Tuesday, September 07, 2004

Abortion and "Reproductive Rights"

Someone somewhere else mentioned their discomfort with the term "reproductive rights", and I realized that we've actually studied something recently in Torts class that I find relevant to an explanation of the term.

When studying the tort of 'battery' (Law school! Now in week three!), we learned that its elements are

intent to touch and intent to cause harm or offense with that touching*;
and
actual touch, and harm or offense resulting from that touch.

[*] Different jurisdictions may rely just on the intent to touch. This is a 'strict liability' approach. You broke it, you buy it, regardless of what you meant to do.

In the case Cohen v. Smith (648 N.E.2d 329) we learned that bodily harm doesn't have to be caused by this touching. Offense to a reasonable sense of personal dignity works too.

That case also told us that the right to accept or refuse medical care, to determine what shall be done with one's own body, is sacrosanct. (In Cohen, a woman's religious beliefs imposed certain requirements - that the hospital agreed to - on her medical care. The hospital then ignored those requirements.)

The problem is, with abortion, until we have external reproductive systems, a pregnancy always carries with it the possibility of someone having to make an either/or decision:

what's best for the mother?
or
what's best for the fetus?

And how, really, can I get away with being that someone, telling you what choice to make?

A person's right to choose the nature of or course of their medical care does not go away just because they have a potential person growing inside them. This is why we call them reproductive "rights".

It is your right to make decisions about your medical care.

"Reproductive rights" are not about the right to end a potential person. They're about the right to control what other people do to your body. The right to give or withhold consent as your personal dignity, religious beliefs, morality, etc., may require.

If you are a Jehovah's Witness and cannot accept blood transfusions, that's your decision to make, about your medical care.

If you are a pregnant woman with a heart condition, and your doctor tells you it could kill you to try to carry a fetus to term, it could kill you to give birth, it could kill you even with a C-section, you are trapped with the most hideous decision in the world.

But it is still yours to make.

Because I don't have the right to tell you what medical treatment to accept or deny.

If I take away from you the right to determine what happens to your body when you're pregnant, then what comes next?

What about...if you might become pregnant? Isn't that a terribly important time, too? Your health affects the health of any fetus you might carry. So, to be safe, why doesn't the state just dictate to all menstruating women as well as all pregnant women? All menstruating and pregnant women are not allowed to smoke. Because, it's damaging to a fetus, you know. All menstruating and pregnant women are not allowed to drink. Or eat fatty foods. Or have too much salt. Or work in high-pressure jobs - got to watch that blood pressure! Or watch scary movies - mustn't overstrain your nerves!

Or work at all?

Bam. We've just gone back to the Victorian era.

That was one hell of a slippery slope, wasn't it? Let's not slide down it.

"Reproductive rights" are a part and parcel of your right to control the course of your medical care, pregnant or not.

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