This legal subject which is not one

This article explores the evolving rhetoric of the anti-abortion movement in the United States, examining its shift from religious to pseudo-scientific and rights-based arguments. The study critiques both anti-abortion and pro-choice movements for relying on a flawed, sexually neutral philosophical framework that fails to consider sexual difference. Jolissaint highlights the limitations of Roe v. Wade and subsequent legal battles. Drawing on Luce Irigaray’s philosophy, which emphasizes the importance of sexual difference and criticizes the liberal feminist pursuit of equality, the article proposes a new approach to thinking about abortion rights and reproductive justice. This approach, informed by Irigaray’s concept of ‘sexuate rights’ and the reproductive justice framework, as developed by Loretta Ross and Rebecca Todd Peters, challenges the masculine-neutral legal subject and advocates for a broader understanding of rights that contemplates generation and sexual difference. The study traces the historical regulation of abortion in the United States, noting how early Christian and legal perspectives on abortion were more permissive until the quickening. It discusses the role of eugenics and patriarchal ideology in shaping restrictive abortion laws, and the professional and racial motivations behind these laws. Jolissaint also examines how modern anti-abortion legislation, such as heartbeat bills, continues to co-opt civil rights language to restrict abortion access. The article concludes by advocating for a legal and ethical framework that incorporates the reproductive justice framework and Irigaray’s philosophy, concluding that the question of how/when/whether a pregnant woman/person may terminate a pregnancy is not one for the law or even theologians to decide but, rather, one the pregnant woman/person must make as a living, breathing person with projects and work of her/their own.