The Domino Effects of New Anti-abortion Laws
Plus: Thomas Chatterton Williams on abolishing the fiction of racial difference, and reader views on humor in the workplace
This is an edition of Up for Debate, a newsletter by Conor Friedersdorf. On Wednesdays, he rounds up timely conversations and solicits reader responses to one thought-provoking question. Later, he publishes some thoughtful replies. Sign up for the newsletter here.
Question of the Week
Should Americans have a right to privacy and/or bodily autonomy? If so, what should those rights encompass and exclude? Abortion? Carrying a pistol? Selling a kidney? Taking heroin? Keeping a Swiss bank account? Assembling explosive devices in your house? How would you word a constitutional amendment, knowing it would pass and constrain lawmakers for decades?
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Conversations of Note
Brooke Oberwetter was 31 when she unexpectedly got pregnant. She talked over all of her options, including abortion, with her doctor, her partner, her family, and her close friends. Then she decided to continue the pregnancy. At 10 weeks, she went for a sonogram. Inexplicably, there was no heartbeat. To clear the pregnancy she required a dilation-and-curettage procedure. In an incisive Medium essay reacting to the Supreme Court decision in Dobbs v. Jackson, she imagines what it would be like to go through all of that in her hometown of Dallas, Texas, today—and to do so as a sarcastic sort who responds to grief and trauma by making inappropriate jokes.
She begins by reviewing the facts of her case:
- I was taking hormonal birth control, clearly showing that I was not interested in having a baby.
- I stated to my doctor, my partner, and numerous friends that I was considering an abortion.
- My Google search history indicated that I had looked up how much time I had to make a decision regarding an abortion, clinics nearby, and recovery times. Perhaps in my darker moments during that time, I Googled self-induced abortions. …
- My Google search history did not indicate searches for baby names, pregnancy photographers, or over-the-top gender reveal party ideas. …
- The heart inexplicably stopped beating.
Her analysis of those facts:
Imagine my medical care depending on every doctor or nurse involved trusting that I wanted the pregnancy and hadn’t done anything to jeopardize it … Imagine their livelihoods and medical licenses depending on that trust. Imagine one of my jokes not landing and one of them refusing care or calling the authorities because I didn’t sell it hard enough.
And what about the issues that have nothing to do with my off-color sense of humor? Will someone dime out my boyfriend for driving me to my appointment or my doctor for performing a D&C in exchange for the $10,000 reward? Will my doctor even provide care after the conversation we’ve had about abortion, or is the risk of potential criminal liability too much? Should she refer me to a doctor out-of-state? (She isn’t even sure if it’s legal to make that suggestion, and her insurance company has told her not to take any chances, so she keeps it to herself.) If I just wait for the miscarriage to complete itself naturally, will anyone be suspicious if there’s a complication that sends me to the ER?
All of these factors affect quality of care, contra “the people trying to convince you that broader women’s health care isn’t in jeopardy,” she argues. “These are hysterical lies by the media, they say. None of these laws impact miscarriage treatment, they say. But they will, in a thousand little ways.”
In a country where Roe and Casey protected abortion rights, debates about the issue usually focused on when human life begins, or on abortion procedures in the final trimester of pregnancy. Now, as states pass or enforce new laws, debate about the issue will more often encompass not just the intended consequences of prohibiting earlier abortions, but all of the unintended consequences of prohibitionist policies as they alter human behavior throughout the medical system.
What’s more, as Noah Millman points out, the states won’t be the only entities grappling with the issue, because the Supreme Court will likely be asked to review many laws that Dobbs inspires.
For example, while the Court returned the issue to the states, we may nonetheless get federal legislation to protect abortion rights—or, when the Republicans retake power, to restrict them. The Court will have to decide whether abortion really is entirely a state matter (in which case it would have to strike down either federal protections or federal restrictions) or whether there’s some basis for the federal government expressing an interest in the subject. Bear in mind that even if outright codifying Roe or banning abortion is off the table, the federal government has a number of fiscal and regulatory levers it might pull for either the pro- or anti-abortion rights side in order to strong-arm the states into liberalizing or restricting their laws. Any and all of this would wind up in court.
The states, too, are likely to take steps that will raise novel legal questions. Anti-abortion states are definitely going to try to criminalize traveling out of state to obtain an abortion. That’s something Justice Kavanaugh explicitly cited in his concurrence as questionable—he might turn out to be the deciding vote in a future case, and get the chance to repeat those words in an opinion. The most restrictive states are likely [to] ban pharmacies from dispensing abortifacients—something that I’m pretty sure is entirely under the FDA’s purview. Since medication-induced abortions now constitute more than half of all abortions, I am sure some states will try to regulate the medications themselves in order to ban them, and will wind up in court. There will also be challenges to laws that require investigation of miscarriages (possibly on the basis of the 4th Amendment), and laws that interfere with genuine life-saving treatment without an obvious rational basis.
Nor is it certain that only the restricting states will pass legislation that presents novel legal problems. I wouldn’t be surprised if some states with liberal abortion laws try to use their own economic leverage in envelope-pushing ways against anti-abortion states, perhaps directly, perhaps through the medical system, and perhaps through pressure on employers.
The libertarian journalist Matt Welch has described his position on abortion not as “pro-life” or “pro-choice,” but as “anti-prohibitionist.” As new laws take effect and their downside consequences become realities, I expect more Americans to become abortion anti-prohibitionists (while remaining totally inconsistent about whether the issue should be decided at the federal or state level, depending on what outcome they prefer in a given moment).
Michael Brendan Dougherty believes that any such skeptic of America’s new abortion regime is likely to underestimate its benefits even though, in his telling, those benefits will be walking among us:
One plausible estimate is that the legal ramifications of Roe’s fall will result in a 14 percent reduction in abortions across the nation; roughly 84,000 children will be born annually who otherwise would not. That number can grow from there, and over decades it will begin compounding.
Pro-choice activists like to point out that you probably know people who have had abortions. They are your sisters, aunts, neighbors. That’s true. But Roe’s end has other ramifications as well. If normal people have a social circle of 150 meaningful contacts, 500 acquaintances, and about 1,500 people they can at least recognize, then in a few short years every American will know, recognize, and interact with a young person who was saved from abortion by last week’s ruling. You won’t know who they are. In most cases, they won’t know who they are—but they’ll be there. In 25 years, they will be studded throughout your life, going to college, working jobs all around you. They’ll be your kids’ friends and teammates. Someday, maybe their spouses. They may be assisting you in your old-age home. That’s the future that is certainly coming into being.
That’s a legacy worth celebrating.
Jill Filipovic challenges that logic, tweeting that “today, you’re meeting tons of people … who you would never have met, and who may not have existed, if their mothers or grandmothers hadn’t had abortions.” In her telling, “outlawing abortion doesn’t mean that every woman who had an abortion would have the same number of kids plus one more. It means that a woman forced into pregnancy and childbirth does not have the chance to birth the child she wanted and planned for.” She recalls a “staunch pro-lifer” telling a friend of hers, “You wouldn't have existed if your mother had had an abortion,” and that particular friend replying, “Actually, I exist because she did.”
In The Washington Post, Caroline Kitchener tells the story of an 18-year-old in Texas who wanted an abortion but wound up with twins due to the passage of an abortion law in her state. Reactions to her story will presumably differ depending on how readers feel about abortion.
In Unherd, Kat Rosenfield makes the case for bringing back the formulation “safe, legal, and rare.”
Abolish the Pernicious Fiction of Race
That’s what the Atlantic contributing writer Thomas Chatterton Williams urged this week at the Aspen Ideas Festival, where he said:
If we’re ever going to transcend the racism that still divides us we’re going to have to do more than be anti-racist and become genuinely anti-race. It is not enough to simply pay lip service to the idea that race is biologically meaningless and then go about living our lives reproducing and relying on the very linguistic habits and customs of sight and thought that continue to make it meaningful, day in and day out, in all of our institutional and interpersonal interactions.
We’re going to have to find the courage and originality to let go of the logic of the past inherited from slavery and find new ways of conceiving of ourselves and each other that are adequate to the complexity of our multi-ethnic present and future.
If we think of the country’s racial sickness as a kind of autoimmune disorder, then antiracism can only and ever be a partial and temporary solution addressing itself to the symptoms and flare-ups as they happen. To drill down to the root cause and compel the body politic to stop turning on itself and mistaking itself for an enemy, we’re going to have to once and for all rid ourselves of the disastrous illusion of human racial difference and the hierarchies of affinity and worth that this illusion necessarily imposes.
I profiled Williams in 2019.
Humor in the Workplace
Michael, a reader of this newsletter, teaches a class on humor in professional settings, where he tells students:
When a joke goes wrong at work, as it inevitably does, it’s tempting to prohibit all humor in the workplace. But isn’t that too restrictive? Should work be, well, all work? No fun at all? But, if we do allow some humor, some fun, then where do we draw the line? Human Resources departments and business leaders grapple with these questions. They may be surprised to learn that the questions are old—really old. They go all the way back to the first major theorist of humor, the Greek philosopher Aristotle (384-322 BCE). In Nicomachean Ethics, he mulls the possibility of regulating joking in public life, of drawing a hard and fast line between appropriate and inappropriate humor.
Ultimately, Aristotle can’t decide for himself, as tastes differ. Aristotle writes:
Whatever rule we lay down, the same will apply to the things that a man should allow to be said to him, since we feel that deeds which a man permits to be ascribed to him he would not stop at actually doing. Hence a man will draw the line at some jokes; for obnoxious jokes are a sort of vilification, and some forms of vilification are forbidden by law; perhaps some forms of obnoxious jokes ought to be prohibited also. The cultivated gentleman will therefore regulate his wit, and will be as it were a law to himself.
For Aristotle, liberal-minded, gracious people should regulate their own jokes—and that way, his or her workplace won’t feel the need to do it for them. If you’re the leader of an organization or team, therefore, you can foster this sense of personal responsibility by setting the tone yourself—and leading by your own example.
It’s also worth noting that even if organizations try to prohibit humor as a matter of policy, it won’t work. Humor always leaks out somehow, especially “anti-regime humor.” Those are the subversive jokes we all engage in when we feel like we’re chafing under the yoke. For example, you’ll see a big increase in irony. The ancients were masters of saying one thing while implying its opposite. (This trick was a specialty of Socrates, one of the greatest of all Greek philosophers—and the father of trolling.) Ancient orators taught a particular trick called praeteritio or paraleipsis. That’s where you deny you’ll say the very thing you’re saying. For example: “Nobody in this room is saying you’re a terrible boss, sir. In fact, it would be against the rules for us to even mention how badly you’ve been treating us. No, we’d never mention all those times you … etc.”
Over 2,300 years later, offices still struggle about where to draw the line.
Another reader, Jim, describes an approach to humor at work that would quickly get him in trouble in many offices, but that he considers a long-running success in the kitchen where he works:
I work in restaurants, which are notoriously stressful, and at 60, am something of an eminence grise where I work. I use humor as a tension breaker and as a way to build camaraderie.
Often but not always, I use humor that is mostly at my own expense. I feign ignorance of sports ball and announce developments from the bar TV that the Super Bowl guys in blue just scored a home run. I tell Dad Jokes. When a chef yells “Can I get fries from the back” my go to is, “I don’t know: CAN you?” I would absolutely change it up and tell the bi-women joke to my all female chef staff. The goal here is to offer the kitchen a chance to throw raw Brussels sprouts at me, roll their eyes, threaten me with HR etc. and reset …
“You are SUCH an asshole” is the highest form of praise we have. I am told nurses in psych wards have similar dynamics … None of this is to say that we should return to “calm down now little lady, no need to go all hysterical over one little rape joke,” but to suggest time, place, context, and intent matter. Jokes made in the back of the house will never make it past the kitchen door for all of those reasons. Telling my bartender the bi-women joke was made even funnier when I suggested he tell it to his famously serious wife and “let me know how that works for you.” He pelted me with a lime. Mission accomplished.
I would love to interview Jim’s kitchen colleagues to get their take.
Provocation of the Week
A reader of this newsletter named Zach is vehemently opposed to employers policing the speech of workers in their off hours, a position he arrived at by way of an unusual childhood experience.
I’m a young law student who grew up in a cult. The level of political and social control other people have over you in cults is astounding. My parents had to give their boss at work a prospective schedule of their next week, broken down into 30-minute segments, saying what they would be doing in each. The next week, they would follow up on how well they followed that plan. If they weren’t meeting specific standards, there were real consequences. There was no daylight between my parent’s work and home life. Everything from their morning routine to their workout schedule was policed—by their boss.
The kind of power that radical elements in our society try to enforce when they pressure employers to take employment action on the basis of something that a person does on their own time is the same kind of power that the cult exercised over my parents and me. It’s abhorrent, it’s cruel, and it’s undignified for people who take life so seriously to take out their own issues on other people. These people who care so much about the purity of “the discourse”––they are the problem. I get that sometimes people say things that are genuinely harmful and that some people in public positions will be naturally subject to a higher level of scrutiny. But I still think the form of that pressure is a terrible thing. I would encourage employers who have public-facing employees to be more circumspect in how they respond to this kind of pressure.
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