual legislative claw back of the abortion right: a right to decide but not to realize (Harris v. McCrae); a right to decide but only upon the due burden of state mandated reflection and guidance (Casey v. Planned Parenthood of Pennsylvania); a right to decide but not to elect the safest procedure (Gonzales v. Carhart). Women, this jurisprudence affirms, no matter their race or class, cannot be trusted.
Mistrust in women runs deep in current legislative efforts to wrest their private decision-making autonomy away. It hardly announces itself as such in the bills; rather, it comes to us through an appeal to humane and liberal values that impart to abortion-access restrictions an air of legitimacy. The latest obfuscation—restricting abortion in the name of combating “eugenics”—recently surfaced anew in the 6th Circuit’s decision in Preterm-Cleveland v. Himes, decided two weeks ago. The case concerns H.B. 214, an Ohio law that criminalizes abortions of Down syndrome affected pregnancies. Doctors who know (or have reason to know) that the woman wishes to terminate a pregnancy because of a Down syndrome diagnosis, and perform such an abortion risk a felony conviction, 18 months’ imprisonment, license revocation, and civil penalties. The U.S. District Court issued a preliminary injunction against its implementation and enforcement, which the US Court of Appeals for the 6th Circuit upheld, 2 to 1.
I will not review the reasoning behind the two-judge majority opinion. Instead, the dissent deserves unpacking, as it may well be echoed in any eventual Supreme Court review. This dissent is particularly noteworthy because of the way its adoption of language with a traditionally emancipatory valence is meant to misdirect. What appear to be individual, private decisions are in fact conditioned by state policy. Much turns on state action. This case highlights how abortion opponents intentionally confuse individual decision-making and state policy, with an aim to legitimate unwarranted interference in the exercise of women’s autonomy. Ohio H.B. 214 shifts our attention away from what the state is and is not doing for pregnant people and for the children they bear, and burden their individual decision making instead.