When does a woman stop being a person?

Eleanor Penny writes that Ireland's 8th Amendment is a masterclass in how to strip pregnant people of rights over their own bodies.

May 21, 2018 · 12 min read

Ireland is gearing up to vote on whether to repeal the country’s notorious 8th amendment, a constitutional clause outlawing abortion. It makes Ireland among one of a mere smattering of other nations globally whose constitutions enshrine a foetus’ right to life, putting it – in the coarse rubric of the law – on equal footing with the life of the person inside of which it’s growing. As it stands, procuring an abortion can land a you in jail for fourteen years – a fate also reserved for any doctors who oblige women with this basic medical procedure. The 8th amendment was no overnight revolution – abortion has never been legal in Ireland. But in 1983, whilst other countries were slowly staggering towards legalisation, an alliance of church leaders and conservatives took a radical path to stave off any similar attempts in Ireland. Laws around abortion were put beyond the machinations of ordinary legislators, all under the auspices of defending ‘the life of the child’ in what some see as a global war against the unborn, waged largely by the women who dare to claim some say over what happens to their internal organs.

The opponents of abortion have chosen the bodies of foetuses as their symbolic battleground – or to borrow from their lexicon, the bodies ’babies’ or ‘unborn children’. The UK’s oldest largest and pro-life organisation calls itself the Society for the Protection of Unborn Children. Posters outside clinics, hospitals and protests show empty cribs and high definition scans of plump third-trimesters, detailing how they have fingernails and heartbeats, that they can kick and yawn. Sometimes they splash pictures of bloody medical utensils and dismembered foetuses – a shock tactic borrowed from powerful US anti-choice caucuses (some of whom have been linked to the ‘No’ campaign, despite strict regulations governing election funding). One poster depicts a firefighter saving a child from a burning building, in a direct appeal to men to stand up and take their rightful place as the heroic defenders of children against a potential repeal act.

It is the subject of much hushed disbelief that the amendment bans aboriton ‘even in cases of rape’. And true, this does seem like the limit-case for clerical cruelty, testing how readily they will ignore the trauma of women forced to carry the results of their abuse to full term. But then again, it would be strange to abandon a commitment to the ‘life of the child’ because of the circumstances of its conception – if it’s a person, it’s a person irrespective of how it came to be. If anything, I have a slim shadow more sympathy for those absolutists determined to re-traumatise rape victims women than their comrades who are determined to victimise all other women. Their burning zealotry throws light on the sham loyalties of those who claim to be ‘pro-life’: showing that their commitment is less about protecting the inviolable rights of a collection of cells, and more about controlling women’s behaviour by punishing women them for having sex on their own terms. If she didn’t choose to have sex, then maybe she doesn’t deserve to be punished so harshly.

Nonetheless, the lofty egalitarianism of pro-life zealots might ring hollow to the families of those who have lost their lives as a result of this legislation – to backstreet abortions, to suicide, to pregnancies gone awry. The law does provide a get-out clause: a doctor can terminate a pregnancy if it proposes substantial risk to the ‘life of the mother’. But this is rather a moveable feast. Debate still rages as to whether suicide presents a significant enough risk. It’s not standard practise to grant abortions to women contemplating suicide as a preferable alternative to enforced pregnancy. In order to justify termination, doctors must be convinced that the mother will die – meaning that airing on the side of caution is off-limits. Notoriously, this provision spelled the death of 31-year-old Savita Halappanavar, who died after a 17-week pregnancy turned septic, and the doctor refused to provide a termination when the feotus still had a heartbeat. By the time medics were persuaded to intervene, ti was too late. Though the law claims euqality, the reality of medical practice puts the wouldn’t-be-mother’s life way down the list of priorities – their deaths an occupational risk in the task of converting all women into breeders, whether they like it or not.

Much of the debate rages these high-profile cases – a ghoulish parade of pointless deaths. But all pregnancies, including the ones which don’t grab headlines, put an extreme strain on the human body; carrying a pregnancy to term is much more risky than are run in a standard termination. And that risk falls most heavily on those women who cannot afford to slip off to England for the basic medical care they need. According to some research, a whopping 40% of birth mortalities are migrant women who can’t leave the country – to say nothing of the working class women who simply can’t afford the airfare or the time off work. Then there are the collateral risks – including but not limited to job insecurity, domestic abuse, poverty, estrangement from family, of lower educational – and of course, the everyday tragedy of having to re-draw the contours of your life and hopes around an unplanned, unwanted pregnancy.

In an attempt to protect women – indeed, anyone with a uterus – against this fate, many campaigners have retorted that foetuses simply aren’t people, and shouldn’t be protected as such under law. And they have good reason. It does seems strange to grant the full package of personhood and all its legal protections to a patch of cells about as complex and self-conscious as a fungus or a box jellyfish. So, many ask why we should protect their status as people when they meet none of the criteria we ordinarily use to pick out people from a crowd of other life forms; sentience, viability, being vaguely person-shaped. Why should some obscure ecumenical norm apply here?

It’s murky territory to say the least – and wading into this debate means wading into a complex medical and philosophical mud wrestling match over who and what counts as a person like me. Not even the staunchest of catholics have always been settled on the idea that life begins at conception. Earlier church doctrines claimed the soul entered the body when the foetus ‘quickened’ – that is, when it started to move.

So let’s momentarily leave off wrestling with a slippery vision of when and how a foetus becomes a person. Let’s grant for a while the idea that all foetuses, no matter how microscopic or inviable, are real people in the way that you are, or your brother is, your neighbour you’ve nodded to for fifteen years is. Outlawing abortions is still an outrageous affront to basic human rights. Judith Jarvis Thomson wrote a famous thought experiment where she invited readers to imagine that, on a routine hospital visit, they are suddenly sedated. They awake to find their vital organs hooked up to those of another person (a famous violinist no less) so that their body can function as life support. This is the deal: that they have to stay there, playing blood-filterer and food-digester, otherwise the violinist will die. So, should it be illegal for them to leave the hospital, to be outraged that the doctor conscripted them into the high-risk role of pumping blood and breathing oxygen for two people? Thomson argues no. Their body is still their body; the fact that some doctorly caprice repurposed their lungs and liver as life support machine does not – or should not – take away their fundamental rights over their own body. At an absolute limit, we might admire those who stay, who undertake such a medical risk for the benefit of a stranger – in the same way we praise people who run into burning buildings to snatch people from the flames. But could we tolerate a system which would punish those who don’t with years in prison for trying to claim basic control over their body and their life?

If we as a society answer ‘yes’, we we need to accept the uncomfortable truth that we’re prepared to turn people into walking, talking organ banks against their will. That we’ve deemed it acceptable to non-consensually conscript the bodies of living people, and put them to work for some goal over which they have no say.

When we argue for full access to free, safe legal abortion simply on the grounds that foetuses aren’t people, we might be conceding defeat before we’ve even started fighting. At some point between zygote and screaming newborn, that foetus becomes a person. And that horizon matters in all sorts of ways – in the delicate decisions of prospective parents, of doctors, of public health workers, and in many other sectors besides. But when we use it as the yardstick for when abortion should be legal, that means at some point it becomes acceptable to deprive a person of dominion over her own body. The question is not whether it is acceptable to deprive a woman of her basic rights, but when. We’re not just asking when a foetus starts being a person – we’re asking when a woman stops being a person. The symbolic battleground is not so much the bodies of children, but the bodies of women.

I mean this in a real way. Formal personhood isn’t just a lofty, category of concern to sophists, but a legal category, made concrete by the laws and protections which come along with it. (A fact with which ‘No’ campaigners are more than familiar). In the unsteady settlement of liberal legal codes, persons are ends in themselves – people with liberties, with rights. The bounds of their bodies mark a territory of self-dominion, into which other people and institutions should not intervene. When we ban abortions, we declare those borders null and void. The bodies of pregnant (or even potentially-pregnant) people become de-facto public property – things which can be deployed as a steady supply of muscle and blood when needed. It’s a cruel trick played countless times throughout history, with varying tolls in human suffering. When you want free use of people’s bodies, you need first to dismiss the inherent value of their lives – to strip them of their rights and dignities packaged along with full personhood.

It’s a switch-out con, a vanishing act – where conservatives fixate on the personhood of children, they build a legal architecture to steadily erase make the personhood of women. No wonder a certain level of maternal death is tolerable to those who have called themselves pro-life. Sometimes machines wear out or break down. Sometimes software gets glitchy, sometimes mines are exhausted and water supplies run dry. It’s all part of the programme. Inflated claims to value the lives of ‘both mother and baby’ equally can be quickly punctured by a moment’s reflection on the realities of living with an unwanted pregnancy. Little value is really given to the lives of pregnant people – who also have fingernails and heartbeats, who can kick and yawn.

Perhaps in this, in some withered sense, pro-life: a brutal legal calculation about how to maximise the overall seconds of vitality, no matter the cost to humans who are already alive. But it is far more effective at stripping women of basic legal entitlements, limiting their agency over their own body, punishing them where they claim independence, and re-articulating patterns of economic dependency on male partners or family members.

We have our nightmarish cultural avatars for this attitude. Think Mad Max chained onto the front of a war boy’s monster truck, his blood drained from him. Think Te Handmaid’s Tale, where women with working wombs are reduced ‘wombs on stools’, and their trans sisters are banished to the nuclear wastes as gender traitors. But really, we don’t need to resort to speculation – this attitude is horrifyingly banal. When people talk about the ‘redistribution of sex’ – this is what they mean; that women’s bodies are a public resource unfairly parcelled out among the needy. Likewise, when people fixate on the fertility of migrant women as a panacea to the economic woes of ageing western countries. When the far-right encourages white women to breed to stave off their paranoid delusions of ‘great replacement’. When the conservatives talk of the inalienable feminine duty towards motherhood – this is what they mean. We are not talking here about whether or not to grant personhood to foetuses. We are talking about whether to strip it from women.

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