Bex Heimbrock
The US Supreme Court did not simply do away with abortion rights, they exposed the legal fiction of personhood for a majority of this country.
Justice Clarence Thomas’ concurring opinion on the reversal of Roe explicitly invites the court to reconsider all prior substantive due process precedents, including Griswold, Lawrence, and Obergefell. ‘Obergefell’ refers to the 2015 Supreme Court ruling in Obergefell v. Hodges; the ruling that legalized gay marriage across the country. It must be asked why something as seemingly unrelated to abortion as gay marriage was implicated in Thomas’ ruling. Both cases, as it turns out, fundamentally concern the legal fiction – and validation – of personhood. While the christo-fascist playbook has already figured out that repealing rights for one marginalized group implicates all other marginalized groups, liberals seem to be playing catch-up; still clinging desperately to an idealized version of democracy that has not existed since the birth of Reaganism (if, indeed, it ever existed at all).
This ‘legal fiction’ recently exposed by the court is a site of harmful identity naturalization. While it is true that identity contains radical potential, as it can be the basis upon which one resists oppression (intersectional feminism is one example of an identity-based resistance), when one accepts identity as a Fact-with-a-capital-F, a matter of ‘nature’ upon which a person’s rights are decided, then the idea of personhood becomes immovable and naturalized within the oppressive construct of normalcy. Thus, the US Supreme Court’s rulings – whether they be progressive or conservative – decide who are or aren’t ‘people’ protected by the force of the law based on these naturalized, or otherwise immovable, identities. In a sense, the law never truly ‘protects’, as the rights granted to marginalized identities always come with a caveat – a sword of damocles dressed in black robes; a promise that what is given can also be stripped away.
In order to understand the threat posed by Thomas’ ruling, and liberals’ response to it, we must step back in time to the 2010s; the era of duct tape, mustacheos, and gay ‘rights’. When, in 2015, gay marriage was legalized, not every queer activist was thrilled. For people who existed outside of the norm in numerous ways, acceptance (realized via the legalization of marriage) meant a naturalization of identity that merely shifted – never dismantling – societal hierarchy. The fight inherent to gay marriage, some argued, is for membership into hegemony; instead of espousing total liberation for all peoples, gay marriage advocates merely want to be included in privilege. It was very clear for the queer activist that an agenda which prioritizes inclusion, acceptance, and the legal fiction of personhood will privilege those whose abnormalcy is as close to normal as possible. The next logical progression of this precarious personhood? He who giveth, taketh away.
In order to combat the violence of patriarchal legislation we must think of bodily autonomy not as a right, but as an existential fact.
Theorist Judith Butler strikes at the core of the issue; “the arguments against abortion can be used against any number of decisions that assume that new rights emerge from new social conditions pertaining to sexuality, gender, intimate association, and reproductive freedom.” All of these “new rights” are fundamentally related to bodily autonomy, and when activists within such coalitions set their sights on solely legal victories, they are immediately forced into an extremely fragile position where courts have the complete freedom to ‘giveth and taketh away’ in favor of a patriarchal order backed – as Butler points out – by “the force of federal law.” Still, Butler’s analysis threatens to fall short by invoking the legitimacy of “indispensable rights” without acknowledging a critical point; rights that can be taken away are not rights, they are threats – promises of judicial and legislative violence yet to come.
Protest signs at abortion rights rallies that declare ‘Vote!’ and ‘RBG Sent Us’ fall prey to this exact issue. When will we realize that autonomy which relies on the presence of a politician with a ‘D’ next to their name is nothing more than leverage for the next election? Are we so used to having our rights decided for us that the only way of resisting imaginable is at the ballot box?
When high-ranking Democrat leaders like Nancy Pelosi’s response to the court’s decision constitutes sending fundraising emails, vote-begging, and asking for protests to remain peaceful, it’s abundantly clear that, by accepting the legal fiction of personhood that is decided for us, liberals have failed. By shifting the conversation away from reinstating precarious acknowledgements of personhood, and towards a radical refusal of state-sanctioned oppression, liberals have the unique opportunity to create a strong movement that can truly change lives. Whether they seize the moment now, is up to them.
Those who disagree with, and are harmed by, the ruling should invest in what Butler refers to as “the powers of coalition.” Instead of burying one’s head in the sand and reaffirming the (frankly idiotic) belief that voting will save us all, we must organize with purpose and become a movement to be reckoned with. With this solidarity, queer approaches that work to subvert the power of these institutions will be instrumental. For example, while marching in the street is a great tactic to create pressure, creating community support systems can challenge the court’s christo-fascist power while also actually supporting the people that marchers are supposedly fighting for.
Practical Support Organizations provide this exact solidarity for people in need of abortions; ineedana.com is one fantastic example of this – toggling through the tabs on their website yields resources for funding, transportation, wage replacement, lodging and more. Even better, all of the available resources are made possible through the time and energy of volunteers
in various localities across the country. People are responding to the needs of those seeking abortions by opening their homes, giving money, and providing transportation – this form of resistance-based support is deeply necessary, and subverts the supposed power of legal ‘rights’.
But even beyond abortion, it’s time to fully recognize and engage in the need for an intersectional movement. Just like the queer movement didn’t stop after 2015, so too must the abortion rights movement work to push past the allure of hegemony.
In short – it’s time to get busy.
Feminist Theory 