Liberté, if not yet égalité

Joan W. Scott

At a moment when the world seems very dark, with wars raging in Europe, Africa and the Middle East, and with authoritarian leaders insisting that women’s natural role is to reproduce the family, the race and the nation, the passage of the French constitutional amendment protecting freedom of access to abortion brings a ray of hope. The long struggle to win recognition of the need for women to control their own bodies has resulted, if not in complete victory, at least in a major step forward. There is much to be celebrated here.

Still, there are some concerns. Under the new amendment, abortion is legal only until fourteen weeks into a pregnancy (exceptions can be made when a patient’s mental or physical health is at risk or for certain foetal abnormalities, but those have to be assessed by some medical or legal authority). There is also the matter of financial and geographical constraints on access. But most concerning is the language of the amendment: the constitution grants ‘freedom of access’ to abortion, but does not guarantee abortion as a woman’s right. Bodily autonomy, bodily sovereignty is the right that feminists have long demanded as a measure of their equality with men; that right has not yet been enshrined in the French constitution.

The US experience is reason to worry. The right to bodily sovereignty was not the right protected in 1973 by Roe v. Wade, which was overturned in summer 2022 (and whose overturning inspired the current French action). Instead, abortion in the US was legalised under the Fourteenth Amendment’s right to privacy. By opting for privacy rather than equality, the US Supreme Court recognised and left in place a tension between the interests of women in their bodily autonomy and those of the state in controlling its population (to guarantee the reproduction of the nation). The question of who could determine the fate of the foetus was the focus of this tension. The court tried to resolve it by using a test of viability: that is, of the possibility for the foetus to survive outside a woman’s body. Women could opt for abortion until the foetus was viable; then the state’s interest would kick in.

While innovative medical technologies have brought the threshold of viability (and so enabled the state’s interests to kick in) earlier and earlier, right-to-life advocates have increasingly turned their attention to the status of the foetus. Their arguments – based on questionable theological interpretations – have redefined the foetus as a person, with rights that the state has to protect against the ‘murderous’ impulses of the woman in whose body the foetus is temporarily lodged. Some right-to-lifers consider personhood to begin at conception and would make it a crime to destroy the ‘baby’ even when it is a mere clump of cells. In this way, the state interest in controlling women’s reproductive activity is redefined as a juridical need to prevent a crime perpetrated by one citizen (the pregnant mother) against another (her unborn child).

The Dobbs v. Jackson decision of 2022 denied that women had a constitutional right to abortion, leaving it to the individual states to pass laws about it. While the majority of the Supreme Court justices invoked what they deemed historical precedent (essentially, that women’s rights were not what the framers of the Fourteenth Amendment had in mind), the torrent of misogynist legislation the decision has unleashed in red states uses the issue of foetal personhood to legitimate their actions.

There are now laws in some states that prohibit abortion even in cases of rape and incest, even when the life of the mother is at risk. One legislative proposal (not passed) in Missouri sought to ban pregnant women from leaving the state to obtain an abortion elsewhere by suggesting that they would be abducting the foetal ‘citizens’ they were carrying to be ‘murdered’ in another state. And in a recent (and highly contested) decision by an Alabama court, fertilised embryos were defined as children, and the destruction of such embryos – in the ordinary course of in vitro fertilisation processes – was declared to be murder. Foetal life has taken precedence over women’s bodily sovereignty, obscuring entirely the role that women’s bodies play in the gestation process that turns an embryo into a foetus into a child.

There is of course enormous resistance to these right-wing efforts. The vast majority of Americans think that abortion should be legal, that it is a woman’s right to determine whether or not she can bear, support and take care of the child she carries. The reaction to Dobbs and to these red-state laws may well determine the outcome of the presidential election in November and many state elections, too. In our efforts to combat the tide of anti-abortion legislation, many of us will point to France as a counter-example to the US and a beacon of hope for what can be accomplished.

But there is also a warning in the US experience. A reactionary court, the majority put in place by a corrupt and misogynist president, reversed what once seemed to be a permanent constitutional protection for abortion. Laws, even constitutions, can be undone. Especially, perhaps, those that continue to protect the controlling interests of the nation in its own reproduction by granting ‘rights of privacy’ or ‘freedom of access’ but not equality to women.

This is a version of a piece that first appeared in French in L’Obs.