On Tuesday, Senator Lindsey Graham introduced the GOP’s proposed national forced birth legislation, which would ban nearly all abortions after fifteen (15) weeks.¹ This is what Republicans intend to pass should they retake Congress. Please know, I will never call abortion bans, or the people who support them, anything but forced birth laws, and forced birthers, because that is what they are. Forced birthers have co-opted the term “pro-life” in a grotesque parody, a mockery, of actual life—reducing it merely to being born—while time and time and time again consistently supported legislation and politicians, that not only put lives at risk in terms of prenatal healthcare, but degrade and risk the lives of children and families on a daily basis, with no regard for basic necessities like housing, food, education, and healthcare—the things required to live—and with a distinctly patriarchal, misogynistic, and transphobic bent.

I’ll leave it to the medical professionals to debunk any false, misleading, or inaccurate information about pregnancy, fetal development, and abortion contained within the bill, as it is replete with the type of misinformation, disdain for truth, and staggering ignorance we’ve repeatedly seen from forced birthers over the last few decades. In any event, the proposed legislation will not preempt stricter forced birth laws already in effect in many states, nor prevent other states from enacting even stricter ones. It will simply strip rights and bodily autonomy away from those living in sane states that aren’t yearning for a return to the last century.

Don’t worry though, there’s still plenty of object fuckery in the rest of this proposed legislation. As a seemingly inconsequential, but important point, is Graham’s citation of Gonzales v. Carhart²—the Supreme Court decision which upheld the Partial Birth Abortion Ban of 2003—as support for the authority to enact this ban. Justice Kennedy’s majority opinion claimed it was doing so “under precedents we here assume to be controlling”, i.e., under the precedents established by Roe, Casey, and Stenberg.³ In hindsight this feels mocking, and in her dissent, Justice Ginsburg noted this, writing that the decision “refuses to take Casey and Stenberg seriously.”⁴ Among other things, the majority opinion dismissed a health exception, both by claiming it is allowed under precedent, and stating that Congress can regulate in an area where doctors may lack consensus.⁵ However, the majority opinion ignored the vast weight of medical evidence presented in the underlying courts, substituting instead Congress’s unsupported claims. Ginsburg’s dissent addressed this stating, “[d]uring the District Court trials, ‘numerous’ ‘extraordinarily accomplished’ and ‘very experienced’ medical experts explained that, in certain circumstances and for certain women, intact D&E is safer than alternative procedures and necessary to protect women’s health.”⁶ Ginsburg also noted, that in defiance of the evidence, the Court was effectively allowing legislative usurpation of medical reasoning, “[t]he Court acknowledges some of this evidence, ante, at 161, but insists that, because some witnesses disagreed with ACOG and other experts’ assessment of risk, the Act can stand.”⁷ Ginsburg also made a point of calling out the majority’s “hostility” to Roe and its later cases, stating,

“Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label “abortion doctor.” Ante, at 144, 154, 155, 161, 163. A fetus is described as an “unborn child,” and as a “baby,” ante, at 134, 138; second-trimester, previability abortions are referred to as “late-term,” ante, at 156; and the reasoned medical judgments of highly trained doctors are dismissed as “preferences” motivated by “mere convenience,” ante, at 134, 166.”⁸

Like in Ginsburg’s dissent, the New England Journal of Medicine wrote, “[u]ntil this opinion, the Court recognized the importance of not interfering with medical judgments made by physicians to protect a patient’s interest. For the first time, the Court permits congressional judgment to replace medical judgment.”⁹ Additionally, The American College of Obstetricians and Gynecologists, which had also submitted an amicus brief against the ban, called the decision shameful, that it was ignorant of medical consensus, and that it would have a chilling effect on medical providers.¹⁰

At a glance, it seems reasonable for a forced birther to use a forced birther case for such information. Given, however, how Gonzales has been vigorously criticized by the medical profession for substituting Congress’s lack of medical judgment in place of a that of the medical knowledge of actual doctors, the fact that Graham used it in support of the legislation’s claims on medicine and authority, makes it impossible to see this as anything but Graham’s intentionally outstretched middle finger toward the women of America, whom he clearly disdains. While I fully support and acknowledge that such legislation will affect transgender men and gender non-conforming persons as well, given that these same Republican forced birthers refuse to recognize them as anything but women, the rooting of this law in patriarchal misogyny cannot be ignored. After all, 100% of unwanted pregnancies are caused by a person who ejaculates, yet their bodies aren’t being controlled.

I’m sure Republican forced birthers think they’re being magnanimous by including a couple of exceptions to the fifteen week ban. You know, that little tiny carve out where they deign to acknowledge that pregnant people have a sliver more sentience, more value, and more purpose in life than an incubator does? The first exception listed is when abortion is necessary to save the pregnant person’s life. The subsection specifies that it only applies to “physical” illnesses, actively and specifically excluding any risks to a person’s mental health. As far as I can tell, it would also preclude aborting a fetus that will not survive outside the womb due to developmental abnormalities, thereby forcing someone to carry to term a fetus that will suffer and die within hours of birth. An absolutely ghoulish prospect.

But, you know, life.

Cue the choirs of heaven and all that shit.

Of course nothing in the bill will cover the medical costs of such an eventuality, or a person’s therapy bills because of it.

Not that Republicans care.

The first exception, defers to a doctor’s “reasonable medical judgment” to determine whether a person’s life is in enough jeopardy to qualify for an abortion. The doctor’s medical judgment—you know, the very thing forced birthers disregard altogether when it comes to abortion and reproductive healthcare on the whole.

Additionally, because such bans criminalize the act of terminating a pregnancy—meaning a doctor can go to jail—in states where such bans have already been implemented, we are seeing reports of doctors and hospitals being forced to back burner their medical judgment—leaving sick patients in limbo and getting sicker—while they’re forced to consult with lawyers. These lawyers are being called upon to determine if a doctor’s judgment is, I don’t know, reasonable enough(?) to warrant saving a patient’s life.

As a recovering lawyer, I know many of us are reasonably intelligent people—although I can’t vouch for those defending TFG—but there was only one guy in my law school graduating class who also had a medical degree. If these forced birth policies require lawyers to make the ultimate judgement as to saving a patient’s life, it’s clear that there is no real intention to defer to a doctor’s reasonable medical judgment. If Republicans actually listened to doctors, they’d know that the majority of doctors, in their reasonable medical judgment, see abortion as part and parcel of healthcare, and these bans wouldn’t exist in the first place. Instead, like the Court in Gonzales, they write off damage to, or death of, a pregnant person as a cost of doing business—the business of forced birth babies.

A second exception exists in cases of rape or incest, and is further broken down by age. In cases of rape against an adult, an abortion is permitted only if the victim obtained either counseling for the rape, or medical treatment for the rape and any related injuries, at least 48 hours before the abortion. In the case of a minor who is pregnant because of rape and incest, an exception to the ban will be allowed if the rape has been reported at any time prior to the abortion to a “government agency authorized to act upon reports of child abuse” or, a law enforcement agency.

The need to report—or obtain counseling for—rape or incest, in order to avail oneself of the second exception, is a knowingly limiting factor, that is intentionally included in order to force as many victims as possible to birth their rapist’s child. Let’s also make it clear that in the majority of cases involving minors, particularly involving incest, it is always rape, as children can never consent to sex.¹¹ The shame and stigma of rape and/or incest is a well known, well documented bar to either reporting the crime, or obtaining counseling for it.¹²

Furthermore, in order to comply with the legislation, a doctor performing an abortion under the rape/incest exception, must place a copy of the report or other documentation regarding compliance with the law in the patient’s file; yet another violation of a victim’s privacy. The purpose of this requirement to the exception can only, therefore, be rooted in the patriarchal idea that women lie about rape, and that only “officially” reported rapes can be “real” rapes. Additionally, since sex with a minor is definitionally rape (regardless of whether it is incest or not), and a strict liability crime, the reporting requirements for this exception could still result in children being forced to carry a child to term. Often young people, are unaware of how their cycles work, and thus often don’t even know they are pregnant until they are past the arbitrary lines drawn, at which point a forced birther parent, who may even be their rapist, will not help them obtain an abortion. Additionally, in many cases involving minors, there is a legitimate fear on the part of the victim that they will be blamed and further abused by their parents or guardians.

Furthermore, if the victim (adult or child) doesn’t know they are pregnant, or are unable, or unwilling, to report the crime or obtain counseling until after 21 weeks, the procedure becomes more complicated. It’s also why abortions after 21 weeks are exceedingly rare, comprising only 1% of all abortions nationally. Thus, this “exception” is merely another instance of a patronizing and patriarchal government beneficently, and grudgingly, granting a pregnant person a scintilla of autonomy—if they’re a proper, innocent victim, and if they beg just the right way. In short, the reporting requirement is specifically included to further punish victims of rape and incest by setting a timeline within which they must contend with their victimization, or the government will apparently not consider it a “real” rape that qualifies for the exception. I’m sure there are additional knockdown effects I haven’t even thought of yet.

A corpse literally has more bodily autonomy.

I will note here, as I have before, that these exceptions reveal the forced birther lie that this is in any way about “life.” If it were, if so-called “pro-lifers” truly believed this was about life, then they would not have an exception for rape and incest at all. Instead, by including such an exception, they’re substituting their own judgment as to the relative innocence—the value—of both the embryo and the person carrying it. This is rooted in puritanical, patriarchal mores about sexual behavior and gender roles—premised on the madonna-whore dichotomy—which seeks to punish those who engage in sex outside of the values that Republicans and forced birthers deem acceptable, by forcing a pregnant person to carry a fetus to term. If you doubt that, just listen to how they repeatedly tell people they have to “live with the consequences,” or that they “should have thought about that before you had sex,” or they should “have put an aspirin between” their knees—all lectures on chastity, rooted in governing women’s behavior.

However, the real kicker about this, and additional proof of their lies and hypocrisy, is that Senator Graham, indeed most of the Republican party, has been bleating platitudes about letting states decide the issue of abortion. In fact, on May 3, 2022, ahead of the Dobbs decision, he tweeted:

On August 7, 2022, during an interview on CNN, Graham stated “I’ve been consistent—I think states should decide the issue of marriage and states should decide the issue of abortion.”

Consistent.

I think Lindsey needs a dictionary. I mean, nothing says states should decide an issue like a federal ban.

Also, if you think they’ll leave same sex marriage to the states to decide when the Court overturns Griswold, I have some fantastic beachfront property in Kansas to sell you. And if you say “they won’t overturn Griswold“…

Bitch, please.

Given the chance, anytime people think Republicans can’t sink any lower, they ask you to hold their beer.

Stop letting them gaslight you. They will enact stricter and stricter misogynistic, patronizing laws that will continue to restrict women and other people who become pregnant. It’s already happening. Alabama already charges and jails pregnant women for drug use.¹³ In fact, many states have similarly jailed or prosecuted women for danger to their fetuses.¹⁴ They wouldn’t do that? As these forced birthers continue to push ever stricter laws, pass fetal personhood bills, including those defining life at conception, what’s to stop them from using child endangerment laws to prevent someone who is pregnant from doing a dangerous job? Or, to outlaw certain foods, or even outlaw a pregnant person from buying wine, lest they have even one glass? Who draws those lines? Which of them will decide if a pregnant person with cancer will go through chemo therapy, or be forced to wait until they’ve birthed? Will these laws, even if they go no further than this one, necessitate the investigation of every single miscarriage to ensure that people are not self-inducing abortions? Why wouldn’t it? There’s simply nothing to prevent that from happening under this framework.

Given the chance, these Republican forced birthers will jump at every opportunity to preserve White, cis-het male hegemony, and use pregnancy to relegate women and others to second class citizenship status. Their consistent lies and ever increasing radicalism is proof.

As we’ve seen time and again, “states should decide” or “state’s rights” is always Republican double speak for wanting to strip rights away from citizens. If anyone needed an object lesson in the real intent of Republicans should they win back power, it’s available in the form of one craven, misogynistic, hypocritical, medical wonder of man-walking-upright-without-a-spine: Lindsey Graham.

Welcome to Gilead, indeed.

Footnotes

1. The full text of the proposed abortion ban is available here: https://www.lgraham.senate.gov/public/_cache/files/3065785d-86b8-4d36-986a-72aa1c8f100c/protecting-pain-capable-unborn-children-from-late-term-abortions-act-.pdf

2. Gonzales v. Carhart, 550 U.S. 124 (2007).

3. Gonzales, 550 U.S. 161; Roe v. Wade, 410 U. S. 113 (1973); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 844 (1992); Stenberg v. Carhart, 530 U. S. 914 (2000).

4. Gonzales, 550 U.S. 170 (2007) (Ginsburg, J., dissenting).

5. Gonazales, 550 U.S. 163.

6. Gonzales, 550 U.S. at 177.

7. Gonzales, 550 U.S. at 180.

8. Gonzales, 550 U.S. at 186-187.

9. https://www.nejm.org/doi/full/10.1056/NEJMhle072595

10. American College of Obstetricians and Gynecologists (ACOG) ACOG statement on the US Supreme Court decision upholding the partial-birth abortion ban act of 2003 [press release] Washington, DC: ACOG; 2007.

11. There is a small moving target of teens who are consensually sexually active, and a variety of state laws that determine age of consent for the two parties.

12. https://www.abc10.com/article/news/local/sacramento/fear-shame-silence-rape-victims/103-547673944

13. https://www.washingtonpost.com/nation/2022/09/08/pregnant-women-drugs-jail/

14. https://theconversation.com/more-states-will-now-limit-abortion-but-they-have-long-used-laws-to-govern-and-sometimes-jail-pregnant-women-185830