In Ruling to Ban Abortion Pills, Federal Judge Claims ‘Fetus’ Is an Unscientific Term

The right-wing, devoutly Christian, Trump-appointed judge wrote that he's just trying to be "inclusive" in referring to fetuses and embryos as "unborn humans."

In Ruling to Ban Abortion Pills, Federal Judge Claims ‘Fetus’ Is an Unscientific Term
Photo:AP, Getty Images

The Trump-appointed judge who ruled on Friday night to invalidate the FDA’s approval (23 years ago) of the highly safe, effective abortion pill mifepristone wants you to know he had “inclusivity” in mind when writing his decision.

Throughout the utterly bogus decision, in which he literally cites an 1873 law prohibiting the mailing of lewd materials, Texas District Court Judge Matthew Kacsmaryk refers to fetuses and embryos as “unborn humans,” conferring legal personhood upon embryos and fetuses. Of course, this language is a transparent play to equate abortion with murder. And hilariously, in his very first footnote, Kacsmaryk claimed he chose these words to be more scientific and “inclusive”:

Jurists often use the word “fetus” to inaccurately identify unborn humans in unscientific ways. The word “fetus” refers to a specific gestational stage of development, as opposed to the zygote, blastocyst, or embryo stages. … Because other jurists use the terms “unborn human” or “unborn child” interchangeably, and because both terms are inclusive of the multiple gestational stages relevant to the FDA Approval, uses “unborn human” or “unborn child” terminology throughout this Order, as appropriate.

I have to laugh. It is not that difficult to write “fetus or embryo” instead of “unborn human” when you’re trying to be scientific and inclusive. It should go without saying that someone who would ban a medication that’s helped people safely end a pregnancy or miscarriage with FDA approval for the last 23 years isn’t interested in either. Kacsmaryk—who likely shared his ruling on Good Friday as an overt signal to his Evangelical pals—knows exactly what he’s doing by using this loaded, anti-abortion activist language.

Kacsmaryk was extremely overt in his support for fetal personhood in his decision, arguing that the FDA’s approval of mifepristone resulting in “individual injustice” and “irreparable injury” to “unborn humans” deserves consideration, as well as whether it harmed “the unborn humans extinguished by mifepristone.”

Fetal personhood is the anti-abortion movement’s endgame. In characterizing an embryo is a “baby” or “unborn human,” it effectively “[normalizes] the idea that a pregnant person is not their own person anymore, that they’re subservient to the rights, individuality, and full personhood of a fetus,” Dana Sussman, acting executive director of Pregnancy Justice, told Jezebel last year. When the state legally recognizes fetuses as children, all pregnancies necessitate state surveillance, all pregnancy outcomes are treated as potential crime scenes, and people experiencing life-threatening pregnancy complications are denied essential care. We’ve already seen at least one case of a woman being jailed for using substances simply because police suspected she was pregnant. (As it turned out, she wasn’t.)

The rabidly anti-abortion group Susan B. Anthony List issued a statement praising Kacsmaryk’s Friday ruling as reaffirming “that pregnancy is not an illness and abortion is not health care.”

To be clear, no one was characterizing pregnancy as an illness, and abortion is, nonetheless, still healthcare. The Christofascist conservatives celebrating this decision simply don’t give a shit about the lives or rights of pregnant people.

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