In my last essay, I wrote about the obligation of a progressive prosecutor to do justice beyond her silo. As just one illustration, I offered the example of elected prosecutors who have denounced laws that criminalize reproductive health choices by women, and who have pledged not to prosecute women or health care providers accused of violating these new statutes.
Some people have taken a very different view. John Melvin, a district attorney in Atlanta, recently authored an op-ed in which he condemned the prosecutors who have vowed to resist the new laws, including HB 481 in Georgia. To Melvin, those who oppose the new Georgia law are the moral and intellectual descendants of Nazis and separate-but-equal segregationists, asserting a position “that would have been welcome” in the Third Reich and Jim Crow south. He likened them to Bull Connor, the legendary Alabama lawman who attacked civil rights protestors and misused the law to defend white supremacy.
I leave it to prosecutors to defend the exercise of their discretion. Here, I devote myself to elaborating a position that I would’ve thought was self-evident. Defending a woman’s right to end an unwanted pregnancy is not remotely comparable to Nazism or Jim Crow.
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I never thought I would need to remind people of this, and to draw such elementary distinctions, but Jim Crow and Nazism obligated that African Americans and Jews be treated as less than human. Nazism conceived state-imposed genocide as “the final solution,” and Jim Crow envisioned state-imposed inferiority as a way of life, to be continued forever. Essential to both was the role the state played in mandating death and degradation by the millions.
By contrast, there is no abortion law in the country that obligates a woman to end a pregnancy. If there were, it would certainly and rightly be struck down. No right-thinking legislator would ever propose such a law, let alone vote for it, and if somehow it became law, it would be invalidated before the ink dried. Merely because the Constitution requires that a woman be permitted to get an abortion—under certain circumstances and subject to important restrictions—does not remotely alter the fact that it is a choice made by a private individual, rather than compelled by the state.
If anyone has trouble understanding this distinction, consider that the Constitution also permits private gun ownership—under certain circumstances and subject to restrictions—but no one imagines the state is on a campaign to force everyone to buy a gun. The Constitution also permits same-sex marriage, but no one supposes the state plans to force everyone to become either gay or married. In short, what the Constitution demands as an available option is a far cry from what it imposes as an inexorable fate.
In addition, in case anyone needs reminding, Nazism and Jim Crow existed to sear whiteness into every aspect of life. They burned racial purity into the real and imagined landscape, raising it as a barbed wire border between member and outcast, and therefore also between dignity and humiliation, life and death. White supremacy was their warp and woof.
By contrast, the right to control one’s body does not exist to promote or protect whiteness. Of the total number of women who chose to have an abortion in 2014, the largest number by far—nearly four in ten in 2014—were white. Though black women were over-represented, they still had many thousand fewer abortions than white women, and I have never heard anyone argue that white women who end their pregnancies are willful participants in a deliberate campaign to achieve and maintain their racial superiority.
In fact, if there is any distinguishing feature in the demographics of women who have an abortion it is not race or ethnicity, but class. Over the past few decades, abortion has increasingly become concentrated among the poor. Of the women who ended a pregnancy in 2014, nearly half had income levels below the poverty line, and another quarter were low income. Public health officials attribute this disparity to differential access to health care and education among the poorest and most vulnerable. Yet I do not hear anti-abortion advocates calling for steep increases in taxes to fund health and education programs that would eliminate the disparities that ought to cause them such dismay.
Finally, in comparing abortion to Jim Crow and Nazism, there is the matter of a woman’s right to assert her interests against those of the state. In a contest between the two, when—if ever—does the woman prevail? In the spasm of new anti-abortion bills, a woman’s right is trampled nearly to the point of extinguishment. The state’s interest prevails almost immediately, and in nearly every circumstance. Indeed, that is the avowed purpose of these enactments; they are written in order to defeat the woman’s right to choose.
And in that, the new laws come closest to the apogee of white supremacist reasoning. In 1847, Chief Justice Taney wrote one of the most reprehensible passages in Supreme Court history. Today, when we ask whether a woman in this country has any right to control her body which prevails against the contrary interest asserted by the state, we are well to remember the day when the Court believed that blacks “had no rights which the white man was bound to respect.” Taney thought this conclusion perfectly obvious, inasmuch as blacks had long been regarded as “beings of an inferior order.” Indeed, this assessment was “fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics which no one thought of disputing or supposed to be open to dispute, and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.” In taking the position that a pregnant woman has almost no right the state is bound to respect, the opponents of abortion come closer to Jim Crow than its defenders ever have.
Current precedent in the Supreme Court grants a woman a limited right to control her body by ending an unwanted pregnancy. To suggest that even this fragile, partial protection is akin to the genocidal ugliness of Jim Crow and Nazi Germany is more than intellectually and morally bankrupt. It is shameful, and deserves the most direct condemnation.
