One of the biggest contributors to the hoopla over abortion, and one that is seldom discussed, is men; specifically, patriarchy. That is the elephant in the room, or in this case, the abortion clinic waiting room. These men are typically right wing, religious fundamentalists and evangelicals. More specifically, they are men of the today’s Republican party, the GOP, whose logo, appropriately, is an elephant.
Men’s dominance of women over several millennia has been baked into the psyche of both. After WWII, women have made substantial progress in achieving parity with men, but, as the ladies will tell you, they still have a way to go.
A common definition of patriarchy is a social system in which men hold primary power and predominate in roles of political leadership, moral authority, social privilege, and control of property. In the Judo-Christian world, patriarchy with respect to women can be found in the Old Testament. The Tenth Commandment in Exodus 20:7-21 (NIV), reads:
“Thou shalt not covet thy neighbor’s house. Thou shalt not covet thy neighbor’s wife, or his male or female slave, or his ox or his donkey, or anything that is thy neighbor’s [property].”
Regarding the wife as property, consider the marriage ceremony. The officiant would ask, “Who gives this woman (the bride) to this man (the groom)? ” And the bride’s father would answer, “I do,” or “her mother and I do.” That short exchange just confirms that the “bride” is property and that this is a transaction whereby ownership is assumed by her husband. She then takes on his surname so everyone will know that she “belongs” to the groom and no longer to her father.
For too many reasons to discuss here, females became property early on in the evolution of civilization and, thereby, subordinate to men. And, paternity became a big deal. Bastards were verboten. In an effort to assure the father is really the father, his wife’s virginity was to be protected as much as possible. That protection included chastity belts in midlevel times and the prohibition of contraception and the morning-after pill in modern times.
In terms of American history, women were not recognized in its founding. Their names don’t appear anywhere on the founding documents. Jefferson certainly wasn’t thinking of women when he famously wrote in the Declaration of Independence, “all men are created equal.”
Of course, Jefferson and the other architects of our nascent government were heavily influenced by the Enlightenment philosophers of Europe. They were all about natural law and personal liberty. But a search through 377 pages of the Federalist Papers, which set out the reasoning behind the Constitution, failed to find the words “Woman” or “Women” or even “female.” The feminine pronouns “she” and “her” were only used to refer to countries and states, not living beings. The United States of America was thus born with its new government effectively omitting half of its population of settlers.
When Abigail Adams read the Declaration, she wrote to her husband John:
“I cannot say that I think you very generous to the Ladies for whilst you are proclaiming peace and goodwill to Men, Emancipating all Nations, you insist upon retaining absolute power over Wives.”
Nonetheless, women’s rights have been recognized and accepted gradually over time. Before 1839 unmarried women could enjoy the profits of their labor, own real and personal property, to be parties to lawsuits and contracts, and execute wills on their own behalf. But when women married they lost those rights under the principle of “coverture” — a legal doctrine in common law whereby, upon marriage, a woman’s legal rights and obligations were subsumed by those of her husband — and were considered to be under their husbands’ protection and authority.
Beginning in 1839 in Mississippi, states began the process of enacting legislation to override coverture and establish the rights of married women to be the same as their unmarried sisters. But such legislation was slow. It took until 1996 for marital rape to be a crime in all 50 states!
All of that is ironic because Native American women, who we called heathens and squaws, had virtual equality with men ever since they showed up here 15 or so thousand years ago. In fact, suffragettes like Lucina Mott, Susan B. Anthony and Elizabeth Cady Stanton met with Iroquois women and women in other tribes in the late 1800’s and early 1900’s for ideas that would help them get parity with men.
But even with the progress women have made in securing equality with men, the religious and political right have become more and more authoritarian over the last few years and more and more driven by male supremacy. That trend merely exacerbates the dilemma women face when it comes to their reproductive choices. Their challenge is to maintain those rights within what Justice William O. Douglas called “the penumbra of the constitution.” Unfortunately, that requires action by the Supreme Court.
Indeed, there are many Constitutional issues surrounding abortion that will no doubt be litigated. Article 4, Section 2, Clause 3 of the Constitution says, “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another . . . shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” This provision was memorialized in the Fugitive Slave Act of 1793. The Act was to appease the slaveholders of the South. It provides that anyone who captured and runaway slave must render him to court, which would then return him to his owner. The law also imposed a $500 penalty on any person who helped harbor or conceal escapees or interfered with their capture.
Fifty-seven years later, the original act was replaced by The Fugitive Slave Act of 1850. It compelled citizens to assist in the capture of runaways. It also denied enslaved people the right to a jury trial and increased the penalty for interfering with the rendition process to $1,000 and six months in jail.
Fifteen years after that, the 13th Amendment was ratified. It ended slavery – except for convicts.
In his 2005 book, “Hitler’s Bounty Hunters,” Investigative journalist Ad van Liempt reveals the practice of Dutch bounty hunters finding and turning in Jews to the Nazis in WWII. It explains how ordinary citizens would turn over their Jewish countrymen in exchange for cash. They reportedly got 7.50 guilders or $37.50 per captured Jew. (These were the same Dutch citizens who betrayed Anne Frank and her family and turned them over to the police where they could be sent to Hitler’s death camps.)
Last year Texas passed “The Texas Heartbeat Act.” It is a law that bans abortion after the detection of embryonic or fetal cardiac activity, about six weeks of pregnancy. That law contains a provision that effectively creates bounty hunters, ordinary citizens, to enforce it. The abortion ban offers a cash incentive to people who file lawsuits against someone they think is breaking the law. And the law incentivizes the hunters with awards of at least $10,000, plus court costs and attorneys’ fees for every lawsuit that successfully blocks a pregnant person from getting an abortion in Texas or any other state if the woman is a Texas resident.
The lawsuits could target a doctor, friend of a person seeking abortion, taxi driver, health center, nonprofit group (such as a church or abortion fund), or anyone else who helps or assists a patient get a safe abortion after six weeks of pregnancy. And the plaintive could be anyone from any state!
Some other specific rights granted by the Constitution that might impact abortion include the following:
■ Fourth Amendment – “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” If abortion is considered an unreasonable intrusion constituting a Fourth Amendment search or seizure upon a person, it is unconstitutional.
■ Fifth Amendment – “. . . This requires that “due process of law” be part of any proceeding that denies a citizen “life, liberty or property.” The court in Roe ruled that this amendment included the right of privacy and therefore women have the right to choose to have an abortion.
■ Ninth Amendment – “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Supreme Court, deciding specifically on abortion and birth control cases, stated that there was an expected “recognition of the right of liberty or privacy in matters related to family, marriage, and sex.” Other rights in the Ninth Amendment include, among others,
- The right to vote,
- The right to travel,
- The right to associate with others,
- The right to marry,
- The right to be free from compulsory sterilization,
- The right to educate one’s children consistent with minimum state standards,
- The right to use The courts and other governmental institutions.
- The right to retain American citizenship, despite criminal activities, until explicitly renouncing it
■ Thirteenth Amendment – “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Some have argued that when women are compelled to carry and bear children, they are subjected to ‘involuntary servitude’ in violation of the Thirteenth Amendment.
■ Fourteenth Amendment – This Amendment reads in part, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws nor shall any State deprive any person of life, liberty, or property, without due process of law.” The Supreme Court ultimately used that to endorse other rights and prevent states from implementing laws that restrict those not directly stated in the Constitution, including the right to privacy.
The right to privacy as it pertains to abortion is thereby protected by the Fourth, Fifth, Nineth, and Fourteenth Amendments. If abortion is outlawed, the courts will likely be inundated with challenges to the violation of these rights.
The proposed remedy for women who are unable to get an abortion is adoption. Of the 92% of the more than 1.5 million abortions that are performed in the United States each year are the result of unwanted pregnancy. And less than 4% result in adoption. It can take years to go through the adoption process. Meanwhile, the burden of care then falls to the state. And that means we taxpayers.
Oklahoma just passed one of the most draconian abortion laws in the country. It makes abortion illegal from conception to birth with exceptions being rape, incest or a threat to the mother’s life. But, if she is a minor, or if she cannot provide medical or financial care for the baby, or if she is in an abusive household, then she will just have to deal with it. And the way the law is written, it is illegal for her to go to another state for an abortion.
States that have both Republican governors and legislatures will likely follow the lead of Oklahoma with laws that will effectively make abortion impossible. In the doing, they will thereby erase the progress made by women to claim their independence from men. And it is also testament to the authoritarianism that has taken over the Republican party.
In 2006, John (“there’s a cancer on the presidency”) Dean published his “Conservatives Without Conscience.” He writes in the preface:
“Authoritarianism is not well understood and seldom discussed in the context of government and politics, yet it now constitutes the prevailing thinking and behavior among conservatives. Regrettably, empirical studies reveal that authoritarians are frequently enemies of freedom, anti-democratic, anti-equality, highly prejudiced, mean-spirited, power hungry, Machiavellian and amoral. They are also often conservatives without conscience who are capable of plunging this nation into disasters the like of which we have never known.”
And they are also the elephants in the abortion clinic waiting room.
NOTE: This essay is a supplement to the author’s post on the Humanist Challenge Blog at https://thehumanistchallenge.com/2020/05/09/pro-life-pro-birth-pro-choice-2/