Bodily Autonomy and Abortion Rights

The fundamental issue in yesterday’s Supreme Court ruling on abortion access is bodily autonomy. On this principle, we cannot and will not require someone to donate organs, blood, or other energies or resources in order to save the life of another. Even if that act would create tremendous benefits to recipients and minimal harm to the donor, we draw a line because our bodies are ours—autonomous. This principle is best evidenced in the strict rules that surround organ donations from someone who recently passed away, out of respect for them and their loved ones. These restrictions on organ donation illustrate that the concept of bodily autonomy is so strong that it applies even after our death. Alito’s opinion fails to recognize bodily autonomy, and even criticizes its previous use. Roe v. Wade relied on the concept of bodily autonomy by distinguishing the viability of a fetus: abortion restrictions were banned before the gestational age at which a fetus can typically survive on its own without the bodily contributions of its mother. Until it is capable of surviving on its own, Roe v. Wade recognized that we cannot require a woman to sacrifice her liberty to save another—it recognized her bodily autonomy. Alito mocks Roe’s use of viability in its opinion by referring to it as ‘glaring deficiency.’

The 14^th Amendment is key to the concept of bodily autonomy and abortion, as this amendment prohibits a state from restricting life, liberty, or property without “due process of law” and establishes equal protection of the laws to all people. Alito argues that the rights that can be protected under this ‘due process clause’ need to be strictly limited. His standard for considering rights comes from a 1997 court case (Washington v. Glucksberg). It argued that such rights must be “deeply rooted in the Nation’s history and tradition” (Washington v. Glucksberg). Apparently, his test for ‘history and tradition’ is whether it was in practice back in 1868, when the 14^th Amendment was passed.

I won’t comment on whether his logic is sound in arguing that abortion was not an established right back then. That aspect is irrelevant if we see abortion as a larger issue of bodily autonomy. Alito’s logic only seems to hold if we look at the bodily autonomy of a pregnant woman differently from lots of other cases of bodily autonomy. If indeed Alito is separating abortion from the rest, another comment in the opinion seems especially relevant. While he rejects the precedent of the Roe v. Wade decision, Alito does choose to assert the precedent that abortion restrictions are not “discrimination against members of one sex or the other.” As I read it, he doesn’t even consider whether there is discrimination, which would be a difficult argument to make if bodily autonomy is being denied for women but not men. He simply argues that previous court cases have not relied on the argument that discrimination is happening, and he accepts the precedent of continuing to ignore this issue.

To get into greater detail on this point…If the stated goal is to protect fetuses, a non-discriminatory approach would evaluate the range of options by examining data. It is my understanding that we have done that analysis and that sex education and birth control availability are far more likely than restrictions/bans to reduce the number of abortions. In the face of this evidence, a policy that just eliminates bodily autonomy for women sure seems like a textbook case of discrimination.

Let’s look at Alito’s arguments not in the face of the narrow concept of abortion but the larger concept of bodily autonomy. Is it true that we lack a history of protecting bodily autonomy dating back to 1868? I haven’t seen anyone make that argument, and Alito sidesteps it by dismissing the standard of viability out of hand. Alito suggests that he can envision a free and ordered world in which women do not have bodily autonomy, which seems pretty ‘Handmaid’s Tale’ to me. Equally out of touch, his opinion states that the U.S. now provides ample support for pregnant women and newborns. He lists: improved attitudes about pregnancy of unmarried women; bans on discrimination due to pregnancy; widely-provided leave and medical care for pregnancy and childbirth; and ‘suitable home[s]’ being available for any baby.

I can’t help but wonder if framing abortion as a unique issue rather than a more general matter of bodily autonomy was intentional and carefully crafted. Without this sleight of hand, the reasoning behind yesterday’s Supreme Court majority opinion falls apart.

Any thoughts? What am I missing?

Gays shouldn’t have to wait any longer

Dear Supreme Court,

You are currently considering two cases pertaining to an extremely important issue for our modern society—gay marriage. I would love it if you would listen to a few points before making your decision. I think they will make your job much easier.

First, let’s put the whole “marriage is for procreation” argument to rest.  As background, I have not heard your direct deliberations, and I also acknowledge that questions you ask should not be construed as opinions. You are Justices and, as such, I hope you are asking questions that explore this issue from a range of perspectives. Nevertheless, the "marriage is for procreation" argument has been put forth as a central tenant of those who oppose gay marriage, so let’s address it, dismiss it, and move on. As it turns out, I provide the perfect rebuttal to the argument. I plan to remarry sometime soon, and procreation is the farthest thing from my mind. In fact, I have had a vasectomy. Short of reversing it or retrieving sperm directly from their source, my days of procreation are over. Why on Earth would I want to get married if not to procreate? Great question! I want to get married to raise my kids in a stable home environment that is recognized by society and law as a family unit. Not surprisingly, many gay couples have this same motivation. Why should I be granted this right when they are denied it?

Second, let’s dismiss the traditional marriage argument. If this is the only justification left to deny gays the right to marry, as it seems to be, then it’s not much of an argument, is it? Wouldn’t the same argument justify any number of discriminatory practices in our society? Sadly, many of these (e.g., slavery, women’s suffrage) did not end until the Constitution was amended. Absent those amendments, though, I doubt a legal argument could justify slavery today on the grounds of tradition alone.

That leaves one last point, which was often raised in media reports yesterday—the timeliness of the decision. I will leave it to legal experts to determine legal standing based on procedure. However, much discussion surrounded the concern that we should not legalize gay marriage everywhere when it is such a new “experiment,” with a 5 year history compared to thousands for heterosexual marriage. I mean no disrespect, Justices, but you are missing the point. Gay relationships have existed for thousands of years as well. The issue here isn’t about some social experiment on the effects of same-sex relationships. It’s about legal recognition for relationships that have been with us throughout our history and that are just as much about healthy families as heterosexual ones. Gays shouldn’t have to wait any longer for equal rights.

Sincerely,

Josh

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