Abortion bans harm people based on sex because pregnancy is a biological process related to sex. To make a sex equality argument, we must name that reality.
In the draft Supreme Court opinion overturning Roe v. Wade, Samuel Alito dismisses the idea that denying access to abortion is unconstitutional sex discrimination. He argues, “a State’s regulation of abortion is not a sex-based classification.” He cites a controversial 1974 Supreme Court decision—Geduldig v. Aiello—where the Court ruled a California disability insurance program excluding pregnancy did not violate the 14th Amendment equal protection clause because the policy did not discriminate between men and women but only between“pregnant and non-pregnant persons.” In 1974, feminists criticized this argument as a disingenuous justification for perpetuating sexism in the workplace.
Today, the language of “pregnant persons” is common. In fact, many reproductive justice advocates are now exclusively using the phrase “pregnant people” rather than “pregnant women” in discussions of abortion. Their motivations differ from those of Alito and his conservative predecessors on the Geduldig court. Contemporary advocates call for the elimination of sex-based language in discussions of abortion in order to be inclusive of trans men, non-binary and gender non-conforming people who need abortion.
While inclusive language is important because gender diverse people experience pregnancy and need abortion, using sex-neutral language risks obscuring the sexism underlying anti-abortion laws and policies—sexism that harms not only pregnant women, but also pregnant trans men and nonbinary people.
Legislators who promote abortion bans are discriminating against people based on sex. They intentionally target women when they pass abortion bans and often don’t even recognize the existence of gender identity. Trans men and nonbinary people whose reproductive rights are threatened may not identify as women, but they still experience discrimination based on the sex assigned to them at birth when they are denied abortion healthcare. Refusal to talk about how abortion bans are based on sex plays into right-wing denials of sex-based disparities and discrimination.
If the Supreme Court overturns constitutional abortion rights based on privacy rights established in Roe v. Wade under the 14th Amendment due process clause, then the newly ratified Equal Rights Amendment becomes our best hope for constitutional protection of abortion rights. The ERA says, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” If we don’t talk about sex, we make it appear as if pregnancy is sex neutral, but it’s not. Abortion bans harm people based on sex because pregnancy is a biological process related to sex. To make a sex equality argument, we must name that reality.
There is some precedent for the principle that abortion restrictions violate equal rights. In 1998, the New Mexico Supreme Court ruled that an abortion funding prohibition violated the New Mexico state equal rights amendment. A 1986 case Connecticut Supreme Court case struck down a similar abortion funding restriction as sex discrimination in violation of the Connecticut equal rights amendment. The federal Equal Rights Amendment, which was finally ratified in 2019, can be a powerful tool for establishing a constitutional right to abortion, but it depends on recognizing that abortion restrictions discriminate based on sex. If we talk about pregnant people, we hide the sex-based nature of abortion restrictions.
“It is possible—and indeed, necessary—to regard pregnancy as a status that doesn’t just affect people who identify as women, and also call out the sex-based discrimination inherent in abortion bans,” said law professor Erin Buzuvis of Western New England University School of Law, who is an expert on inclusion of transgender athletes in high school and college athletics.
Using gender-neutral language around pregnancy, abortion and sex discrimination is as damaging as using colorblind language around race discrimination because it fails to identify the targets, the victims and the specificity of the oppression.
Loretta Ross
Obscuring sex-based discrimination is a long-term and ongoing strategy of conservatives who oppose women’s rights. One of the first things Trump did when he took office was eliminate the collection of pay data by sex and race. Anti-feminists have for years pushed for a shift in federally-funded teen dating violence research and education away from a feminist analysis of how violence is gendered and toward a gender-neutral framework—one that rests upon the idea that men and women engage in mutual, reciprocal and equivalent violence, despite significant research showing that men are much more likely to abuse and harm women than vice versa. Obscuring sex-based differences bolsters conservative arguments that they are not discriminating against women when they fail to act address pay discrepancies or violence against women, or when they advocate for abortion bans and restrictions.
Just as conservatives obscure sex-based discrimination, they also advocate for race “neutrality.” In tirades against “critical race theory,” conservatives demand removal of any mention of race in public education. They cite Martin Luther King’s “I Have a Dream Speech” where he says “judge us by the content of our character, not by the color of our skin.” They weaponize “colorblind” arguments to eliminate affirmative action and other policies that attempt to address the legacy of slavery and Jim Crow segregation as well as current-day mass incarceration and the ongoing impacts of racial inequality in American society.
Long-time reproductive justice activist Loretta Ross warns against eliminating references to women in discussions of abortion. “Using gender-neutral language around pregnancy, abortion and sex discrimination is as damaging as using colorblind language around race discrimination because it fails to identify the targets, the victims and the specificity of the oppression.”
Just as the right wing denies racial disparities in order to perpetuate racial hierarchies, they also deny sex-based disparities to perpetuate sex-based hierarchies. The goal of the anti-abortion movement is not sex neutral. Abortion bans are sex discriminatory because they are intended to restrict women’s access to abortion and they disproportionately harm women, who make up more than 99 percent of those who become pregnant and obtain abortions. Abortion bans harm women by denying them equal opportunities in education, employment and politics and contributing to the feminization of poverty.
When women as a class cannot make our own reproductive decisions, it gets much, much harder for us to participate in public life. … Anti-abortion laws are misogynist laws.
Jill Filopovic
The language of “pregnant people” hides the sex-based impacts of abortion bans. What people? Not cisgender men. It’s non-trans women, trans men and nonbinary people who are harmed by abortion bans. We need to name this fact to highlight how abortion bans intentionally discriminate based on sex and violate sex equality. Eliminating references to women from our abortion advocacy work obscures the misogyny of the anti-abortion movement and blocks a potent equality argument against abortion bans. We can be inclusive and still name sexism when it occurs.
In a recent article, feminist author Jill Filopovic explains:
“Efforts to curtail abortion rights are specifically focused on a return to traditional gender roles and gender hierarchies. That is: As a political force, the anti-abortion movement seeks to roll back women’s rights, and to push women out of public, political, and economic life. They understand that the primary way women have long been relegated to the private is through the reproductive capacity that women as a class are understood to have. That is why they focus so much on walking back reproductive rights rather than, say, supporting children: They know just as well as feminists do that when women as a class cannot make our own reproductive decisions, it gets much, much harder for us to participate in public life. We become much less self-sufficient and much more vulnerable. And men gain a significant advantage. Anti-abortion laws are misogynist laws.”
To effectively counter the anti-abortion movement and the harmful laws they advocate, we have to talk about sexism against women to highlight the misogyny of anti-abortion laws. If we obscure the sex-based nature of abortion bans and restrictions by always talking about pregnant people and never talking about the women who are in fact the primary targets of the anti-abortion movement, we play into the right-wing strategy of burying the inherent misogyny underlying abortion restrictions.
Just as a race-neutral framing of policing or gentrification does not address the inherent racism of these systems, a sex-neutral framing of pregnancy and abortion does not address the sexism and misogyny of abortion bans. We must name the sex and race-based power dynamics at play in oppressive laws and social systems.
Equality arguments can benefit not only women but also transgender and nonbinary people, as we saw in the Supreme Court case of Bostock v. Clayton County, which ruled that employment discrimination against transgender people was illegal sex discrimination in violation of Title VII of the Civil Rights Act. We should use these powerful arguments.
Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization leaked in early May indicated that the Supreme Court is preparing to overturn the 49-year-old precedent Roe v. Wade, which recognized the constitutional right to abortion healthcare. If Roe is overturned, 26 states are certain or likely to ban abortion, leaving over 33 million women, trans men and nonbinary people of reproductive age without access to legal abortion healthcare in their own states and forcing them to travel long distances to receive this care.
The most powerful argument for abortion rights is to highlight the sex-based nature of these restrictions and argue that they violate equal rights. To succeed in arguing that sex equality requires the right to abortion, we need to be able to talk about how sex shapes access to abortion and how anti-abortion legislators target women with devastating consequences, especially for Black women, who are three times more likely than white women to die in childbirth. The elimination of sex-based language in abortion politics makes this argument impossible, and reinforces the long-term right-wing strategy of suppressing information about sex-based disparities. Let’s not fall into that trap.
Sign and share Ms.’s relaunched “We Have Had Abortions” petition—whether you yourself have had an abortion, or simply stand in solidarity with those who have—to let the Supreme Court, Congress and the White House know: We will not give up the right to safe, legal, accessible abortion.
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