The Insidious Legal Theory Behind the Abortion Rights Rollback

After the Supreme Court handed down its decision in Dobbs, I was part of a legal team that challenged Ohio’s ban on abortion in court. A few months later, we had an initial victory: The restriction was preliminarily enjoined, and Ohio voters subsequently approved an amendment to the state constitution protecting reproductive rights via referendum.

Two things about the experience have stuck with me. First, the tension in the courtroom—one provider testified wearing a bulletproof vest, while an anti-abortion protester sat behind me, holding a model of a fetus in her hand throughout the proceedings. Second, no one was talking about the legal mechanism that actually underlay the entire debate: coverture.

Coverture is an arcane but newly relevant legal idea that goes all the way back to the 1700s: the notion that a woman’s legal identity vanishes whenever it finds itself in close proximity to something deemed to be a superior interest. In the 1700s, that interest was the husband. Today, it’s the fetus.

Currently, those in favor of legislative restrictions on abortion usually justify them on two bases. The first is that restrictions exist to protect the health of the pregnant person. Sometimes this justification focuses on the medical safety of the procedure (“Abortion is dangerous”), and sometimes on the mental health of the pregnant person (“People regret getting abortions”). In either case, this justification has proven relatively easy to debunk, since there is extensive evidence demonstrating that abortion is not only safe and common, but that people who are denied abortions experience worse physical and mental health outcomes.

The second, stickier justification is that the state can restrict abortion because the state has an interest in protecting the embryo or fetus. (For ease of reading, I will be primarily using the term “fetus,” but it is worth noting that “fetus” refers to a specific stage of development beginning around the eleventh week of pregnancy. Many legislative restrictions prohibit abortion earlier than that, while the pregnant person is still carrying an “embryo.”)

The idea that the state has this prevailing interest gets articulated in a variety of ways: from Roe’s more objective-sounding “interest in protecting the potentiality of human life” to the more emotional insistence on using terms like “unborn human being” rather than clinical descriptors for fetal development—as in the Mississippi Gestational Age Act (the legislation that was at issue in Dobbs). This justification is closer to what most people think of as the “real” reason motivating abortion restrictions: Namely, people oppose abortion because they want to protect the fetus.

This justification is much harder to engage with. This is in large part because any attempt to challenge it requires adopting its language of “unborn babies” and “protecting human life,” which in turn means accepting its value-laden presumptions—that is to say, that life begins at conception; that the state can and should control the body of a pregnant person—at which point the argument is already decided. (This was precisely one of the battlegrounds in the Ohio constitutional referendum on reproductive rights: the use of the term “unborn child” in the summary of the constitutional amendment on the ballot.) In short, it is an emotional rather than a scientific argument, meaning that there is no obvious scientific framework that can be used to debunk it.

But there is a legal framework—it’s just an arcane one. It’s called coverture.

Under coverture, when a woman married, she ceased to have an independent legal identity and was instead “covered” by the legal identity of her husband. The eighteenth-century legal scholar William Blackstone described the concept in 1765: “By marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband ... and her condition during her marriage is called her coverture.” If this still feels a little abstract, here is a contemporary description from several political and historical scholars to put it in perspective: “Like children, servants, and slaves, a woman’s identity was inseparable from that of a male property owner. She could not sue, be sued, buy or sell property, or engage in the public sphere.… [A] woman’s body was not her own.”

Sound familiar?

The legal maneuver performed by coverture—the subsuming of a woman’s identity into a nearby and supposedly superior interest—precisely describes what happens in legislation that is advanced on the basis of the state’s interest in protecting potential life. In other words: When the state recognizes the legal interest of the fetus but not that of the pregnant person, it is subsuming the identity of the pregnant person into that of her fetus. From a legal standpoint, when a person becomes pregnant, she simply stops existing. The only thing that exists is her fetus.

We can see this conspicuous absence all over the current panoply of abortion restrictions. This is particularly the case in the definitions embedded in the legislation, which often feature elaborate wordings that foreground the legal identity of the fetus and de-emphasize that of the pregnant person. For instance, the provision of the Georgia Code that defines classes of persons currently defines “unborn human child” to mean “a member of the species Homo sapiens at any stage of development who is carried in the womb”—but never references the person whose body contains that womb.

Meanwhile, the Kentucky prohibition on abortion manages to define the term “pregnant” without ever referring to a woman as a self-sufficient and independent entity: “‘Pregnant’ means the human female reproductive condition of having a living unborn human being within her body throughout the entire embryonic and fetal stages of the unborn child from fertilization to full gestation and childbirth.” The naming of the legislation often follows along similar lines—the relevant portion of Oklahoma’s public health code, for instance, states that “This act shall be known and may be cited as the ‘Pain-Capable Unborn Child Protection Act.’” These laws all share the defining feature of coverture: the erasure of the woman’s identity in the presence of a “superior” legal interest. The only thing that has changed is the identity of that superior interest.

Legislative restrictions on abortion replicate another key structure of coverture: targeting those who help others get abortions, rather than the person actually getting the abortion. This was a defining feature of coverture—since under coverture, women had no independent legal identity to be targeted. For instance, in a 1900 criminal case in West Virginia, the state Supreme Court affirmed the conviction of a man “for producing an abortion on” the pregnant woman, with the court stating he “was certainly the instigator, the promotor, and prime mover thereof…. This girl, as shown by her own testimony, was as completely under his control as though under lawful coverture.”

This is strikingly similar to the penalization schemes active in numerous states today, which often provide specific criminal and civil penalties for those helping others to get abortions—but expressly exempt pregnant women themselves from this liability. Two examples of this are the Texas Health and Safety Code Chapter 170A (“This chapter may not be construed to authorize the imposition of criminal, civil, or administrative liability or penalties on a pregnant female on whom an abortion is performed, induced, or attempted”) and the Oklahoma Public Health Code (“No penalty may be assessed against the woman upon whom the abortion is performed or induced or attempted to be performed or induced”). As under coverture, the independent legal identity of the pregnant woman is virtually nonexistent.

What is so insidious and effective about repurposing the mechanisms underlying coverture in this new context is that it sanitizes coverture’s now-obvious sexism by replacing the idea of the husband with the idea of the child. Nowadays, a law that expressly privileged men over women would have a hard time surviving public scrutiny. But a law that expressly privileges the idea of children over women is another matter entirely. Because even today, we tend to view pregnant women as mothers first and anything else second, and women who attempt to fight against this framing are often vilified as cruel or uncaring, or simply bad mothers. In short, we already have a cultural apparatus that primes us to minimize a woman’s identity in proximity to pregnancy or children.

This is why substituting the identity of the fetus for that of the husband is such a compelling reframing of coverture. It takes an obviously retrograde legal fiction—that a woman does not have a stable, independent legal identity—and retrofits it with a more current sense of morality in order to render it palatable. Now, instead of losing her legal identity to her husband, a woman loses her legal identity to her fetus. The pregnant person simply vanishes.

It makes me think again of the protester in the Ohio courtroom, the one holding up a model of a fetus. As an act of protest, it was ostentatious, and a little absurd—and tempting to disregard for that reason. But it was also effective, because what that protester was doing was finding a way to bring the framing that undergirded her argument—namely, the idea that a fetus is a person—into the courtroom.

Coverture offers a way to do the same thing with respect to the state’s purported interest in protecting potential life. It helps to articulate, in concrete legal terms, how legislation advanced under that justification replicates the structure of a legal scheme that has long been held to violate the fundamental rights of an entire class of people. Take another look at Blackstone’s 1775 definition of coverture, but this time replace “marriage” with “pregnancy” and “husband” with “fetus”—the result is uncannily similar to the language used in abortion restrictions being enacted more than 250 years later. It is coverture with a new coat on, and it highlights the curious lack of consideration within pregnancy-focused regulation for the person actually being regulated: namely, the one who is pregnant.