I want to clarify and reinforce key points from recent blog entries concerning abortion rights (The Supreme Court Affirms the Tyranny of Majorities; Abortion is Not Murder. At Least According to the Bible. It’s Not Even Criminal; Segregating Liberty by Sex and the Matter of Religious Freedom). This issue is far too important to not talk to death—and the death I’d like to see in all this is that of the tyrannical impulse to control women’s bodies.
At the start, however, let me say two things I haven’t said, or at least, for one of them, need to clarify. The first is that abortion is birth control. I see rhetoric differentiating contraceptive methods that prevent pregnancy from abortifacients and medical procedures that end pregnancy. There is a fuzzy area in there where methods of preventing the fertilized egg from implanting in the uterine wall prevents a pregnancy but still ends the life of a potential human being. We can dispense with ambiguity by noting the literal meaning of the term in use, namely birth control. Everything we’re talking about is about preventing a baby from being born. I may be warned about putting ideas in people’s heads, but preventing a woman from having an abortion is preventing her from practicing birth control and this must be said.
Secondly, I have been criticized for using the castle doctrine to justify terminating what I regard to be a human being. I steel man my argument in defense of abortion by granting the personhood of the fetus (see, for example, The Fetus is a Person. Now What?), so arguments operating on the premise that the fetus is not a person are not available to me. (The premise that denies the personhood of the fetus comes with a myriad of problems, not least among them euthanization of those government and medical authorities deem non-persons because they lack the characteristics of personhood also absent in fetuses.) Because I grant personhood, I have to identify a legal excuse for fetal homicide when this is the desired outcome. The castle doctrine is not the only legal excuse available to me. Not all killing is murder and there are several avenues open to those who kill but wish to avoid murder charges. These are: wartime killing, killing to overthrow oppression, killing in self-defense, and killing to protect those who cannot defend themselves (the latter is an extension of the former).
Any good patriotic conservative will recognize all of these types of killing as undeserving of the charge and stigma of murder. Americans have gone off to war and returned heroes. If the war was just, and soldiers followed the rules of combat, then so was their killing. The founders of the American Republic initiated a war of independence to establish a new order of things—or, more precisely, to make manifest the promise of the Enlightenment, an act that in time ended the legacy of slavery and realized the right of women to be full political actors (a right that is at present very much in jeopardy). Any good patriotic conservative recognizes the right of a man to defend himself, his family, and his home from interlopers.
It should be clear that I am using the castle doctrine not as the crux of the legal justification for abortion (although I would throw it in the mix in judging a case), but as an instantiation of the foundational right to defend one’s life, liberty, and happiness, the inalienable rights identified in the Declaration of Independence. It is more than an analogy; such a principle must be assumed or there is no mechanism for defending inalienable rights. In other words, if a woman cannot defend life and liberty, then how can a man appeal to the castle doctrine? In both cases, killing is a means to a just end. This is why the Second Amendment is important—and why it is a collective right available to all. The question for conservatives is why they make an exception for women.
A counterargument presented to me in debate is that pregnancy, except for rape and incest (presuming the incestuous intercourse is involuntary, which makes it rape), is one hundred precent preventable. If you don’t want to be pregnant, then just don’t have sexual intercourse. Moreover, there is contraception that, when used correctly, and if the correct one is used, almost never results in pregnancy.
Previously I argued that, consistent with Nuremberg, another instantiation of the foundational rights identified above, women enjoy a right to withdraw from circumstances they may have voluntarily chose. However, even if we agreed that women aren’t allowed to change their mind after becoming pregnant by choice (and I do not agree), the reality is that sex without the intent to have children results in unwanted pregnancy all the time. Arguing with intent in the mix loses the argument in all cases where intent cannot be demonstrated—and it would be the burden of the state to demonstrate intent, an impossible task in most cases; having sex is not in itself indicative of intent to become pregnant.
Having made clear that the claim that sex and procreation are intrinsically linked is a religious perversion, let me emphasize that sex, which is for the most part intended for fun, is linked then to the right to happiness, which is among a woman’s inalienable rights (see Declaration of Independence). Not to go on about it, but sex is, for many people, one of the greatest things about being alive. It’s why humans do it so much. Unintended pregnancies are therefore inevitable. And this is why abortion has been practiced nearly everywhere for millennia—yes, even in the US at the time of our founding.
There is a related issue that is highlighted by the categorical attack on men suggesting that men should be the target of state reproductive control—vasectomies and whatever. This argument undermines the struggle for reproductive freedom by denying principle. If it is wrong for the state to regulate a woman’s reproductive capacity, then it is wrong to regulate a man’s. This extends to the man’s responsibility for the care of a child. If the women who does not intend a pregnancy or who wished not to continue with it can abort the fetus, then the man who did not intend the pregnancy or wishes it to continue can also walk away. Since having sex is not intrinsically linked to having children, the man can no more be on the hook for the fetus than the woman.
I have written that pregnancy comes with risks. When a person can, she should be allowed to voluntarily accept—or not be prevented from refusing—risks to her health and wellbeing. In this case, the risks are subject to choice. Whatever the probabilities associated with contraception, whatever the rate of failure of its various methods (and individuals should take time to learn about these), the methods of ending a pregnancy, if correctly used or performed, enjoy success rates approaching one hundred percent.
To be sure, there are risks to birth control. However, again, a person must be free to choose those risks. If one determines that having an abortion is less risky than methods of contraception available to them, then a rational choice has been made. If a person is prepared to accept the risks associated with having sex, including having an abortion, then a rational choice has been made. Of course there are risks to having sex. In a free and secular society, individuals must be free to choose those risks. They must also be allowed to have consensual sex without state-imposed consequences.
I have also criticized the defenders of abortion for the manner in which they defend the practice, especially over the language of rape and incest. Granting life of the mother (even those who resist my argument concerning the castle doctrine surely must be accept this exception), my argument goes like this: if the fetus is a person, and the person’s life must be preserved even at the cost of the mother’s desires, then why should the fetus suffer because the father is a rapist or a family member? Remember, I have granted the claim that the fetus is a person. Why should a person die for the sins of the father?
I make this point because I want those who defend abortion by appealing to the horrors and tragedies of rape and incest to reflect on the possibility that their suspect exceptions may becomes part of the regime that regulates abortion. Indeed, across Europe, and much of the United States, abortion is regulated with these exceptions in mind. But there should be no exceptions. The argument for abortion must focus on bodily autonomy and personal liberty, not on a presumption that some fetuses are more valuable than others. Birth control is not about protecting the lives of fetuses. It’s about protecting the lives of women.
I also push back against arguments that use cases where the mother forced to give birth is a minor. In some of these cases, the person is very young. It is hard to not respond in shock to the plight of a child forced by the state to give birth. Indeed, when three years ago, in Argentina, authorities denied an abortion to rape victim eleven-year-old “Lucia,” we were rightly horrified. Lucia attempted suicide twice upon learning of her pregnancy. She was placed in state care as a consequence. So the state literally forced her upon a gurney and cut her open. Lucia underwent a Caesarean section in the twenty-third week. The baby died a few days later. But why is this any less horrible if the person facing all this is an adult?
Finally, and this should be obvious in everything I write, the state must not force women to practice birth control any more than the state can force women to have babies. Observers are estimating that China’s one-child policy, a past program that included forced abortion, has resulted in the termination of 400 million pregnancies. I adamantly oppose any policy that compels women not to have the children they want or that forcibly limits family size. It is one thing to educate and persuade (and we do have an overpopulation problem). It is another to indoctrinate and coerce. America is a republic, not a tyranny. Family planning is not up to the majority or technocrats to determine. People own their bodies and control their destinies in a free and secular society.
In closing let me iterate that the United States of America was not established as a majoritarian democracy. The founders loathed popular democracy. They saw this style of government as not only destructive of individualism, but of progress and justice. We were founded as a liberal democracy—a constitutional republic with a bill of rights that specifically protects personal liberty from government overreach. The United States is explicitly organized around individual liberties and rights. Women are as entitled to those rights as men.