Unjust Laws, Civil Disobedience & Reproductive Freedom

A guest sermon by Dr. Carrie N. Baker, J.D., Ph.D; lawyer, Smith College professor, and regular contributor to Ms. Magazine.

On January 22, 1973—51 years ago tomorrow—the U.S. Supreme Court decided Roe v. Wade, which recognized that the constitutional right to liberty included the right to make reproductive decisions without government interference. On June 22, 2022, the current Supreme Court overturned Roe v. Wade, opening the door to state abortion bans across the country. Today, 14 states fully ban abortion at fertilization—even before a pregnancy commences. In addition, two states ban abortion at 6 weeks, another two at 12 weeks, and three more at 15-18 weeks. Courts have blocked bans in another three states.

Over the last several years, in response to abortion bans and restrictions, advocates around the country have developed an alternative supply network for abortion pills outside of the law. In my writing for Ms. magazine, I have covered this movement closely, and even participated in it to some degree. As a lawyer and generally law-abiding citizen, my participation in this extra-legal work is not done lightly. Today I want to offer a moral justification for my decision to do this.

The reading for today is Martin Luther King Jr.‘s Letter From Birmingham Jail, written in August of 1963. King was imprisoned for participating in nonviolent demonstrations against segregation. The letter, written in longhand, was his response to a public statement issued by eight southern white religious leaders expressing concern and caution about King’s willingness to engage in civil disobedience by breaking the law. The letter was King’s explanation of why he felt compelled to do so.

In the letter, King distinguishes between just laws and unjust laws. Citing St. Augustine, King explained, “An unjust law is no law at all.” In answering the question of how to distinguish just and unjust laws, King appeals to “moral law” and “eternal and natural law,” citing St. Thomas Aquinas. He argues that just laws “uplift human personality” and unjust laws “degrade human personality.” He argued that an unjust law “distorts the soul and damages the personality.” Quoting Martin Buber, he argues that an unjust law “substitutes an ‘I – it’ relationship for the “I – thou” relationship and ends up relegating persons to the status of things.”

What does it mean to uplift the human personality? What does it mean to distort the soul and treat people like things?

King was of course talking about Jim Crow laws that segregated people based on race. He was explaining how he could on the one hand insist that southern states follow the law established in the Supreme Court’s Brown v. Board of Education decision, while at the same time himself defy southern states’ segregation laws. He argued that the violence of racial segregation distorted the soul, degraded the human personality and treated Black people like things. Segregation laws were therefore morally wrong and sinful, argued King.

Today, I will use King’s arguments to analyze current-day abortion bans and argue that these laws are also morally wrong and sinful for similar reasons.

Many might find this argument surprising, unnecessary or even offensive. People on the left, including many feminists, have ceded the religious language of morality and sin to religious conservatives. I believe this is a mistake. We need to translate our ideas into all languages to succeed in the movement for human rights.

So I ask you, do abortion bans uplift or degrade human personality? Do they “distort the soul and damage the human personality”? Do they give people supporting them “a false sense of superiority” and make people seeking abortion feel “a false sense of inferiority”? Do they “substitute an ‘I -it’ relationship for the ‘I -thou’ relationship, and relegate persons to the status of things”?

I would answer an emphatic YES to all of these questions. Let me explain. Headlines over the last year and a half since the Supreme Court overturned Roe v. Wade gives us ample evidence of how abortion bans harm the dignity, rights and health of women and people who can become pregnant.

Shortly after Dobbs in June 2022, a 10-year-old pregnant rape victim had to flee the state of Ohio, where abortion had been banned, to obtain an abortion in Indiana.

At the end of last year, a 31-year-old Dallas mother of two, Kate Cox, received a lethal fetal diagnosis. Her doctor told her that she needed an abortion in order to preserve her health and future fertility, but that the Texas abortion ban only allowed abortions if death was imminent. Cox filed a lawsuit asking a Texas court for clarification on whether she qualified under the law. A trial court granted her request, but attorney general Ken Paxton appealed the case all the way to the Texas Supreme Court. Cox eventually fled the state of Texas to obtain an abortion. The Texas Supreme Court later ruled she did not qualify to receive an abortion under the law.

Another 22 women who had life-threatening pregnancies have sued the state of Texas for clarification on what the law allows—how close to death they have to be to have an abortion—because the state has refused to clearly define the parameters of the exceptions to the law, making doctors fear offering abortions at all.

Last month, a 33-year-old Ohio woman Brittany Watts sought treatment at a hospital before suffering a miscarriage. While in excruciating pain, she had to wait for eight hours while a hospital ethics committee considered her case. They denied her care and sent her home instead of treating her. She later delivered a nonviable fetus at home, alone, in her bathroom, and then returned to the hospital where she was treated with suspicion rather than compassion. The hospital reported her to the police and Ohio prosecutors charged her with abuse of a corpse because she miscarried into her toilet. A grand jury later dismissed the charge.

Prosecutors are increasingly bringing criminal charges against pregnant women who struggle with drug addiction or who engage in behaviors that otherwise would not be a crime, such as failing to go to a doctor, refusing to follow a doctor’s orders, or driving without a seatbelt. In a recent report, titled The Rise of Pregnancy Criminalization, the organization Pregnancy Justice documents how government officials are investigating, arresting, and prosecuting pregnant women at an accelerating pace in recent years, often under the pretext of protecting “unborn life.” Whereas a 2013 study found 413 cases of pregnancy-related criminalization across the United States between 1973 and 2005, the recent study found 1,396 cases of criminalization of pregnant women between 2006 and 2022 — over three times as many cases in half as many years. The vast majority of cases involved charges of criminal child neglect, abuse, and/or endangerment, and many relied on the cooperation of health care providers and family regulation systems, such as “child welfare” agencies.

Finally, these laws will lead to women’s deaths. The first woman to die because she was not offered a life-saving abortion due to an abortion ban was Yeniifer Alvarez-Estrada Glick. She died in July of 2022 in Luling, Texas.

Abortion bans have led to denial of medically necessary healthcare, putting people’s lives in danger, and they have led to threats of criminal prosecution. These laws enable healthcare providers, police and the public to bully and control women and pregnant people. These actions degrade and damage the human personality, and distort the soul, to use King’s words. I would argue these laws give some people “a false sense of superiority” and make people seeking abortion experience “a false sense of inferiority” that we call abortion stigma. I would argue these laws “substitute an ‘I -it’ relationship for the ‘I -thou’ relationship and relegate persons to the status of things,” whose lives are not valued, whose dignity is not respected, and whose rights are disregarded.

King was committed to the equal worth of each individual, which he defined as treating human beings as ends in themselves, and never instrumentalizing them as a means or objectifying them as things. Abortion bans treat pregnant people as a means to the end of producing more babies, and they objectify women as things, as incubators. King was committed to treat each person as a free agent—someone with the capacity and right to “deliberate, decide, and respond.” To do otherwise is to objectify and debase what it means to be fully human.

Laws banning abortion objectify women and pregnant people, denying them the right to make moral decisions for themselves. Therefore, these laws are unjust, immoral and sinful, to use King’s words. King described racial domination as a “particular form of evil or sin.” I argue that sexual domination is also a form of evil or sin. Abortion bans make women and pregnant people second class citizens, denying them the right to be free agents, moral decisionmakers and democratic subjects. King condemns “sinful racial hierarchies.” Abortion bans are part of sinful sexual hierarchies.

Finally, in the passage we read today, King argued that an unjust law is “a code inflicted upon a minority which that minority had no part in enacting or creating because it did not have the unhampered right to vote.” At the time, the southern legislatures that adopted laws segregating Black and white people were clearly not democratically elected. Black Americans did not have “the unhampered right to vote.” They were not equally or even proportionally represented in the legislative bodies of the southern states where racial segregation was enacted into law.

Today, how is it that over 60 percent of Americans support abortion rights, but Roe was overturned and 16 states now ban abortion in most circumstances? When Supreme Court justice Antonin Scalia died in February 2016 over six months before the next presidential election, Senate majority leader Mitch McConnell refused to hold a vote on President Obama’s nomination of Merritt Garland for a seat on the Supreme Court, saying it was too close to the election. When Ruth Bader Ginsberg died in October of 2020, McConnell rushed through the appointment of Amy Coney Barrett just weeks before the 2020 elections. A president whose vote count fell millions of votes short of his opponent appointed three Supreme Court justices, who joined the extreme right wing of the Court to overturn a half-century-old constitutional right supported by a large majority of Americans. Then politicians in states with high levels of gerrymandering and voter suppression banned abortion, contrary to the wishes of the majority of voters in those states.

In states banning abortion, women’s political representation is remarkably low.

  • Men make up 80 percent or more of the state legislatures in West Virginia, Mississippi, Tennessee, Alabama and Oklahoma—all states that ban abortion at fertilization without exceptions for rape or incest. In South Carolina, which has a 6 week ban, women are also less than 20 percent of the legislature.
  • In West Virginia, women are only 12.7 percent of legislators.
  • In all states banning abortion, men make up over two-thirds of legislators.

The U.S. lags behind 68 other countries in women’s political representation in national legislatures, with American women holding only 29 percent of seats in Congress. At the state level, women overall hold only 32.6 percent of state legislative seats. In the courts, women make up only one third of federal judges and state court judges.

Women’s lack of representation in the legislatures and courts making decisions about our bodies make these laws unjust.

For the reasons stated above and more, I believe that abortion bans are unjust. King distinguished between just and unjust laws in order to explain why he was morally obligated to break laws requiring segregation. I believe the fact that abortion bans are unjust provides a moral justification for breaking laws banning abortion.

Today, there is a robust alternative delivery system providing abortion pills to people in all 50 states, including those banning or restricting abortion. This system, which operates outside of the medical system, provides abortion pills from in two ways: 1) vetted online vendors who sell generic abortion pills for as little as $42 with 3-day shipping; and 2) activist networks that mail free generic abortion pills to people in restricted states who can’t afford other options. People in all fifty states can also get advance provision abortion pills from online vendor for $25 with three-week delivery. Several organizations and resources exist to support people seeking and using abortion pills. For information on providers who mail pills to all states, there is plancpills.org. For medical support, there is the M+A Hotline. For peer support, there is Reprocare.com. For free, confidential legal services, there is the Repro Legal Helpline. This robust alternative delivery system has served tens of thousands of people in the U.S. in the last year and a half.

I am morally compelled to support this work as a form civil disobedience in defiance of unjust laws imposed by undemocratically elected politicians and judges, and unrepresentative legislatures that degrade and endanger women and pregnant people.

I also support the work of advocates who have pushed the boundaries of the law with telemedicine abortion provider shield laws, passed in six states, so U.S.-based health-care providers can offer FDA-approved abortion pills to people in all 50 states, including those with bans.

I do these things because I believe that we cannot become habituated to the injustice of abortion bans. Martin Luther King described civil disobedience as a rejection of the habituated acquiescence to the injustice of segregation. Civil disobedience creatively enacted new habits and new relations required for a functioning multiracial democracy. According to King, nonviolence direct action enabled a recovery of agency by the oppressed. It buried the “psychology of servitude.” King said “we can make ourselves free” not only by fighting for freedom and dignity, but by enacting that freedom and dignity directly.

Fighting for better laws and challenging bad laws in the courts are critical parts of the fight for the freedom and dignity of women and pregnant people, but so is the underground abortion pill movement, which enacts that freedom and dignity directly, and resists the “psychology of servitude” and “habitual acquiescence” to unjust laws.

I hope you will join me in enacting that freedom and dignity by sharing information about these alternative abortion pill delivery networks in the United States. All you need to remember is www.plancpills.org.

Thank you.

To view this sermon on video, click below.

Photo by Tingey Injury Law Firm on Unsplash