My Body, My Choice
June 29, 2022
Is abortion more about convenience or a right to choose?
June 24, 2022 will surely go down as a memorable in US legal history.
Judging from much of the commentary on social media and the mainstream press, it will be marked a dark day for women’s rights – in particular the women’s right to choose whether to keep a baby or have an abortion (or, for the sake of impartiality, to kill the baby).
I do believe in the right to bodily integrity. And if there is one thing that we have seen over the past two years as a result of the COVID-19 pandemic, it is that governments are quite willing to consider infringing the right to bodily integrity.
In the UK, for a time, health and social care workers were required to be fully vaccinated for COVID-19 or risk losing their jobs. In many other countries, mandatory vaccination applied to a wider group of people. In the US, companies employing more than 100 people had to require their staff to be fully vaccinated or have weekly Covid tests.
So, on this basis, perhaps the reversal of Roe v Wade by the US Supreme Court in Dobbs v Jackson Women’s Health is something to be concerned about.
Already, as a consequence of the judgement, abortion services in a number of states are closing as a result of advance legislation. Women’s fears of government restrictions on what they can choose to do with their bodies are arguably rational.
But let’s be clear about what the Supreme Court actually says: “The Constitution does not confer a right to abortion...and the authority to regulate abortion is returned to the people and their democratically elected representatives”.
In other words, the Supreme Court is not taking a position on whether abortion should be available or not. It is simply saying that, in a democracy, it is a matter for democratically elected politicians. This should not be a controversial position.
The thinking is not dissimilar from that of the UK’s own judges in relation to another pro-life/pro-choice issue – assisted suicide. Indeed, the right to abortion in the UK is not something that comes through any constitutional document, not even through the European Convention of Human Rights; it comes through legislation that has been passed by Parliament. Sure, all legislation is subject to repeal or amendment but, judging from the reaction across the political spectrum, the question of the right to abortion in the UK is pretty much settled.
The Dobbs case in the US only emerged because a conservative leaning state legislature (Mississippi), amongst others, passed legislation to restrict the availability of abortion in the state.
There is nothing stopping left leaning state legislatures, such as California, from protecting the right to abortion. Indeed, this new judgement means that they are free to make abortion even more accessible. Similarly, there is nothing stopping the federal government from taking action to limit restrictions on abortion or even Congress from pass its own legislation. Many believe that abortion will now become a key issue in the mid-term elections later this year.
This is how laws should be created - as a result of democratic or social consent. The role of unelected or appointed judges has always been to maintain the law. Their role in law making within common law countries (of which the US is one) is limited to essentially filling in the gaps as long as it doesn’t depart significantly from previous decisions or existing legislation.
It is also worth pointing out that the reversal of Roe v Wade was inevitable. As the New York Times points out, questions over the legitimacy of the judgement in Roe v Wade granting a constitutional right to abortion have already been raised in previous cases. In 1973, 20 states had already legalised abortion and, it could be argued that the political process of liberalising abortion was effectively cut short with the judgement. Now it seems that the proper debate can be had and effective legislation can be developed.
I would question, however, whether the ‘right to bodily integrity’ and ‘my body, my choice’ are unshakeable arguments for abortion.
It is probably a bit simplistic but governments already do pass law governing what we can do with our bodies. We cannot use our bodies to hurt or kill other people, we cannot consume illegal drugs (or even legal drugs in certain cases) and we are even compelled to put restrictions on our bodies for our own safety. I doubt many people object to being made to wear a seatbelt while driving, even though a lot of people objected to mandatory face masks and vaccination during the pandemic.
But is being forced to have a dead virus injected into your body really the same as being forced to carry a baby to term?
You might argue that the baby cannot live on its own, separate from the woman’s body, before nine months, so that makes it nothing more than an appendage to the woman or even a parasite. If you believe that, then fair enough. But, when you tell someone “you have the Covid virus”, no-one says congratulations or looks forward to what it will look like in nine months’ time. No, they tell you to self-isolate and get better quickly.
Of course, there is a difference between the COVID-19 vaccine and a baby and there is also only one way in which women can become pregnant.
For the most part, a man can only impregnate a woman with her consent – that is, where a man and a woman choose to have sex or the woman decides to undergo IVF or artificial insemination.
As far as consensual sex is concerned, it’s difficult to see how anyone’s right to choose is being violated. A woman has the right to say no. A man should of course wear a condom if the woman asks – it’s not only respectful, it is also the safest and most reliable form of contraception.
Rape, including statutory rape where the women or girl is unable to consent, would obviously be a violation of the right to choose, so the right to an abortion ought to be available in those circumstances. Similarly, if the baby in the womb has somehow put the mother’s life in danger, then banning abortion would be unreasonable.
However, scientific research shows that the main reasons why women choose to have an abortion are nothing to do with rape or health. Sophie Chae et al found that, out of 14 countries, the most frequently cited reasons were socioeconomic concerns or limiting childbirth. Even in the US, the main reasons for wanting an abortion were financial (49%); timing (36%), partner related reasons (31%) and not wanting any more children.
It seems that legalising abortion for anything other than rape or health reasons absolves the government – and society – from thinking about what is really needed to help people.
I also wonder whether the availability of abortion makes ‘hook-up culture’ more accessible. Certainly, during the pandemic, social distancing was forcing many single people to really spend time getting to know someone before deciding to ‘hook-up’. It was not really casual; there was something more intimate about it, even if it didn’t quite meet the boyfriend/girlfriend test.
So, would it be such a bad thing if restrictions on abortion made people – men and woman – think twice before jumping into bed with someone soon after meeting?
I also wonder whether it is such a big inconvenience to carry a baby successfully to term, even if the woman does not want or is unable to look after the baby.
In the US alone, infertility affects 10% of women between the ages of 15 and 44. Globally, 48.5 million couples are affected. Even a woman who becomes pregnant through consensual sex, but does not want the baby, there are plenty of couples out there who would probably love to take the baby off the reluctant mother’s hands. Of course, no-one should be forced or coerced to give up their baby for adoption. But, it’s difficult to feel sympathy for the women who are “being forced” carry a baby to term, when there are many out there who would change places with them in a heartbeat.
The “reversal” of Roe v Wade is specific to the US, but I do not think that it means the end of abortion there or anywhere else. It also does not undermine the “right to choose”. But perhaps it will improve democracy and make people think about what’s really important.
© Pravin Jeyaraj 2022.
Graphic - Nina Matthews
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