Conservative Socialism: On Overturning Roe v. Wade

Abortion is considered as one of the more well-known hot-button social issues within US politics. Today, Roe v. Wade, the landmark Supreme Court case that made abortion possible at the Federal level, appears to be open for a potential overturning. Should Roe v. Wade be overturned by the Supreme Court, the legality of the medical procedure will no longer be valid at the Federal level and will instead be decided by the State governments. I have written about my own personal views on the matter at the behest of Hamiltonianism in an earlier post from last year. But because so much time has passed since that particular post, a formal reiteration of my positions is in order.

To begin, I am of the conviction that abortion should be limited to specific cases. Exceptions include cases of rape, incest, and the woman’s inability to survive childbirth. The latter, although rare thanks to today’s medical technologies, can happen as a consequence of the woman’s personal health. Where I draw the line is when a woman decides to terminate the pregnancy due to economic reasons. No woman should ever have to contemplate pursuing the procedure all because she simply cannot afford the costs of childbirth and childcare. This rule includes normal births without complications and complicated ones involving the caesarian procedure.

How much does it cost to give birth in these United States? The following website offers a list of the total costs of giving birth among each of the States in the Union. Basically, the average ranges somewhere between upwards of $10,000-$20,000, with some States charging as much as $30,000 for births requiring caesarian section procedures. The costs will certainly add up for women giving birth to twins as well as those having their second, third or fourth child. Abortions, on the other hand, are much cheaper and in some cases do not require any woman to pay anything.

This is the problem that I see whenever I read about anything related to abortion. Everyone who gets involved in the discussion will often skew their perspectives on the medical procedure along the lines of the Freedom-Security Dialectic. Those who recognize its necessity, the “Pro-Choice” side, will insist that a woman should have control over her body’s reproductive system, including whether to terminate a pregnancy before bringing it to term. Meanwhile, the “Pro-Life” side is inclined to argue that a woman has no control because the fetus is a human life that begins at the moment of its conception. The Pro-Choice represents the “Freedom,” whereas the Pro-Life reflects the “Security” aspect of the Dialectic. As with any application of the Freedom-Security Dialectic in Liberal Capitalist discourse, the Supreme Court case which made abortion legalized, Roe v. Wade, can be understood as follows:

  • Freedom-Insecurity (“Pro-Choice”): A woman may terminate the pregnancy as a personal health matter between herself and the gynecologist, the fetus not counting as another human life with its own position regarding its fate.
  • Unfreedom-Security (“Pro-Life”): A woman may not terminate the pregnancy as a personal health matter between herself and the gynecologist. Since the fetus counts as another human life, it too should have its own opinion regarding its fate.

The important keywords to be inferred from the Freedom-Security Dialectic are questions related to whether a woman can control her reproductive health. In the State of Total Mobilization (as opposed to the Liberal Capitalist “State of Natural Rights”), we are also dealing with another matter involving Property Rights. But instead of firearms (another American hot-button issue related to the question of Property Rights), this matter pertains to whether somebody else in the woman’s personal life decides. That somebody else, at an earlier point in US History, used to have been another man like a father, a brother, an uncle, a husband, a nephew, and so on. They have been replaced by a fetus, which, going by the Pro-Life position, should count as another person who may be in the position of objecting to her decision to terminate the pregnancy.

For the State of Total Mobilization, we must be asking whether it is within the Personal Property, the personal power of a woman to control her reproductive health. If it is not within her personal power, then it is under the power of the “other person” and they are not necessarily the gynecologist. While that “other person” is often assumed to be an unborn fetus, as the Pro-Life position is naively inclined to think, it is far more realistic for them to be State government officials who have their own policies regarding that pregnancy. Should that be the case, where does the line end with patient confidentiality and where does State scrutiny (as in, the attention of specific State government authorities) begin with regard to enforcing a potential criminalization of abortion?

There is a convincing article on the Lawfare Blog which delves into the constitutional precedent that might emerge with the overturning of Roe v. Wade. Its central argument rests on what implications does criminalizing abortion pose to Amendment IV, one of the ten Amendments in the US Constitution that form the Bill of Rights. Amendment IV was included to the Bill of Rights to protect people from unreasonable searches on their person (that is, their “Self”) as well as their Personal Property. The real exception begins whenever there are justifications on legal grounds to conduct search and seizure of a person suspected of committing a crime, and that is precisely where the authors of the aforementioned Blog are trying to argue:

“The state in which Jessica lives prohibits and criminalizes abortion for any reason, defining a fertilized egg as a person. Jessica tells her friends and family that she had a miscarriage at 11 weeks of pregnancy. One of her roommates doesn’t believe her and reports her to the local police for having had an abortion.

The local police investigate Jessica for what they believe is a possible violation of the state’s law criminalizing abortion. Based on the initial investigation, police officers determine that Jessica wanted to terminate her pregnancy and was trying to find the ‘abortion drug.’ They obtain a warrant to search her phone. On her phone, they discover evidence that she searched for information about abortion and purchased mifepristone and misoprostol. These drugs can cause an abortion, but they are also used to help women complete the process of miscarriage. They also find evidence of when she had her last period on a period-tracking app, which further substantiates that she was pregnant for 11 weeks. The evidence obtained from Jessica’s phone is used to prosecute her for violating the state’s law criminalizing abortion.”

The questions posed by the aforementioned scenario and the rest of the post from the authors are valid ones. In an America shaped by post-9/11 mass surveillance technologies implemented to curtail terrorism, it would be naïve to not realize that those same technologies can also be repurposed toward other applications which have nothing to do with counterterrorism. One obvious example has been advertising, particularly the ability to take information about someone’s personal preferences online and show them personalized advertisements based on those same preferences. Another related application, which the authors did mention, is the ability to track online financial transactions that can be misconstrued as being purchased toward illegal ends. While it is true that there are plenty of countermeasures against mass surveillance, the authors maintained that such measures will deter poorer women from being able to safely terminate a pregnancy in these conditions:

“Minority communities are already subject to a greater degree of suspicion and surveillance, and such discriminatory surveillance will compromise the ability of members of these communities to protect themselves when seeking reproductive health care. Poverty also makes evading surveillance and obtaining services more challenging. Moreover, even when there have been significant prohibitions on abortion in the past, white, socioeconomically advantaged women have always had better access to safe abortions, and there is no doubt these disparities will persist. But with the outright criminalization of abortion, a new population of people, regardless of their financial resources, will experience a significantly heightened threat model. The modern digital age readily enables investigations of all those who use its communications products and services—essentially anyone who is connected. The more connected you are, the more vulnerable you may be.

The ubiquity of cellphones, which are essentially tracking devices, and the data collection, merging, and analytic processes that we as a country have chosen not to regulate, will make women, people who can become pregnant, and health care providers vulnerable to suspicion and investigation when abortion is criminalized. Anti-abortion coalitions and individual vigilantes could even purchase and analyze data sets from data brokers, which the law does not prohibit, in order to identify and place women under suspicion as a result of changes in their habits, the products they purchase, or the places they have traveled.”

“Law enforcement can build probable cause in a number of ways including, as authorized by the ECPA [(Electronic Communications Privacy Act of 1986)], compelling certain kinds of non-content data from providers and platforms through the use of subpoenas and 2703(d) orders, neither of which requires a probable cause showing. Moreover, when building probable cause in an abortion investigation, a woman’s purchase of common items like mason jars, aquarium tubing and syringes, which could be used to construct a device for “at home” abortions not involving pharmaceuticals, may be considered relevant pieces of information. 

In the context of reproductive crimes, simply requiring warrants will not be sufficient to “secure the ‘privacies of life’ against ‘arbitrary power’ and ‘place obstacles in the way of a too permeating police surveillance.’” Think back to the case of Jessica, the fictitious woman prosecuted for obtaining an abortion after claiming she had suffered a miscarriage. Examining the details of someone’s menstrual cycle and record of intimate, sexual activity is an invasive inquiry into the way in which a pregnancy ended. The fact that the officers were required to get a warrant to search her phone in order to obtain information related to her reproductive and health care decisions does not begin to mitigate the extent to which the criminalization of abortion foments governmental intrusions into women’s privacy and liberty interests. Moreover, the fact that even warrants won’t prevent law enforcement access to highly personal and intimate data will have additional chilling effects; people who can become pregnant will change or limit their online behavior, restrict communications, be aware of where they go and whether they bring their phone with them, and avoid using the internet to acquire information about their health and well-being.” 

This may seem extreme, but I have met plenty of Americans over the years who have no scruples about tolerating such a scenario. If they can tolerate mass surveillance technologies and the commercialization of their personal data by social media tech firms, what else are they willing to tolerate? Again, where does the line end with patient confidentiality and where does the line begin with State scrutiny?

Categories: Philosophy

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