As the new millennium dawns, you go to law school. You don’t want to study law. You want to study comparative feminist literature, but a professor convinces you there is no future in it. You decide you’ll read the law as if it were literature; you’ll look for the ways in which narratives are constructed, for the spaces where language can mean acknowledgment or erasure. You know something about erasure. Last year you sat in a courtroom across from the teenager who had assaulted you in the subway. You listened as his lawyer wielded your words against you. You and the teenager who had assaulted you both walked out of the courtroom, ostensibly free. You wonder if law school can help you make sense of this. You want your words back.
Surprising no one except you, law school turns out to be a poor substitute for comparative feminist literature. You look for women in your textbooks, but the pages are filled instead with someone called the “reasonable person,” which really means the reasonable man, which really means the reasonable white man. In court you did not get to be the reasonable person. The reasonable person would not have gone into the subway if he felt afraid. You know he would not have felt afraid.
You keep waiting to see yourself in what you are studying. And then, at last, you come to Roe. When your professor talks about Roe, he is reasonable. This is not about feelings, he says. This is about precedent. The historical context he gives is not that of the practice of abortion in the United States, but of Roe’s legal lineage: There is Griswold v. Connecticut and its protection of a married couple’s use of contraceptives (when you are in law school—just as it was in 1965—marriage only legally exists between a man and a woman). And then Eisenstadt v. Baird, which extended Griswold’s protections to unmarried people. Roe is their progeny. You knew of Griswold before law school, but Eisenstadt is new to you. You feel an overwhelming rush of gratitude toward this case. Eisenstadt is what has allowed you to lead the life you do; Roe is the fail-safe, to be deployed if the privilege and the luck that have gotten you this far run out.
While Eisenstadt has done its work in your life with a quiet steadiness, it is Roe that has always demanded your attention, since it is Roe that has been under attack for as long as you can remember. It was for Roe that you stood outside a Planned Parenthood clinic, arms linked with older women, while protestors called you baby murderers. You weren’t on birth control, weren’t having sex, weren’t ready to make any kind of choice except the one to put your body between the bullies on the pavement and the women inside. When you were sixteen, you attended a rally for Roe. A photographer captured you midchant, and the picture ran in the paper the following morning. Your father said it showed you as you were: a “big mouth.”
Law school teaches you about Roe’s tripartite structure, its limitations on freedom from trimester to trimester. The court grounds Roe in the right to privacy, in the “penumbra” set out in Griswold. “Penumbra” is not a legal term; it is borrowed from astronomy. During an eclipse a celestial body casts a shadow. The penumbra is the partially covered area between the darkness and the light; it is a shape-shifter, with no fixed boundaries. A penumbral right is one that does not specifically appear within the Constitution but is derived from the shadow of another enumerated right.
You cannot locate women in the abstract poetics of astronomy. You find them in Ruth Bader Ginsberg’s critique of Roe’s nebulous privacy ruling: The court should have held that abortion rights are guaranteed by the Equal Protection Clause of the Fourteenth Amendment, since the burdens of pregnancy and birth are borne so unequally. Such a ruling would be shorthand for the freedom to exist fully in a body that can get pregnant. Its basis would be located expressly within the body of the Constitution itself. But for decades the court has held stubbornly to the penumbra. You worry about this. If the court finds a right in a space that does not explicitly exist, it makes it easier for the right to be pushed back into the shadows.
You begin to see your life as a series of data points, anchored by rights that have emerged thanks to that slow-bending moral arc of the universe. You had thought that what happened in your bed happened because of desire, consent, logistics. But now there is the specter of the law there as well, a silent presence in your choice of a lover of the same gender or a different race, even in your ability to buy condoms at the bodega across the street. You feel the grant of the law’s power, but also its limits. Because what you are doing may be legal, but that doesn’t make your body—and especially, sometimes, your partner’s body—any safer. You know that a body moving through space, celestial or otherwise, can be made to disappear.
At night you sleep beside one of your classmates, a man who is somehow both confident and kind. While he snores, you dream about the teenager in the subway. You will dream about him for years. You could have died in the subway when the teenager pushed you down a long flight of stairs so that he could make his getaway. You don’t dream about that, or about the assault itself, the insistence of his body, the yellowing tile of the subway walls under your palms. You dream only about the moment you know he is going to grab you, the moment when your body is lost to you.
A few months before you are to graduate, you miss your period. You do not know if you are pregnant. The confident and kind man with whom you joyfully use your Eisenstadt-sanctioned contraceptives, the man who will become your husband, tells you it’s your choice. Which you know, and it’s no choice at all. You will finish law school, you will clerk for the Ninth Circuit, you will look for a way to write women into the spaces the law never meant for them to occupy. There is no child in this narrative. So you go to the Planned Parenthood near the train station in Menlo Park to get a free pregnancy test. There is a lone man—middle-aged, white, stringy but not weak—standing in front of the clinic in his army jacket with a sign. You do not make eye contact. Inside they run an “adopt a protester” fundraiser, where the patients sponsor this man by the minute, so the longer he stands outside, the more money is earned to support the work that goes on inside. You grin at the receptionist and give what you can, sliding your pledge to her through the narrow opening in the bulletproof glass.
You are not pregnant. You go home, you graduate from law school, you clerk for the Ninth Circuit, you marry the man who said it was your choice. The two of you march together in the Pride parade when your city legalizes marriage for all. The world spins forward. And your life has the chance to unfurl itself just as it would have if the nurse had come back with different news that day, if you had needed an abortion and made another long walk past the man in the army jacket.
Now that you are a lawyer, you see all the ways in which law school has failed you. In law school they did not teach you that abortion was not illegal in the early history of the United States. You learn later that enslavers prohibited abortion—even as it was legal in the rest of the country—because they viewed abortion as the destruction of their most valuable economic asset: the continued production of enslaved bodies. That the newly formed American Medical Association championed antiabortion laws in the second half of the nineteenth century to combat the declining birth rates among white women at a time when a swell of immigrants was entering the United States. That laws prohibiting abortion came about as white men who wanted to become doctors feared the presence of midwives, half of whom were Black, as an affront to their livelihood. This makes sense to you. Because when you read the law like it was literature and looked for the subtext, you learned that wherever there’s a free Black woman, there’s a law doing its best to take that freedom from her.
Nowhere was the push to ban abortion about fetal personhood. Nowhere is there a legal right to be born. The history of abortion law is about regulating and controlling the bodies of people who are already alive. Contrary to what the professor told you, the history of abortion law is entirely a story about feelings—power and fear and hatred—as written by the people whose feelings have always driven the narrative, who crafted a constitution that valued an enslaved Black person as three-fifths of a human, and who have been deciding who gets to be fully human ever since. This is the precedent they should have taught you. This is the genetic material that matters most.
One morning in the life you get to go on leading, you realize you have again missed your period. You take a test. There are two lines. Dazed with joy, you press the stick into the hand of your husband, with whom you have traded in your Eisenstadt-sanctioned contraceptives for basal thermometers and mucus measuring. He knows exactly what has happened.
You knew abortion was never about viability, and now you know that pregnancy isn’t about it either. Your baby is alive to you as soon as that second line appears. You have an ultrasound far too early—only six weeks along, before it is even possible to have a fetal heartbeat. Even so, you go home and make small talk with a being with no brain and no heart and no ears. Wanting for this to be your baby does not make your baby alive in any legal sense. All of those years ago, in the Planned Parenthood near the train station, you could not conceive of an existence that included her. Now you cannot conceive of an existence that does not. This time the feelings that matter are yours. At six weeks your fertilized egg is exactly as alive—or not alive—as another would have been had you turned out to be pregnant in law school. What has changed for you, what has changed everything, is what you want.
In 2008 your daughter is born. You wear her against your chest as you vote for Barack Obama. He puts two more women on the Supreme Court. It feels like a better time to be a lawyer, and somehow being a mother has deepened your view of the work.
You still dream about the teenager in the subway. It doesn’t look like him anymore—the man in the dream is older, skinnier, in an army jacket and not a puffer coat—but you know it is him, and you know what he wants. Each time you urge your dream self to move, but you are always paralyzed. There is a scream that cannot get out; your mouth doesn’t work; you taste the metallic tang of bile, of blood. Until one night he comes at you, and your mouth opens, and vomit pours out, dousing him. And then the nightmares stop.
There are the same three women on the court when your son is born in 2012, just after Obama wins another term. When you tell your doctor you are done having children, he suggests an IUD, which is much safer than pills because of your migraines. Your insurance may not cover it, he warns, and it’s $1,000 out of pocket, maybe more. He tells you of a patient who booked a $400 flight to Amsterdam and picked up an IUD for something like six bucks in a pharmacy. You could go that route, he suggests; Amsterdam is lovely in the spring. Your old friend Eisenstadt is of no use in this situation. You can legally get an IUD, but the cost is so astronomical that the right to get it doesn’t matter. This is not unlike what it means to be pregnant and wanting an abortion in the 85 percent of US counties that don’t have a clinic. It is the difference between having a metro card and being able to get safely onto the train. Which is to say, it is the whole world.
And then, in 2018, a president who has pledged to overturn Roe gets his chance to appoint a new Supreme Court justice. The nominee is a man accused of having sexually assaulted a girl when he was a teenager. You and a friend who was raped in college watch the confirmation hearings together. You hold each other’s hands while a woman recounts the trauma of her assault with authority and quiet specificity, recalling the sounds of laughter “indelible in the hippocampus.” You and your friend take turns crying, and you watch a future Supreme Court justice throw a tantrum, clutching a calendar like a get-out-of-jail-free card and proclaiming his love of beer. None of the words will matter. You’ve seen this before. You know who will be seen as the reasonable person.
Someone on television compares waiting for the death of abortion rights to waiting for the sword of Damocles to fall, but for you it is like being stalked: The teenager, hanging out on the street, waiting for a woman to go into the subway alone. They wait, they wait, and then, their prey in sight, they pounce.
Your panic returns after the hearings start, but now it creeps up on you during the day. You do not relive the attack itself but the scene in the courtroom when they replay your 911 call, right before the defense lawyer takes your words and calls you a liar. You hear the fear in your voice, the tremor; it cuts you open on the witness stand. You should have known that tearing down a woman is the price of freedom for a man.
The man handpicked to kill Roe is confirmed. It is fall of 2020. The election is close. The Jewish New Year is here. You are making matzo-ball soup for Rosh Hashanah when you learn Ruth Bader Ginsburg has died. You know Roe has died with her.
You are walking the dog on a warm spring evening in 2022 when your pocket buzzes. There is a leaked draft of Dobbs, the opinion that will gut Roe. You freeze; you are numb; you have again forgotten how to move your body through space. The dog tugs at the leash, pulling you, if not out of your stupor, at least to a place where you can safely be in it.
You read the draft as your daughter hovers nearby. It is so much worse than you could have imagined. You fear it is a death warrant on a massive scale. Already the maternal mortality rate for Black women is nearly three times higher than it is for white women. You know there’s only one way these numbers will go. And this court is not content to take Roe alone, but to lay a foundation to take so much with it: same-sex marriage, interracial marriage, contraception. If Roe was created in the liminal space of the penumbra, Dobbs is the total eclipse that makes all go dark.
Your daughter asks why you are not crying when you cry so easily, so often. You’re stunned, you say. You cannot tell her that you’re back in the subway again, with the teenage boy behind you, and your body knows there is no way to outrun what is about to happen. The bile is up in your throat. You open your mouth, your big mouth. And you scream.
