August 2, 2022 | Reading Time: 4 minutes
Abortion as self-defense in the coming age of ‘personhood’
Pregnancy is an imminent threat of bodily harm.
Abortion is self-defense. Self-defense should be a defense to the criminalization of abortion. If a pregnant person is arrested for having an abortion, they should be able to claim self-defense.
Obviously this is currently not an accepted legal defense. But in this new post-Roe era – with the possible codification of personhood and the increased criminalization of pregnant people – activists should start embracing self-defense as a legitimate legal strategy.
Deeply rooted history
It’s long been an accepted legal principle that you are allowed to commit violence, or even murder, in defense of yourself or others. Every state and the District of Columbia have self-defense laws. There are a few shared principles that date back to common law.
You can claim self-defense if you use a proportional amount of violence in response to an imminent threat of unprovoked violence. The imminent threat is determined based on the “reasonable man” standard – is your fear of imminent violence reasonable?
Even if you think the fetus is “alive” and a “person,” self-defense clearly justifies using deadly violence. An unwanted “person” in your body posing imminent threat of harm legally justifies self-defense.
Common law and most state laws say you have a “duty to retreat” unless you are in your own home. This means it is incumbent on you to try to leave, rather than commit violence, but you are not required to leave your own home. (So-called “stand your ground laws” have expanded self-defense so you never have a duty to retreat.) In order to claim that an abortion is an act of self-defense, you need to prove that you have a reasonable fear that your pregnancy could imminently cause you bodily harm and that an abortion is a proportional response to such an imminent threat.
Pregnancy is never “uncomplicated”
Even the most successful and uncomplicated pregnancy enacts bodily harm on the pregnant person. Common side effects include incontinence, throwing up multiple times a day, bleeding gums, anemia, exhaustion and urinary tract infections.
Full term pregnancies end after hours of searing pain – with major abdominal surgery or a pretty significant assault on your vagina. A labor isn’t even considered “prolonged” until it hits 20 hours. So 12 hours of pain without being able to eat or drink is considered the “uncomplicated” version. The average blood loss during labor (not considered excessive) is 500-1,000 ml. During labor, the pregnant person can break their tailbone, need an episiotomy or experience vaginal tearing. Everyone typically needs six weeks to recover.
Pregnancy causes harm
Eight percent of pregnancies are so complicated they result in serious harm, or death, to the pregnant person or the fetus.
Preeclampsia – a hypertension disorder that can result in maternal and infant mortality – occurs in up to 8 percent of pregnancies.
Gestational diabetes similarly occurs in up to 8 percent of pregnancies and can lead to high blood pressure, a difficult birth and Type 2 diabetes for both the mother and child later in life.
Two percent of pregnancies are ectopic. The fertilized egg didn’t implant in the uterus. That’s deadly if not treated with an abortion.
My own mother had “uncomplicated” pregnancies with me and my brother. But she had serious complications during labor. I had the umbilical cord wrapped around my neck (malposition). My brother got stuck after his head was delivered (shoulder dystocia).
Without proper treatment these complications could have resulted in death for us or our mother. Maternal mortality rates in the US are the highest of any developed nation. When you see the actual numbers, it might seem like a small risk, but with abortions banned it could lead to a 21 percent increase in pregnancy-related deaths.
I hope we all agree. Pregnancy causes bodily harm.
Self-defense against the harms of pregnancy
Let’s take one of the most common side effects – morning sickness.
I was laughed at when I suggested recently that it was reasonable to get an abortion in self-defense against morning sickness.
But let’s think this through.
Imagine someone has poisoned you, causing you to vomit a few times a day for weeks. You have a chance to stop from poisoning you again – maybe by shooting them (you are weak from puking after all).
Most courts would let you make a self-defense claim.
Once you’re pregnant, the harm is clearly imminent and the only way to stop the harm is an abortion. (Proportionality is handled as well).
In the face of personhood claims
Some worry that a self-defense argument would cede ground to the personhood argument. After all, you can’t claim self-defense if the fetus isn’t a person. Unfortunately, it’s increasingly clear that we need a legal argument for abortion in the face of personhood claims.
You might wonder what the point of such a legal argument is. After all, if the Republicans manage to get national personhood passed, it’s not like they’re going to be swayed by a compelling legal claim.
Truth is, we know abortions will happen, legal or not. So we need a defense for when pregnant people are ultimately criminalized. Many judges and juries will be looking for reasons to acquit people criminalized for abortions no matter what the law says. Self defense could provide that successful defense.
We also need legal arguments for people who had abortions to save their own lives. A self-defense claim is made for that. Edward Volokh argues that abortion as self-defense claim has already been accepted when used to save the life of the mother in later-term pregnancies.
Up until now we were right to use the phrase “bodily autonomy” instead of “self-defense” but the legal landscape has changed.
“Self-defense” is the same as bodily autonomy in practical terms. If we can’t defend ourselves from harm, what autonomy do we have?
Even if you think the fetus is “alive” and a “person,” self-defense clearly justifies using deadly violence. An unwanted “person” in your body that is an imminent threat of harm justifies self-defense.
Use every tool
The Supreme Court rightwing supermajority struck down Roe because it was not “deeply rooted” in history. But, as Anita Bernstein has argued, abortion protections date back to common law in the form of self-defense. We must embrace this strategy, because we need every tool we can get to fight personhood and criminalization.
Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.