The Insidious Legal Theory Behind the Abortion Rights Rollback
This is strikingly similar to the penalization schemes active in numerous states today, which often provide specific criminal and civil penalties for those helping others to get abortions—but expressly exempt pregnant women themselves from this liability. Two examples of this are the Texas Health and Safety Code Chapter 170A (“This chapter may not be construed to authorize the imposition of criminal, civil, or administrative liability or penalties on a pregnant female on whom an abortion is performed, induced, or attempted”) and the Oklahoma Public Health Code (“No penalty may be assessed against the woman upon whom the abortion is performed or induced or attempted to be performed or induced”). As under coverture, the independent legal identity of the pregnant woman is virtually nonexistent.
What is so insidious and effective about repurposing the mechanisms underlying coverture in this new context is that it sanitizes coverture’s now-obvious sexism by replacing the idea of the husband with the idea of the child. Nowadays, a law that expressly privileged men over women would have a hard time surviving public scrutiny. But a law that expressly privileges the idea of children over women is another matter entirely. Because even today, we tend to view pregnant women as mothers first and anything else second, and women who attempt to fight against this framing are often vilified as cruel or uncaring, or simply bad mothers. In short, we already have a cultural apparatus that primes us to minimize a woman’s identity in proximity to pregnancy or children.
This is why substituting the identity of the fetus for that of the husband is such a compelling reframing of coverture. It takes an obviously retrograde legal fiction—that a woman does not have a stable, independent legal identity—and retrofits it with a more current sense of morality in order to render it palatable. Now, instead of losing her legal identity to her husband, a woman loses her legal identity to her fetus. The pregnant person simply vanishes.
