The Right’s Bad-Faith Argument About Bodily Autonomy

The Right’s Bad-Faith Argument About Bodily Autonomy

The Right’s Bad-Faith Argument About Bodily Autonomy

Justice Amy Coney Barrett wants to catch us in a trap where either we concede the state’s right to coerce reproduction or we abandon the state’s right to mandate vaccines.


About halfway through the oral arguments before the Supreme Court in Dobbs v. Jackson Women’s Health, the case from Mississippi that threatens to overturn Roe v. Wade and end the right to legalized abortion in the United States, Justice Amy Coney Barrett mentioned bodily autonomy. She acknowledged that criminalizing abortion is “without question, an infringement on bodily autonomy,” but then noted, “which you know, which we have in other contexts, like vaccines.” In other words, she claimed that if you accept that the state has the power to mandate vaccines, then you can’t fight the criminalization of abortion by invoking bodily autonomy.

Throughout the pandemic, American conservatives have appropriated the language of the reproductive rights movement as a way to protest disease mitigation measures like masks and vaccines. As early as April 2020, people protesting mask mandates appeared around the country holding posters with the slogan “My body, my choice.” The conservative argument attempts to place the left in a bind: If you concede that the government can mandate vaccines, you must concede that the government can criminalize abortions, because bodily autonomy isn’t a core right. On the other hand, that means if you demand bodily autonomy for reproduction, you must also grant it to anti-vaxxers.

But these claims willfully ignore crucial differences. A pregnant person, of course, has the right to the autonomy of their own body, which includes the choice of whether to carry a pregnancy to term. And while the government should not send shock troops into homes to force needles into people’s arms, no one has the right to carry a deadly disease into public space and possibly infect the bodies of others, at least not when easy and affordable mitigation tools are at hand.

The right of each individual to bodily autonomy, as I wrote for The Nation during the first year of the Trump administration, is one of my guiding principles. It links so many different kinds of issues, from decriminalizing drug use and sex work to disability rights to trans rights to the right to health care and housing to decarceration and of course most centrally to reproductive rights. Like all abstract principles, it has its limitations, but it’s a concept that can articulate the rights of the individual in an increasingly authoritarian society.

Imani Gandy, the senior editor of law and policy for Rewire News Group, is a lawyer and has been a leading journalist covering reproductive rights and attempts to curtail them for well over a decade. In the aftermath of the Dobbs hearing, she’s been writing about what the right will do after Roe is overturned. She predicts that the GOP will focus on granting a fetus, from conception, the legal rights of a person. This, she argues, will criminalize women, especially Black women, for taking any kind of action—usually taking drugs or medication—that endangers a fetus. In this context, she told me, the principle of bodily autonomy remains critical.

In her recent work, Gandy cites five women whose decisions to take a variety of substances into their own bodies (meth, rat poison, abortion pills, cocaine) were treated by the state as crimes against their fetus, including Regina McNight, who “was sentenced to 20 years in prison after using cocaine while pregnant. After being incarcerated for eight years, she was released when the South Carolina Supreme Court overturned her conviction in 2008. The court said her attorney had ignored evidence that her pregnancy loss may not have been linked to cocaine.” During the Dobbs hearing last week, then, Justice Clarence Thomas invoked a similar case, Whitner vs State, while questioning to what extent courts were allowed to criminalize women for endangering fetuses. So the question is clearly on the anti-abortion movement’s mind. Gandy told me, “Personhood and increased criminalization of behaviors while pregnant will mean the government is going to be way more involved in the lives of pregnant people from ‘Were you wearing a seat belt?’ to the doctor says, ‘You need to have a C section.’ So you don’t get to have the natural birth that you want. It’s going to start infecting all areas of life.”

So if we can’t surrender the principle of bodily autonomy in defending the right to abortion, how do we respond to anti-vaxxers chanting, “My body, my choice,” or Barrett trolling pro-choice America by using the example of vaccine mandates? I am actually very uncomfortable with the civil liberties implications of digital vaccine passports (especially managed by private corporations via an app that tracks you) or mandatory vaccination for all Americans. Instead, a vaccine mandate proposes that you have a choice. Taking the safe mitigation step (obviously virulent anti-vaxxers argue safety, but that’s a different conversation than the one Barrett is invoking) of wearing a mask or getting vaccinated means that your presence in society is not threatening the bodies of others. Choosing not to mitigate risk to others means you lose your right to participate in certain aspects of society. There are always trade-offs, but masks and vaccines don’t present a particularly complicated case.

In a famous passage in Jean-Paul Sartre’s Anti-Semite and the Jew, the writer notes that you can’t argue with anti-Semites by pointing out their absurdity: “They know that their remarks are frivolous. They are amusing themselves, for it is their adversary who is obliged to use words responsibly, since he believes in words.… They delight in acting in bad faith, since they seek not to persuade by sound argument but to intimidate and disconcert.” Similarly, we will never persuade a member of the forced birth movement to respect the bodily autonomy of a pregnant person through words, logic, or nuance. Pointing out the hypocrisy or logical flaws of a Barrett, or an anti-vaxxer with a sign on the street, will not convince them of their folly.

But my arguments about bodily autonomy have never been about persuading the other side but rather about mobilizing the left and helping us locate points of connection. One of my introductions to left-wing politics was doing clinic defense as a college freshman. Now, as a 48-year-old father of an autistic boy with Down syndrome, I’m very focused on disability rights. One point of connection between these two issues—issues that the American right wing wants to place into conflict—is preservation of bodily autonomy for everyone. We make nuanced arguments about the limits and effects of principles like autonomy to help others to see how their issues connect to our own, drawing the left into overlapping networks of alliance and mutual interest. Ideally, this advances our various causes. When we fail to draw those connections, we leave ourselves open to being set against each other.

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