Katie Howard, On the Right to Abortion and “the Right to Have Rights” (Conference: The Right to Have Rights Today) [2022 C4eJ 37]

Arendt’s analysis of human rights points to a theory of action that locates power and freedom in people, not governments, and thus offers a powerful balm for despair about the future of reproductive justice

[➡︎ read the rest of the symposium | watch the conference video]

Katie Howard*

The full impact of the U.S. Supreme Court’s controversial decision in Dobbs v. Jackson Women’s Health Organization[i] will surely be felt in uneven and complex ways across the United States, but as Rebecca Traister argues, it will affect everyone who comes into contact with pregnancy regardless of where they live or their social and economic status.[ii] The decision, which overturns over fifty years of legal precedent guaranteeing abortion as a constitutional right (in Roe v. Wade, 1973), effectively opines that when it comes to reproduction, bodily autonomy is not a fundamental right, but a conditional one—dependent on the misogynist whims of an increasingly undemocratic political process.

As Jia Tolentino wrote for The New Yorker, “[W]e’re not going back to a time before Roe, we’re going somewhere worse.”[iii] Arguably, though, we are going back to a time before Roe, just not the recent history of unsafe, illegal abortions in the pre-Roe US. While repressive policies and obstacles have limited abortion access for decades, especially for poor and working-class women of color in conservative-led states, Dobbs signals the dawning of a legal regime that calls to mind Silvia Federici’s portrait of 17th century Europe: a time when women were jailed for suffering miscarriage and burned as witches for undergoing or aiding a rumored abortion. The not-so-hidden logic of these punitive laws, as Federici explained, was an emerging capitalist logic that reduced women to procreation machines for the reproduction of the poor, laboring classes.[iv] Since the (sole) social value of women was, on this understanding, tied to their procreative potential, women’s control over the procreative process was repressed and criminalized by the state. This same logic is reflected in the Dobbs decision, which demonstrated excessive concern for the potential life of the fetus, hardly mentioning the health or futures of those who would be made to endure forced pregnancy. Given that the US Supreme Court has upheld rights to privacy and bodily autonomy in recent decisions concerning the constitutionality of vaccine mandates and concealed carry laws, it seems that the changing landscape post-Dobbs is not so much one of fewer basic rights but of a shift in who counts as a rights-bearing subject, i.e., who may enjoy basic rights and who will suffer for them. Progressive commentators took to Twitter and Instagram to sum up: U.S. citizens woke up on June 24, 2022 with fewer basic rights than they had the day before. Meanwhile, embryos and fetuses suddenly gained rights they did not previously have.

It is not a mere coincidence that laws restricting/criminalizing abortion and laws restricting/criminalizing the very existence of trans people are simultaneously gaining new traction, along with an increasingly conservative discourse on sexuality and what it is for. The exploitation and control of reproduction relies on the enforcement of a broader sex-gender system that violently reduces gender to a binary (and specious) conception of biological difference and constrains sexuality to the domain of procreation, and thus to heterosexuality.  Abortion rights advocates who exclude trans and gender non-conforming people from this conversation by proclaiming that abortion is a “women’s” issue share this unfortunate premise with abortion’s critics. They also fail to see the terrifying convergence of anti-abortion and anti-LGBTQ legislation, and what this convergence means.

Keeanga-Yamahtta Taylor has recently argued that while abortion has been treated as a privacy issue under U.S. law–and protected on that basis until very recently–“abortion is about freedom, not just privacy.”[v] What Taylor means is that by denying a constitutional right to abortion, the US Supreme Court has not only “consigned [people with uteruses] to a distinctly secondary tier of citizenship,” they have abrogated a fundamental freedom, and with it, something fundamental about what it means to be human. In other words, as Taylor writes, “abortion is a human right.”

But what does it mean to classify abortion as a human right? Hannah Arendt made several contributions to theorizing the history and philosophical status of rights. In The Origins of Totalitarianism (1951), she described the political-ideological process by which millions of Jewish people and other minorities were stripped of their rights as citizens in the interwar period and, subsequently, of their very status as human beings with a right to life in the Holocaust. Arendt, herself a German Jewish refugee violently uprooted by this process, argued that the unprecedented political and historical conditions driven by totalitarianism in twentieth century Europe fundamentally called into question the nature of human rights. She saw that human rights were not universal, ahistorical, or inalienable—as many thinkers continue to imagine—but intimately tied up with the rights of citizens and the problem of enforceability. Marginalized and minoritized peoples vulnerable to exclusion from the nation are liable to lose every protection. An abstract claim to humanity needs a practical, concrete guarantee, she insisted. By invoking Arendt here, my intention is not to invite a comparison between the history of totalitarianism in Europe and our current social-political landscape, but to raise some of the philosophical insights she developed for our consideration.

One question that Arendt’s analysis raises for us is the relationship between action and responsibility. In Origins, Arendt explores the political and philosophical meaning of statelessness within a global nation-state system, arguing that human rights which were thought to be inalienable are in fact highly conditional. “The fundamental deprivation of human rights,” Arendt writes,

is manifested first and above all in the deprivation of a place in the world which makes opinions significant and actions effective… This extremity, and nothing else, is the situation of people deprived of human rights. They are deprived, not of the right to freedom, but of the right to action; not of the right to think whatever they please, but of the right to opinion. Privileges in some cases, injustices in most, blessings and doom are meted out to them according to accident and without any relation whatsoever to what they do, did, or may do.[vi]

In this passage, Arendt arrives at a conception of human rights as distinct from citizens’ rights by analyzing the situation of stateless people who, by definition, lack citizenship. But what exactly does “the deprivation of a place in the world” involve? And what does the loss of opinion and action signify? As Arendt explains, law enforcement tends to involve punishment, which in turn tends to involve the deprivation of certain rights (e.g., liberty in the case of imprisonment) on the basis of what a person does (i.e., crime). A regime of punishment that has no connection to specific crimes is a regime that punishes people for who they unchangeably are, not what they do, and thus “disallows all common human responsibilities.”[vii] This kind of regime deprives actions of their effectiveness and dissolves the connection between choice and destiny.

From an Arendtian perspective, I am suggesting that the shifting landscape of legal personhood sketched above involves the deprivation of freedom of action. More specifically, it is the detachment of punishment from action and thus the deprivation of responsibility. This is because the emerging landscape Dobbs reveals is not one that merely criminalizes abortion, but one that involves a broader criminalization of pregnancy. In other words, we are witnessing the wholesale punishment of pregnant people not for what they do but for what they are.[viii] Indeed, as Taylor writes, “[W]omen should have the right to control their reproduction, not only because of the potential emotional or financial hardship but because it is a precondition to their full and free participation in our society. If women cannot dictate this most basic aspect of their being, then the Supreme Court has effectively consigned them to a distinctly secondary tier of citizenship.” Taylor continues, “[T]he right to abortion is an affirmation that women and girls have the right to control their own destiny. Without the ability to control when, where, how, and if one chooses to become pregnant or give birth, no other freedom can be achieved.”

If Taylor is right about the relationship between reproductive choice and freedom, then the current situation is bleak indeed. Arendt offers some hope. From within a situation of rightlessness, Arendt suggests, “We become aware of the existence of a right to have rights (and that means to live in a framework where one is judged by one’s actions and opinions) and a right to belong to some kind of organized community.”[ix] I have argued elsewhere[x] that the right to have rights is best understood as a theory of action rooted in a principle of political belonging. For Arendt, action is not so much a capacity as a potentiality, one that we may exercise whenever we have access to a place in the world with others. Thus, belonging is itself a political project that results in politics. And our relations with others in their plurality constitute the primary resource for our political capacities, a minimal resource born out from our shared condition of interdependency. As long as one occupies a place within a community with others, they retain, at the very least, the “possibility of fighting for freedom.” For this reason, Arendt considered the situation of stateless people extreme: they are deprived, not of specific rights, but of “a community willing and able to guarantee any rights whatsoever.” “Man, it turns out, can lose all so-called Rights of Man without losing his essential quality as man, his human dignity. Only the loss of a polity itself expels him from humanity.”[xi] The right to have rights thus marks a distinction between rights that are granted—and can therefore be retracted—and those that are claimed and enacted in concert with others. In our current political landscape, the right to have rights is the philosophical expression of “mourn but do not despair”—my own attempt to lend a concrete, affective sense to an abstract claim.

Arendt’s analysis of human rights points to a theory of action that locates power and freedom in people, not governments, and thus offers a powerful balm for despair about the future of reproductive justice. However, I want to end by suggesting that reproductive justice theories, experiences, and organizing also have important insights to offer Arendt studies. The question Taylor raises about the relationship between bodily autonomy and political freedom is one that Arendt’s work does not contain the resources for answering. Indeed, Arendt’s broader philosophical views clearly situate the embodied dimensions of everyday life, including gestation, in a private, biological realm of necessity opposed to the public, political domain of freedom. As Adriana Cavarero has shown, the status of “birth” in Arendt’s work is notably ambiguous given that the “fact of birth,” or natality, lies at the root of political action and is at the same time a biological process wedded to necessity. From an Arendtian perspective, birth is troublesome, then, because it both reveals and transgresses the sharp, normative distinction between freedom and necessity marking the domain of “the properly political.” Cavarero puts the problem this way: “Given that Arendt calls upon action, understood as a synonym for freedom and spontaneity, to redeem the human from the biological dimension that reduces the human to a mere ‘natural being,’ it is indeed a bit surprising that she should turn precisely to a natural phenomenon—birth—to constitute the foundation of action.”[xii] Beyond the issue of childbirth, feminist theorists have long noticed a general “antagonism to the presence of the body in politics”[xiii] at work in Arendt’s philosophy.[xiv]

My own view, following Cavarero, is that Arendt’s account of birth remains highly and perilously abstract. In order to maintain action as a practice of freedom, Arendt must disavow the concrete, embodied dimensions of childbirth, which she discounts as essentially un-free: a biological, and therefore unforgivably common and mundane, reminder of our subjectedness to material necessity. The distinction Arendt draws between the un-freedom of the body and the freedom of genuine political action points to at least two different kinds of activities, the former belonging to the private domain of the household, and the latter to the public, a space of appearance in which action unfolds. The fact of embodiment means that none of us is ever in the public realm all the time. But can the same be said about the private realm? As Bonnie Honig has shown, for some beings, the public/private is not a passage to and fro, but an impasse: for them, “their identity is their embodiment.”[xv] This applies to women who, under particular socio-historical conditions, are consigned to reproductive activities—activities that mirror the repetitive, cyclical nature of the biological life process. “Nothing, to be sure,” states Arendt, “is more private than the bodily functions of the life process, its fertility not excluded.”[xvi] This disavowal of the biological realm of necessity, as well as the activities and actors who maintain it, all but removes the body, sex, and sentiment as possible objects of thought, de-materializing “birth,” and at the same time removing it from the realm of either political or theoretical significance. The long history of movements for reproductive justice have argued the opposite, namely, that reproductive health and labor are at the center of political freedom.

Unlike the stateless, the erosion of women’s access to political community—the space and activity wherein they might act to guarantee their own rights—is not secured through expulsion, but containment within the private domain of the household. Forced pregnancy threatens freedom because it involves a deprivation of action and responsibility. And, as Taylor notes, “There is no equivalent medical condition imposed on men. This creates a disparity of experience and consequence in the law that is a perfect example of discrimination.”

* Dr. Howard is visiting assistant professor of philosophy at Southwestern University. Dr. Howard studied at Emory University (MA and PhD) and Vassar College (BA). Her work in political theory draws on a multidisciplinary background in philosophy, feminist studies, political science, affect studies, and Arabic language and culture studies.

[i] Dobbs v. Jackson Women’s Health Organization, 19 132 (US Supreme Court, 2022), https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf.

[ii] Rebecca Traister, “The Limits of Privilege: The new abortion regime is going to affect everyone,” The Cut, May 7, 2022, https://www.thecut.com/2022/05/roe-v-wade-limits-of-privilege.html.

[iii] Jia Tolentino, “We’re not going back to the time before Roe. We’re going somewhere worse,” The New Yorker, June 24, 2022, https://www.newyorker.com/magazine/2022/07/04/we-are-not-going-back-to-the-time-before-roe-we-are-going-somewhere-worse.

[iv] Silvia Federici, Caliban and the Witch (Brooklyn: Autonomedia, 2004), 184.

[v] Keeanga-Yamahtta Taylor, “Abortion is about freedom, not just privacy,” The New Yorker, July 6, 2022, https://www.newyorker.com/magazine/2022/07/04/we-are-not-going-back-to-the-time-before-roe-we-are-going-somewhere-worse.

[vi] Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt, 1951), 296.

[vii] Ibid., 300.

[viii] As Tolentino argues, we are entering an era of widespread, high-tech surveillance in which any pregnancy that does not end in a healthy birth may instead end in criminal charges—for the pregnant person, their doctors/providers, etc. regardless of any actual attempt to procure an abortion (i.e., in the case of miscarriage).

[ix] Ibid., 296-7.

[x] Katie Howard, “‘The Right to Have Rights’ 65 Years Later: Justice Beyond Humanitarianism, Politics Beyond Sovereignty,” Global Justice: Theory, Practice, Rhetoric 10, no. 1 (2017): 79-98.

[xi] Arendt, Origins, 297.

[xii] Adriana Cavarero, Inclinations: A Critique of Rectitude (Stanford: Stanford UP, 2016), 112.

[xiii] Bonnie Honig, Feminist Interpretations of Hannah Arendt (University Park: The Pennsylvania State University Press, 1995), 9.

[xiv] See Lisa Guenther, The Gift of the Other: Levinas and the Politics of Reproduction (Albany: SUNY Press, 2006), 40.

[xv] Bonnie Honig, “Toward an Agonistic Feminism: Hannah Arendt and the Politics of Identity,” in Feminists Theorize the Political, edited by Judith Butler and Joan W. Scott (New York: Routledge, 1992), 221.

[xvi] Hannah Arendt, The Human Condition (Chicago: The University of Chicago Press, 1998), 110.