Abortion, rights and the meaning of personhood

Yet again a US media furor brings together three elements: abortion, rape and Republican politicians. Hard on the heels of former presidential candidate Rick Santorum's assertion that women pregnant in consequence of rape should 'grin and bear it' – 'it' being the key word, referencing the putative child, Senate candidate Todd Akin asserts, in contrary fashion, that no 'legitimate' rape results in pregnancy. Although these fellow politicians may at first glance appear to stand at different parts of the spectrum, Santorum in no doubt that pregnancy can be an outcome of rape, Akin asserting it cannot, they – like an apparent majority of Republicans in office, seeking office or in the GOP – agree on one essential: unlimited protection must be extended to a human ovum fertilised by human sperm.

This contention is phrased in the language of personhood, the subject of a 2011 Bill before the US Congress. On 7 January that year, in the 1^st Session, Rep. Broun of Georgia introduced HR 212, 'to provide that human life shall be deemed to begin with fertilization'. Co-sponsored by Akin and (now) GOP vice-presidential nominee Paul Ryan, the Bill had fifty-three additional sponsors. Of the entire fifty-five, three – Ms Foxx of Arizona, Mrs Myrick of Tennessee and Mrs Black of Georgia are women.

The 'Sanctity of Human Life Act' seeks a constitutional change based in the 14^th Amendment, the 'equal rights' amendment of the US Bill of Rights, to assert:

'(A) the right to life guaranteed by the Constitution is vested in each human being, and is the paramount and most fundamental right of a person; and

'(B) the life of each human being begins with fertilization, cloning, or its functional equivalent, irrespective of sex, health, function or disability, defect, stage of biological development, or condition of dependency, at which time every human being shall have all the legal and constitutional attributes and privileges of personhood …'

Accordingly, the Bill continues, Congress, together with Washington, DC, every state and all US territories shall 'have the authority to protect the lives of all human beings residing in [their] jurisdiction'.

Under the Bill, a one-celled human embryo, whether created by fertilisation or cloning, is 'a new unique human being', whilst 'human' and 'human being' denote 'each and very member of the species homo sapiens at all stages of life, beginning with the earliest stage of development, created by the process of fertilization, cloning, or its functional equivalent'.

Perhaps tellingly, the Bill does not define personhood. This may well be intentional, for once questions are raised as to the 'legal and constitutional attributes and privileges' of 'personhood', the issue of sex/gender differentiation and discrimination in law, society, culture, the economy and the polity comes into sharp relief.

That women's lives, wellbeing and claims for personhood are central to the entire argument about the 'status' and 'protection' of embryos is the unacknowledged presence in the room. That women's rights are at stake is confirmed in the response to politicians such as Santorum and Akin. That these men have no or little regard for women's rights is evident. It takes the media to remind Santorum, Akin and their ilk that women not only exist as human beings but, as human beings, have a voice and a place in the debate.

On 19 August, in an interview with Missouri television, Akin averred there was no need for a rape exception to a ban on abortion: 'If it's a legitimate rape, the female body has ways to try to shut that whole thing down.' In his February Piers Morgan interview, Santorum said where pregnancy results from rape, women should not be entitled to abortion but, rather, 'ought, in such a circumstance, welcome this horrible gift from God'. The 'horrible gift' – odd language for someone who purports to care for embryos so much that their existence is sacrosanct – is the child born of rape. Yet perhaps the language of 'horrible gift' is not so odd, when analysis indicates that in the end it is not the putative child in issue, but the embryo itself. This is where attention is paid and this is where attention is all, as in the proposed 'Sanctity of Life Act'. Of which, more later.

As for Akin, he was obliged to temper his remarks, the excuse being along the usual lines – 'taken out of context', 'misspoken' or 'misunderstood'. Under the threat of being required to resign from the Senate race, Akin quickly asserted that no rape is 'legitimate':

'Rape is never legitimate. It's an evil act that's committed by violent predators. I used the wrong words in the wrong way.'

Albeit he said he knows 'people [sic] do become pregnant from rape [and] didn't mean to imply that that wasn't the case', Akin had no difficulty in incorporating the word 'illegitimate' into the explanation of what he had truly intended. There is a context in which rape is illegitimate, he said: that of the false complaint – and false complainant. 'Illegitimacy' applies to claims by women of having been raped, who do so in order to avail themselves, by this subterfuge, of pregnancy termination. In other words, pregnant women who say the pregnancy is a consequence of rape are liars – because no rape – or at least very few - can result in pregnancy. Thus, in his own words it seems that where Senate candidate Akin is concerned, women – not rapists – are the problem.

The idea that women make false claims of rape fits well with the position evident in Akin's stand on abortion: that women are not to be trusted, even (or inevitably) when women's bodies and psyche are directly in issue. This lack of trustworthiness is particularly so with sexual intercourse and its consequences:

• First, for Akin, a man's assessment of whether a woman has consented to sexual intercourse or not is pre-eminent – effectively, '"no means yes" so long as I, being male, say so' - lies at the heart of the notion that there is 'no such thing as rape' ('legitimate' rape – whether on Akin's initial assertion, or upon his second attempt).
• Secondly, and similarly, at the heart of the denial of abortion rights to women lie the rights of man. Here, it is the product of male engagement in sexual intercourse that is in issue: the sacredness of sperm is to be maintained, with no woman entitled to discard the essence of manhood; no fertilised ovum can be denied nor have its existence (prematurely) ended.

This takes us back, then, to the Bill for the 'Sanctity of Human Life Act' and its deeming provision: namely, that 'human life' begins at fertilisation, cloning 'or its functional equivalent' 'at which time every human being shall have all the legal and constitutional attributes and privileges of personhood'.

Ironically, a woman-in-the-womb – or female-before-birth – is, it seems (at least at first glance), to have more rights than she does after birth. After all, women are denied the same rights as men 'in the world' and, in particular, under the US Constitution.

After the US Civil War, the 13^{th (1865/1865)}, 14^{th (1866/1868)} and 15^{th (1869/1870)} Amendments were passed. The first relates to the abolition of slavery and involuntary servitude, the second to citizenship and equal protection of law, the third to the right to vote. Despite women's efforts (with male supporters) to have these provisions apply equally to all US female citizens, this did not happen.

'Stand back, ladies, it's the Negroes hour', women were told in the languages of the time. 'Race, color and previous condition of servitude' are the basis upon which the 15^th Amendment outlaws denial or abridgement of the right of citizens to vote. Women were not, and are not, included. It took the 19^th Amendment, passed some sixty years later (1919), to grant female US citizens the right to vote.

Nor do women have 14^th Amendment protection. Under the 14^th Amendment, race is a 'suspect classification', laws referring to or based on race (directly or indirectly) being subject to strict scrutiny. To pass the 14^th Amendment equality test, any race law must be 'narrowly tailored' to achieve a 'compelling government interest' by the 'least restrictive means'. This is not the test for laws referring to or based in sex/gender. As far as women (African American or non-African American) are concerned, 'intermediate (not strict) scrutiny' only is required. The race and sex/gender standard is differential: women's rights are not equal to men's rights, the abridgement of women's rights not required to be 'narrowly tailored' to achieve a 'compelling government interest' by the 'least restrictive means' possible.

This underpins the Equal Rights Amendment (ERA) battle of the 1970s and 1980s. Drafted by Lucretia Mott in 1923, modified in the 1940s, it says:

'Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

'Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article …'

Every year the ERA was introduced. Finally, in 1972, it passed both houses, then began its 'tour' to garner the 50 states needed for ratification. Because, by 1979, too few had ratified, the ERA lapsed. Hence, US women remain without constitutional protection for full equality.

Yet Akin, Ryan and their colleagues say the embryo-in-uterus – any human embryo – must have constitutional protection for full equality. At least, that is how the amendment projected by the 'Sanctity of Life Act' is worded. Thus female human life may be protected equally to male human life until the embryo, now developed into a fully formed fetus, is expelled from the womb. Immediately upon birth, the boy baby has full 14^th Amendment protection. The girl baby does not, and without the ERA, lacks full equality.

That Akin and Ryan do not, in their compulsion to 'make' embryos 'persons' with the rights and entitlements of personhood, simultaneously propose reintroduction of the ERA so that grown women, girl babies and girl children will have equal rights with men, boy babies and boy children, is indicative of their stand against female personhood. If they truly cared about the personhood of all US citizens – whether alive in the world, or (on their terms) alive in the womb, they would be ERA advocates. Yet most assuredly, they are not.

This failure is evident, too, in the placement of the proposed 'Sanctity of Life' amendment. The 'Sanctity of Life Act' explicitly connects 'personhood-of-embryos' with the 14^th Amendment. Hence, the embryo to be truly protected is the male embryo.

Perhaps unwittingly, in formulating the Bill for the 'Sanctity of Life Act', its proponents confirm sex/gender selection, practiced so assiduously in countries where boy babies are valued over girls and in the US by parents who favour boy children.

Although they profess to desire the bringing to term of every embryo-in-human-utero, the birth of every baby conceived by whatever method, consensual or not, and against a prospective mother's determination that she is not ready for motherhood, the framing and placement within the US Bill of Rights makes clear these GOP lawmakers' intention. It reveals their overriding concern is not for 'all' babies or putative children, not really for 'all' human embryos – but for male embryos and the boys and men these lawmakers wish to see them become.

In the end, their words are not taken out of context. They are not misspoken. They are not misunderstood. These anti-abortion lawmakers and would-be lawmakers are indeed anti-woman. They are not concerned to extend legal personhood or acknowledge women as entitled to equal rights under the law. Their concern is to ensure that women are not entitled to act autonomously in seeking healthcare untrammeled by rules generated not on the basis of medical and health knowledge, medical and health practice or medical and health rights, but by reference to fundamentalist notions of 'religion' or imposed 'morals'.

Women and others in the media who denounce these men and their supporters as misogynist make no false claim. The false claims and illegitimate conduct is in those speaking the language of 'personhood', ignoring the legal, social, economic and cultural realities of that status. So long as female US citizens are denied equal protection under the law, every word spoken by politicians denouncing abortion and claiming the (purportedly) high moral ground over embryo and foetus protection, is false. Illegitimacy lies with those refusing to acknowledge the right to life to which women are entitled, and who do nothing to advance women's right to personhood and equal protection under the law.