OTI Online
Winter 1998

My Body, My Choice, My Consent
by Eileen McDonagh


CONSENT TO SEX IS NOT CONSENT TO PREGNANCY


Nearly 25-years after feminists celebrated Roe v. Wade, many women still undergo pregnancy against their will. Their choice to have an abortion is blocked by the Supreme Court, which deemed it constitutional to prohibit federal funding or the use of public facilities for an abortion, to demand parental consent from minors, and impose 24-hour waiting periods and "gag rules." The result: for millions of poor and/or young women, the right to end a pregnancy is little more than a meaningless abstraction, akin to the right to choose filet mignon for breakfast. It's time, therefore, to reframe the legal argument so that women not only gain the constitutional right to choose an abortion, but also the constitutional right to government assistance, if necessary, in obtaining one.

How? The first step in accomplishing real abortion rights is to stop arguing about what a fetus "is" - whether it is a fullfledged miniature citizen or an amphibious lump of tissue - and establish what a fetus "does" to a woman.

According to a standard law dictionary, pregnancy is defined as "the condition in a woman's body resulting from a fertilized ovum." What the fertilized ovum and later the fetus "does," obviously, is to affect a woman in such a way that her body changes from a non-pregnant to a pregnant condition. As the Court stated in Casey in 1992 (which upheld all abortion restrictions except the rule requiring that a woman notify her spouse), "the mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear." So, while the Court recognizes that pregnancy involves massive changes in a woman's body that affect her alone, those burdens have not been connected to the fertilized ovum.

The question the Court must then address is, who or what subjects the mother to those anxieties, physical constraints, and pain? The answer is: the fetus. For this reason, abortion rights must be based not only on a woman's right to choose to undergo an abortion, but also on her right to choose to undergo the enormous changes to her body which are wrought by the fetus.

From Choice to Consent Consent is our most basic right and the foundation of all relationships in our society and in our legal system. Your right to consent to what is done to your body or liberty composes the legal definition of harm, even if the action undertaken without your consent was a beneficial one. If you need a lifesaving operation, for example, and the surgeon proceeds without garnering your consent, that procedure can constitute legal harm. Similarly, parents of minors are obligated to care for their children and yet still have a right to consent when donations of an organ or blood from the parent's body are involved in their offspring's care. Even in the case of an attack by a mentally ill person, someone who had no intention of hurting you nor any understanding of what they did, the law would still recognize that your body or liberty was violated without your consent, thus constituting harm.

Individual consent in our society and our legal system is of primary importance. Bearing that in mind, if a woman does not agree to the ways a fetus affects her body and liberty, then, by definition, the fetus is legally harming her. To say that a medically normal pregnancy is a serious bodily injury is already established in the law in contexts other than abortion. It is termed "wrongful pregnancy." In civil cases, when a physician incompetently sterilizes a man or woman and pregnancy ensues, a woman can sue for hundreds of thousands of dollars, even if the pregnancy was medically normal, the child is born healthy, and the woman opts to keep the child rather than surrender it for adoption. This is because the pregnancy itself was non-consensual, connoting a serious injury. In criminal proceedings, wrongful pregnancy occurs when conception follows rape or incest. In such cases, the perpetrator receives punishments for the injury of non-consensu- al pregnancy that are additional to those imposed for the rape or incest itself.

Pregnancy undergone against one's will is quite a violation, hi medical terms, even a normal pregnancy is an extraordinary condition. Hormones may rise to 400 times their base levels. A woman's respiratory system drastically changes, causing a 40 percent increase in cardiac volume and a 15 percent increase in blood pressure. A new organ is grown in a woman's body, the placenta, and her entire circulatory system is rerouted in order to make her blood supply usable for the growing fetus. Given the quantity and quality of the effects of a fetus on a woman's body and liberty, if a woman does not consent, that fetus is massively harming her.

Put another way, imagine what would happen if someone injected Justice Scalia with 400 times the base level of a hormone, or placed a new organ in his body. Without consent, we would all agree that the Justice was being seriously injured, and it's a sure bet that Scalia himself would be on the phone calling for government assistance in defending himself against such massive, nonconsensual changes to his body, and his liberty. So, too, with pregnancy.

One can argue that if a woman consents to intercourse, by implication sh< has consented to pregnancy. But even in legal terms, this is not true. Sex is not the same condition as pregnancy, it only creates the risk that pregnancy will occur. The law does not require a person to consent to injuries just because that person consented to take a risk. A person who walks down a dark alley late at night risks being injured by an attacker, for example, but that does not obligate the pedestrian to consent to the injuries of an attack. On the contrary, no one ever loses the right to consent to how others affect one's body and liberty.

When a fetus affects a woman's body and liberty in pregnancy without consent, the changes are so massive, they meet the standards currently set in law for the use of deadly force in selfdefense. States currently recognize three contexts where deadly force is justified: when one is threatened with death; when one is threatened with a serious bodily injury (defined as damage or loss of use of an organ or limb for a protracted period of time, such as six weeks); and the invasion of one's liberty, such as in kidnaping, rape, or slavery. Deadly force, of course, is justified to stop the fetus from threatening a woman with death. But deadly force is also justified to stop the fetus from imposing the massive number of changes ocurring in even a normal pregnancy, if a woman does not consent to those changes. The fetus also profoundly affects a woman's liberty when she is pregnant, so that without consent, pregnancy is similar to kidnaping or enslavement. A pregnant woman, after all, is forced to be with the fetus at all times and be responsible for it, yet she cannot control its actions on her body.

From Rights to Funding Abortion rights are currently based on the due process right of choice, or privacy, which is the right to control your body without interference from the state. Unfortunately, the right of choice generally does not obligate the government to provide funds for you to exercise that right (just as the right to choose who to marry does not obligate the government to pay for your wedding). However, if abortion is approached not as a woman's right to choose what to do with her own body, but as her right to consent to the way the fetus, as a state-protected entity, affects her body, then new constitutional issues are raised.

The law already recognizes that non-consensual pregnancy construes a serious violation and a wrongful pregnancy. It can then be argued that when a fetus affects a woman's body without consent, it seriously harms her. The constitutional issue now is the government's response to the fetus's harm.

The equal protection guarantee in the Constitution obligates the government to provide the same assistance to people who are similarly situated. Thus, if the government provides assistance to some people who are harmed, the government is constitutionally obligated to provide assistance to others who are harmed.

Currently, the government spends taxpayers' money to stop someone from stealing even five dollars from another citizen. The government can do no less for pregnant women. Five dollars is a minor offense, particularly when compared to having one's body hijacked for nine months. It is an injustice for the government to protect one citizen from a petty thief and yet allow the much greater violation of an unwanted pregnancy to carry on in another citizen. By law, they must offer the taxpayer protection; in this case, an abortion.

Starting with Roe itself, the Court has bent over backward providing the constitutional protection of the fetus. Those means of protecting the fetus cannot deny a woman her constitutional right to equal state protection of her bodily integrity and liberty. The constitutional path to abortion rights via Roe was a critical one, but subsequent decisions have revealed it to be a route that is narrow and easily obstructed. Basing abortion rights on a woman's right to consent to pregnancy opens a new constitutional door in the struggle to keep abortion legal and available. And beyond that portal lie both the right to choose an abortion, and also the constitutional right to governmental aid in receiving one.


Eileen L. McDonagh is a Visiting Scholar at the Murray Research Center at Radcliffe College and an Associate Professor of Political Science at Northeastern University. She is the author of Breaking The Abortion Deadlock: From Choice to Consent (Oxford University Press, 1996). She has donated this article to On The Issues without fee for the pro-choice cause.


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