Breaking the Abortion Deadlock: From Choice to Consent

Laura R. Woliver

New developments in how to reframe reproductive rights might come about from recent scholarship which asks us to reconceptualize what abortion jurisprudence should be grounded in. Currently, the debates center on women's rights versus fetal rights, the extent of the state's interest and legitimate intrusion into personal privacy, and the meanings of viability and protection of women's health, to name a few. Eileen McDonagh's groundbreaking study provocatively challenges us to see abortion from a new perspective. McDonagh uses established and respected legal principles of self-defense, justified use of deadly force, state police powers, wrongful pregnancy, informed and affirmative consent, personal injury, and coercive bodily intrusion, to point out the traditions and principals in our established jurisprudence for abortion rights, and required public funding. From this new vision of pregnancy and abortion, a woman's total and complete right to choose to remain pregnant, at any time in the pregnancy, for her own reasons, and with government financial assistance regardless of the woman's financial situation, or the circumstances which brought the egg and sperm together, is established. Eileen McDonagh bases her pro-choice stance on a compelling, morally based, examination of "women's true consent to be pregnant". She displays how technically, sexual intercourse doesn't make a woman pregnant, women have sex without automatically, every time getting pregnant. Men, in addition, do not make women pregnant. What makes a woman pregnant is a fertilized ovum's implantation into the walls of a woman's womb, and maintenance of that implantation for possibly nine months. Women (and men) have sex, therefore, often without intending to set in motion a pregnancy. The issue for women is whether or not, once they learn of the fetuses' presence in their bodies, and hence the pregnancy, if they affirmatively choose to remain pregnant or not. McDonagh reviews all the ways that a fetus affects a woman's body, and the massive intrusion, health issues, and hard work a woman faces when a fetus successfully implants itself in her body. After presenting the background for the biological sequences for a pregnancy, and the consequences for a woman's body, McDonagh reviews American jurisprudence and philosophy concerning "good" and "bad" Samaritans, the law of self-defense, and government obligations to come to the aid of any born person faced with a situation of nonconsensual bodily intrusion. Coercive good samaritanism is not supported by our laws or cultural norms, and cannot, therefore, be applied to pregnant women. A woman compelled to remain pregnant is like a "captured" Samaritan, being intrusively used by another. Our law does not require parents to give up blood or body parts to a sick or dying born child. This study shows the startling logical inconsistency for a born woman's rights vis a vis pregnancy and expectations that only she must submit to captured or coercive samaritanism. McDonagh's nuanced construction of a potentially transformative vision of abortion also shows how to restore government abortion funding. McDonagh displays that even if we grant, for argument's sake, pro-life movement assertions concerning the possible humanity of fetuses, nonetheless, no person (even a fetus) has the right to intrude into another's body without his or her explicit consent. As McDonagh puts it, "to the extent that the law protects the fetus as human life, the law must hold the fetus accountable for what it does" (p. 7). The fetus causes the pregnancy, which has a profound impact on women's bodies, therefore pregnant women should have the right to choose to resist an intrusion by a fetus to which they have not consented, and ask the state to help stop the intrusion: Pro-life advocates, therefore, do not expect that the fetus has more rights than a born person, only that it has the same rights. When born people intrude on the bodily integrity and liberty of others, the state stops them. If we do what the pro-life advocates advise and evenhandedly apply the same principles to preborn life, the state must then stop the fetuses from intruding on women's bodily integrity without consent. To argue otherwise is to assume that fetuses may intrude on the bodily integrity of others in a way the state allows no born people to do. To so argue implies that fetuses have not equal, but more, rights than born people (p. 138). McDonagh deftly shows how to utilize pro-life premises to reach pro-choice conclusions. She shows that no matter how you look at abortion to begin with, if you accept born women's rights as full and equal persons under our laws, revered doctrines of personal rights ineluctably draw you to a pro-choice stance. Governmental refusal to provide public funding for abortions, and the absence of state assistance for insuring that abortions are safe and accessible, for instance, constitutes "a form of state action depriving you of your right to life and liberty in violation of the Constitution's Due Process Clause. State protection of born life does not entail the imposition of injuries on others, no matter how great the need. The current method, or means, the state uses to protect fetuses as preborn life therefore allows the fetus to do to women what the state allows no born person to do to another. Not only is this preposterous, but also it violates the Due Process Clause on procedural if not substantive grounds" (pp. 123-124). Women's bodies are not instruments to be used for other people's purposes, McDonagh points out, therefore issues involving husbands, boyfriends, sperm donors', or the state's rights and interests in the developing fetus are not germane. Even if somehow these interests were established and legally recognized in the future, the law of self-defense which a woman could base her right to abortion on would trump the interests of other parties, even the state itself. As she cogently writes, McDonagh's study "breaks the deadlock over abortion rights created by the clash of absolutes over the personhood of the fetus by recentering the abortion issue on a premise of self-defense, which is the common ground that can unite pro-life and pro-choice forces alike" (p. 11). One issue which future studies by McDonagh could explore more fully is whether when a woman consents to remain pregnant, if the personhood of the fetus were granted and accepted, would the pregnant woman then come under heightened state surveillance and control concerning her health and behavior as it might affect that fetus? If a woman chooses to remain pregnant, in other words, under a system where the fetus is seen as a "person" with the rights and responsibilities of personhood (thereby justifying abortion because no person can intrude on another person's bodily integrity without consent), would that woman's tobacco, alcohol, or drug (legal and illegal) use be legitimately monitored by the state, and her behavior sanctioned and controlled through the state's interest in protecting the health of the fetus/person. McDonagh recognizes that these situations require the highest scrutiny of the courts (p. 182). The implications, however, this might have on the born person/woman's rights could be troubling for scholars and policy makers trying to situate women's rights during consented to pregnancies. Given McDonagh's requirement of state assistance to a woman whose pregnancy does not have her consent, one consequence might be that states would be obligated to truly help women consenting to continue a pregnancy, instead of only sanction them, if they are addicted to drugs, tobacco, or other harmful substances. Given our present political climate, though, it is unlikely the obligation to assist and affirm women's health would be implemented and fully funded, however, the authority to sanction would most likely be readily used. The layered, compelling logic of McDonagh's thesis, the extensive documentation and research supporting each step of her argument, and the politically powerful implications of extending hallowed, established legal rights to the situation of a pregnancy not consented to, makes this book of utmost importance to anyone thinking about women's rights, reproductive and privacy laws, and government obligations to assist women negotiating their reproductive decisions. Future scholars, litigants in abortion cases and policy makers shaping reproductive laws should incorporate and address the evidence, precedents, legal principals, and consequences of McDonagh's logically presented and compelling conceptual shift which can reframe abortion debates.