Abortion and the Law’s Control of Bodies
In yesterday’s confirmation hearings for Supreme Court nominee Brett Kavanaugh, Senator Kamala Harris of California, a likely presidential candidate in 2020, asked a perplexing question, and Kavanaugh provided an even more perplexing answer.
Kamala Harris: “Can you think of any laws that give the government the power to make decisions about the male body?”
Brett Kavanaugh: “I’m not… I’m not thinking of any right now, Senator.”
I say “perplexing” because every law, with the exception of thought crimes, makes decisions about bodies, because every law, with the exception of thought crimes, is about telling us what actions we can, can’t, or must take.
Take speed limits. The law says I can’t drive faster than 65 miles per hour on this stretch of freeway. In practice, what this means is that the lawmakers have decided that I cannot use my body to accelerate a car above 65 miles per hour. If I fail to follow the law — if I do use my body to press the gas pedal such that the car goes above 65 — I will be punished, assuming I’m caught.
We can tell the same story for any other law you might think of. The simple fact is that law is always and only about setting up a system of rules that “make decisions” about permissible actions. Thus Harris’s question is perplexing and so is Kavanaugh’s stumbling for an answer, because the answer is obvious. Are there laws that make decisions about the male body? Yes, basically all of them. Except for laws that can only possibly ever apply to women’s bodies. (There are, obviously, laws that are just as biologically limited in their reach, but on the male side. The law requiring all men to register for the military draft is one.)
Of course, Harris isn’t interested in laws generally. She’s interested in Kavanaugh’s views on abortion. She, like many other Democrats is worried that Kavanaugh will some day, if confirmed, vote to overturn Roe v. Wade. And, like many pro-choice Americans, she’s framed the issue of abortion as one of “controlling…