On Wednesday, the Fifth Circuit heard oral argument in Alliance for Hippocratic Medicine v. FDA. You can read a transcript of the two-hour session here. I plan to write more about this case in due course. But here, I will opine on the press coverage of this dispute, and more broadly about abortion and language.
Shortly after the proceeding wrapped, the New York Times published a story titled Appeals Court Seems Skeptical of F.D.A.'s Approval and Regulation of Abortion Pill. As I was reading it through on my phone, one passage jumped out at me:
A lawyer for the plaintiffs, Erin Hawley, claimed that ending a pregnancy with medication — she used the anti-abortion term "chemical abortion" — is extremely unsafe.
At the time, I made a mental note, and planned to blog about it later. By Wednesday evening, I went back to the article on my desktop, and that passage was gone. (For those curious, I created a PDF of the original). Substantial changes were made to the article. Some bits were added, others subtracted. These sorts of changes are common enough when an article goes to print, so I don't think there was any deliberate effort to remove this passage in particular. Indeed, the usage in the Times was not at all atypical.
The choice of language is powerful–especially with regard to contentious social issues. And consistently, the political left gets to define what words are acceptable. "Marriage equality" sounds so much better than "same-sex marriage." "Gender affirming care" sounds so much better than "sex change surgery." "Diversity, equity, and inclusion" sounds so much better than "racial preferences." "Non-citizen" sounds so much better than "illegal alien." "Black" is capitalized but "white" is lowercase. And so on. These linguistic judgments are not value-neutral. They represent a subtle, but deliberate effort to make the progressive position more palatable.
At the same time, conservative positions are derided with negative language. I suspect the Alliance for Hippocratic Medicine would describe its position as "Pro-Life" rather than "Anti-Abortion," just as I suspect Planned Parenthood would call its position "Pro-Choice" rather than "Anti-Life." Yet, it is fairly common in the press to see the phrase "Pro-Choice" paired with "Anti-Abortion."
The now-deleted passage dismissed the term "chemical abortion" as some sort of right wing misnomer. Instead, the Times explained, we should speak of "ending a pregnancy with medication." Is "chemical abortion" so wrong, that the Times needed to dispute it with the anti-abortion moniker?
Merriam Webster defines an "abortion," in part, as "the termination of a pregnancy."
The FDA offers this description of Mifepristone
Mifepristone is a substituted 19-nor steroid compound chemically designated as 11ß-[p-(Dimethylamino)phenyl]-17ß-hydroxy-17-(1-propynyl)estra-4,9-dien-3-one. Its empirical formula is C29H35NO2. Its structural formula is: The compound is a yellow powder with a molecular weight of 429.6 and a melting point of 191-196°C. It is very soluble in methanol, chloroform and acetone and poorly soluble in water, hexane and isopropyl ether.
I am more than a quarter century removed from sophomore year in high school, but I think it is accurate enough to call mifepristone a chemical compound.
"Chemical abortion" seems a passable shorthand to describe the effect of mifepristone. True enough, the phrase has a negative connotation, and depicts the drug in a jaundiced light. By contrast, "ending a pregnancy with medication" sounds like a routine procedure–no different than popping an Advil to end a headache. Take two and call me in the morning.
For elites–including the press and most judges–pro-life terminology is considered inherently biased, while pro-abortion terminology is considered inherently neutral. As a result, language that shines a light on the potentiality for life is eschewed, while language that trivializes the potentiality for life is treated as the default position. By necessity, this choice of language favors the pro-abortion position. This choice of language is not value-neutral.
Judge Kacsmaryk's ruling, which triggered this appeal, included this footnote:
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. See ROBERT P. GEORGE& CHRISTOPHER TOLLEFSEN, EMBRYO 27–56 (2008) (explaining the gestational stages of an unborn human). 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, 2016 Changes, and 2021 Changes, this Court uses "unborn human" or "unborn child" terminology throughout this Order, as appropriate.
At the time, critics assailed Judge Kacsmaryk for adopting the language of the pro-life community. What is the alternative? To adopt the nomenclature favored by Planned Parenthood? The standard nomenclature–"fetus"–is favored by the pro-choice community. Unsurprisingly, the very people who favor abortion use a word that diminishes any personhood by the contents of a womb.
You may reply that the medical professionals favor the term, "fetus," so courts should defer to those experts, and use their lingo. Newsflash: leading medical organizations routinely support abortion rights, and urge the courts to rule in favor of Planned Parenthood. The response to the pandemic reaffirmed that so-called public health experts are not neutral. (See Justice Gorsuch's statement in the Title 42 case.) They expressly consider political considerations when they pronounce "science." Indeed, what makes the Alliance for Hippocratic Medicine so unpopular is these doctors generally do not favor abortion rights.
Why do those who support abortion at virtually every stage of the pregnancy get to define the linguistic bounds of discourse? It is a mistake to surrender the grounds of language to these experts. Doctors with white coats cannot define language any more than judges with black robes can.
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