A Supreme Court Justice Invented Trimesters As We Know Them

While promoting my first book at readings and book club gatherings and libraries around the country, I spent most of my time talking about abortion. I made jokes about my cervix; I cried (and laughed) with readers who so generously and movingly shared their own stories with me (and/or asked me to draw boobs in their copies when they reached the front of the book-signing line). I answered endless questions about seaweed and God and selective terminations and C-sections and abortion clinic candy drawers.

And I would always find a way to bring up the fact that we, as a culture, have been conditioned to understand abortion in certain narrow ways, for certain narrow purposes. We’ve been trained to frame our circumstances in a certain way with certain words when we argue for our basic human rights. For instance, “trimesters.” This is a revelation for many people, maybe even for most of us: Trimesters aren’t real.

When examining the text of, or the circumstances surrounding, 1973’s Roe v. Wade decision — as you may feel the unfortunate need to spend more and more of your one wild and precious life doing these days — you’ll see some interesting quotation marks, and note some interesting usage of terms like “crafted” and “devised.” You’ll see frequent mention of trimesters and viability, but not of their biological origins. This is because they were invented by a man named Harry Blackmun, who was not a doctor but a judge, a Supreme Court justice, who, even as he invented them, admitted just how arbitrary these concepts are.

Trimesters are the Easter Bunny. They are the Tooth Fairy. They are Santa Claus, if Santa Claus was a cop and also had failed high school biology.

This trimester framework is derived not from ancient medicine or common knowledge of the human body and reproductive systems but from nine guys who went to law school before women could get credit cards in our own name, and their assessment of when “the state’s interest” in our pregnancies might become “compelling.” I just love to compel people, don’t you? In other words: Trimesters are real — have to be real, for those of us whose bodies and lives are being legislated about — in the way that money and the stock market and the economy are real. In other words: They are figments of some crusty old male imaginations.

Trimesters are the Easter Bunny. They are the Tooth Fairy. They are Santa Claus, if Santa Claus was a cop and also had failed high school biology.

The sole purpose of Roe’s “trimester framework” (note the use of quotation marks, which allow us to just be out here saying any old thing we want!) was to permit different states to enact different categories of abortion regulations at different stages of pregnancy. That’s it.

“For the stage prior to approximately the end of the first trimester,” Justice Blackmun wrote, in his majority opinion on Roe for the court, “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.”

In the so-called second trimester, Blackmun went on to propose, the state could adopt abortion restrictions “reasonably related to maternal health.”

Then, Blackmun wrote, would come “viability.” After fetal “viability” — which, in the court’s mind, is some exact moment at which all fetuses could survive outside the womb, then associated with the third trimester but in actuality varies widely from pregnancy to pregnancy — a state’s interest in “the potentiality of human life” would support prohibition of abortion, as long as the law allowed exceptions for “the life or health of the mother.”

I have many questions for Justice Blackmun. Here are just a few:

• At this mysterious moving target of “viability,” the fetus can “survive” on its own, how? On life support? With what medical interventions and for how long?
• What, having survived, is then its quality of life?
• What if the fetus will not survive any given length of gestation because of anomalies or genetic conditions?
• And who is deciding, here, what “health” means? Or how close a pregnant person can get to dying before abortion care can be provided to keep them alive? Who is deciding what it means if they die later, from complications of the labor and delivery they couldn’t or didn’t want to endure?

Let me know, Harry!

One of the most crazy-making aspects of parenthood — and just plain old existence — in this country in 2024 is the legally mandated lack of imagination available to the rest of us. Yes, we seem to be told, this is all logistically impossible, and also breathtakingly cruel, but it has to be this way, you see. There is no other way! Day care has to be privatized and run by corporations, and it must charge mortgage-sized tuition fees while paying its teachers unlivable wages. You have to go back to work after 12 (unpaid! Deal with it!) weeks of parental leave, your child quite literally a newborn up until this very second, your body and brain still in the very beginning stages of recovery from their birth. We have to build highways and parking garages in lieu of functional public transit, and wars must be fought to pay for all the oil we just have to suck from the Earth and use in order to get to the jobs that have to be worked outside of our homes and on a separate schedule than our schools, which just, unavoidably, are full of guns. There’s nothing we can do about it, you understand.

Is it unfortunate that intrauterine device (IUD) insertions simply must be agonizingly painful? Sure. Is it tragic that every few hours there is a school shooting in America, and that the pollinators are dying off and the sea level is rising, and that nobody in power will lift a single finger to protect our children from this abject horror? We guess so! But them’s the breaks. That’s the way the cookie crumbles. Thoughts and prayers go out to you, though, for sure. So many thoughts and prayers.

So, too, must pregnancy be the (terrifying, nonsensical, wildly inequitable) way it is, in America. The state wields the unquestionable right and power to intervene in our pregnancies, we are told. Which interventions it chooses — and at which stages of those pregnancies — depends on our geographic, racial, and socio-economic circumstances. Normal! Fine! Can’t be any other way, even though abortion itself is one of many totally normal pregnancy outcomes and is older than the Catholic Church, the Supreme Court, and the United States.

Pregnancies just happen to be neatly divided into three little containers, you see, identical inside each body just as our children are then identical little robots who develop along predetermined and exact timelines once they are born.

Abortion is an act of imagination, too.

There are many, many reasons why the Roe v. Wade decision was possible in 1973 and wouldn’t be now. The ruling — which was, in actual practice and for all our invocation of its gifts, an abortion ban that dictated on a federal level which abortions were acceptable and allowable and which were punishable by law — was a product of a time rich in Men Making Stuff Up (see also: Henry Kissinger, Vietnam War), but also of a time in which abortion was not yet the enormously profitable political football and fundraising buzzword it has become today.

When Roe was decided, it was by a Republican-nominated Supreme Court. In fact, the seven out of nine justices who agreed that the Due Process Clause of the 14th Amendment (which says that no state shall “deprive any person of life, liberty, or property, without due process of law”) implies a right to privacy counted lifelong Republicans among their ranks. The Republican Party had not yet discovered that extremist and draconian anti-abortion policy was the key to unlocking enormous treasure chests of evangelical and Catholic money and lobbying power. When Roe was decided, William J. Brennan was the only Catholic justice. Today, six of the nine justices are Catholic.

In both of my own pregnancies, one of which ended with the birth of my child and the other with an abortion, I found myself having to work harder than ever to remember what is real and what is not. At 13 weeks and one day pregnant, in my so-called second trimester, I was devastated to find that I did not suddenly stop vomiting and start glowing, as every book and neighbor and nurse had assured me I would.

I had to remind myself, over and over again: These are not actually the terms set by my body.

At 24 weeks — the age at which the McCullough textbook says that my American fetus should survive outside the womb — I was enraged by the realization that said “survival” would require a level and volume of medical intervention that would ruin my life and finances forever, not to mention imparting the trauma of an uncertain stay in the NICU even without any other major complications.

I had to remind myself, over and over again: These are not actually the terms set by my body. That unlike the elephantine swelling of my feet or the hormones that make me sob for 45 minutes about a bird I saw that looked like it might be hurt, these terms are not actually real.

You see, these things aren’t inevitable or observed to be occurring naturally in our bodies or on our courts. These goalposts aren’t shifting themselves. These laws and statutes and amendments aren’t simply appearing on the magic erase tablets of our state constitutions. They are decided, designed, calculated, created, enacted and then enforced, by whichever nine or 12 or 4 or 535 people have enough money and free time — and enough control over their own reproductive lives and family structures — to get the jobs that give them power over the rest of us.

But, as I tell patients and doula clients and readers alike: Abortion is an act of imagination, too. It’s an act of creating an alternative path for yourself, instead of following the directions written by those who a) don’t know which way is up and b) don’t care if you live or die, as long as you make them money. Access to abortion care — whether we seek it for ourselves or help support and provide it for each other — is one of the ways we go off-script, abandoning the nonsensical plots they keep writing and re-writing for us, in a language they’ll never even be able to learn. They can make up all the little scenes and characters and rules they want. We write our own stories.