The Supreme Court has ruled that the legality of contraception as well as abortion in America is based on a supposed Constitutional right to “privacy.” This has generated quite a bit of controversy, because the Constitution does not specifically describe a right of “privacy” per se. Rather, the Court ruled that privacy is “implied,” “inferred” or “derived,” it is a “penumbra” emanating from other rights which are actually spelled out. This sounds pretty vague and mysterious and has understandably been attacked by those who prefer a strictly literal interpretation of the Constitution. I am not going to address this “penumbra” argument, since I am not a constitutional scholar and many people far more qualified have already done so, at great length. Instead, I refer to a simpler, more concrete model of “privacy” which is based on private property rights, beginning with self-ownership. The Bill of Rights clearly supports this in its references to property including one’s home, person and possessions (amendments 3, 4, 5 and 14), as well as one’s labor (amendment 13).(1) But, what do we mean by “private property” and what could it possibly have to do with pregnancy?
Private property is the basis on which our capitalist society is built, and is fundamental to our American way of life, so much so, that perhaps we take it for granted because we cannot imagine it being any other way. Rather than going into a complicated legal discussion, let’s look at some examples of how private property works in our everyday life as Americans. You own a cell phone. Somebody wants to make a call; can he use your phone? He can if you give him permission; otherwise, he cannot. But, what if it is a really important call that he desperately needs to make?! If it is an emergency, you would probably let him use your phone, or at the very least, offer to make the call for him. But you are under no legal obligation to let someone use your phone; because it is your property, you can decide who uses it. What about your car – can somebody use it whenever they want? Of course not! They need your permission. Again, what if it is an emergency, if for example, they need to take their child to the hospital? You might decide to let them borrow your car, or you might offer to drive them to the emergency room yourself. But the law does not require you to do so. You own the car and nobody else has the right to drive it or to demand that you drive them somewhere. In fact, if someone does use your phone, or your car, or another item that you own without your permission, it’s called “stealing.”
An example of private property that is specifically spelled out in the Constitution is your home. In America, nobody can stay in your home without your permission. In fact, if someone is on your property uninvited it is called “trespassing” and they can be arrested. But what if they are homeless and have nowhere else to go? What if, in fact, it’s the middle of winter, they have no coat, and they are starving? You have an extra bedroom and a kitchen full of food; doesn’t a person have a right to food and shelter?! Does a homeless person have a right to live? Well of course they do, you may say – but not necessarily in MY house! If you are a compassionate person you may give them a hot meal, perhaps a coat if you have one to spare, and then try to find them a place at a homeless shelter or some other accommodations, but again, you are under no legal obligation to do so. But, what if the legal situation was different?
There are lots of people homeless today due to the hard economic times. What if Congress were to pass a law that you were required to house, feed and clothe any person who showed up on your doorstep, or if they managed to somehow get into your house they would have “squatter’s rights” and you could not evict them? Ridiculous, you say. That could never happen here in America! Well, maybe not. At least, not unless we go a whole lot farther down the road to socialism, where some say we are headed. But it has happened in other places. Cuba, for example.
There is a saying: “From each according to his ability, to each according to his need.” That sounds pretty nice; is it from the Bible, or perhaps the Constitution? No; in fact it is from Karl Marx, and it is the basis of the communist philosophy! In a communist society, the homeless person automatically has a right to live in your house simply because he needs a place to live; your house is no longer really “yours,” it belongs to society. Everything belongs to everybody. When Che Guevara (the beatnik-looking communist fellow whose famous bearded face now ironically appears on popular capitalist mass-marketed t-shirts!) helped Fidel Castro take over Cuba in the Revolution in 1959, one of the first things they did was to take all the mansions which formerly belonged to the wealthy, and turned them into apartments for the indigent poor. If the owners of the mansions objected they were killed. I saw this on a PBS documentary where they showed the converted mansions/apartments and interviewed some of the people who lived there, and those who had lost their homes and survived to tell about it. Needless to say, the poor people who had been living on the street and then were given an apartment in a mansion thought it was wonderful and considered Fidel their savior, whereas, the former owners of the beautiful homes naturally felt robbed and violated. This is a central theme in the history of communist revolutions: There is no more private property, the government takes everything and redistributes it to everyone who needs it. In addition, your life and labor are no longer your own; the government tells you where you will live, what job you will do, and even whom you will marry and whether and when you will have children, and how many. Under communism, the desires of the individual are irrelevant and you do not live for yourself; rather, everyone works together for the good of society and places the needs of their comrades before themselves. Kind of like the Borg on Star Trek. Some say that this is how it should be. Indeed, this is how the early Christians lived, long before Marx ever thought of it. (2)
I, however, prefer our capitalist society despite its many flaws. Capitalism as it exists today is by no means perfect and I have several complaints about various aspects of it and the injustices thereof, which perhaps I will address in another blog in the future. But, getting back to the matter at hand: For good or ill, we live in a quasi-democratic society based on private property and individual freedom.
Should you donate money to the poor? Absolutely! Should the government take your money and redistribute it to the poor? When put in those terms, all of the sudden we Americans, especially conservatives, have a problem with it.
Suppose you are asked to participate in a big construction project, like building houses for people who lost their homes during hurricane Katrina. Although it is a good cause, you don’t want to participate because you prefer a different type of work, you already have a job that you enjoy, or perhaps you are busy being a full-time mom. You cannot be forced to work on that construction project against your will because that would be “slavery,” which is illegal in America. Your labor belongs to you.
Should you donate blood? There is always a need for blood donors. What about donating a kidney – you can survive with only one, and the surgery isn’t all that risky, and there are people on dialysis who need a kidney. What about bone marrow? There are people dying of lymphoma who could really use yours. It would be very charitable of you to help save these peoples’ lives. But, you are not required to donate your body parts, because your body belongs to you.
Likewise, nobody is allowed to have sex with you against your will. It doesn’t make any difference if they get it over with quickly and don’t particularly harm you in the process. They cannot so much as touch the “private parts” of your body without your permission. This is something we learn when we are children, and perhaps we take it for granted because it seems so obvious.
Our home, our money, our property, our labor and our bodies belong to ourselves.
Years ago I saw a bumper sticker that said: “The most dangerous place in America is inside the womb.” Pro-life activists talk about “babies being murdered in the womb.” The literature includes cute drawings of fetuses with the proportions and features of full-term babies, smiling and waving their little hands from inside of a rounded vessel or bubble of some kind. “The womb” is referred to as a sort of limbo, a region like New York, or a building like The Mall, or a playground or some other place where unborn babies hang out minding their own business until evil women go there to murder them.
But “the womb” is not a public place. What seems to be completely overlooked in the discussion of abortion is that “the womb” is actually a very private part of a woman’s body. This is not shown in detail on the drawings both because it would be considered pornographic and also because it would remind us that the fetus is inside of a woman’s body. The womb is her property, and therefore nobody is allowed inside without her permission.
Now, some conservatives argue that a woman’s “choice” is made when she decides to have sex. But, that is like saying any time you invite someone over for dinner, or allow a person to come into your house for any other reason, you are thereby giving them permission to plunder your home, or to live there and be supported by you for 9 months, which clearly is absurd. Of course, you should not invite random strangers into your home when you do not know their motives, nor should people engage in casual sex without protection. We must be responsible and take reasonable precautions in safeguarding our homes as well as our bodies.
Surprisingly, some of the most passionate advocates of capitalism and private property, are also the most strongly opposed to a woman’s right to decide what happens inside her own body. They do not hesitate to say that a man’s home is his castle, that nobody has a right to be in your house or set foot on your property without your permission, and they will even support your right to shoot an intruder, yet in the same breath they say that an unwanted fetus has an absolute right to live inside a woman’s body for 9 months. And it is ironic that the pro-life movement compares abortion with slavery, since forcing a woman to carry a pregnancy to term and deliver a baby against her will is clearly involuntary servitude. (3) By making abortion illegal they would reinstitute forced breeding, which was one of the cruelest and most dehumanizing aspects of slavery.
Pro-life advocates claim that a zygote (fertilized ovum) is a “person” from the moment of conception and therefore should have the same rights as any born person. This is a very deep and complex issue which involves the definition of “personhood” and things which cannot be determined scientifically, such as when does the soul enter the body, which was traditionally called “quickening.” The modern view, however, is that it doesn’t matter when the fetus gets a soul, or even if we have souls at all! Rather, a human being is merely an animated bag of genetic material made from unique DNA, period. This materialistic view of the human person is even being promoted by some Christians. I find this a bit odd, since I thought as Christians we believed that we are eternal souls who continue to exist after our body dies and will one day be re-clothed in our glorified body in heaven, but perhaps I am just old fashioned. In any case, the whole concept of “personhood” can be and has been debated at great length and like most metaphysical debates, is unlikely to be resolved any time soon. For the sake of our present discussion of “privacy” and “rights,” however, I don’t think it is necessary to establish. Although it may be dubious, let us suppose for the moment – just for the sake of the argument – that a fertilized ovum is, in fact, a full-fledged “person” with the same rights as already-born persons.
The pro-life position, however, actually gives the unborn person “rights” that no born person has, namely, the “right” to use an unwilling woman’s body for 9 months, to live inside her uterus, attach its placenta to her arterial blood flow, be oxygenated by her lungs and nourished by her food, and use her kidneys to process its wastes, and at the end of that time to make her go through labor and endure considerable pain, as well as any bodily injury that might result from the birth process. That an unborn person could have the right to do all this, in a society where an already-born person is not even allowed to briefly touch your “private parts” or to sleep in your bed for 1 night, and certainly not to live in your house, wear your clothes and eat your food for 9 months without your permission, is remarkable. Furthermore, by granting the fetus these rights, we necessarily take away the rights of the woman to ownership of her body, as well as the right to resist involuntary servitude. So, any woman of childbearing age would become a second-class citizen; her womb and her labor would belong not to herself, but to the offspring of any man who managed to impregnate her with or without her consent.
It is often argued, “but the baby’s body belongs to it!” Well, not really. Where, after all, did that body come from in the first place? The ovum, which comprises over 90% of the zygote’s mass, came from the woman’s ovary. The sperm from the man contributed half the DNA, although just a tiny fraction of the mass. As the fertilized egg divides, develops and forms into an embryo and later a fetus (assuming it is one of the approximately 40% or fewer which in the natural course of events make it to that point), all the new cells that build the body parts are formed out of that original egg using the nutrients which the fetus receives from food the woman ate. Thus it could be argued that the materials comprising the fetus’ body belonged to the woman and were used without her permission, except for the solitary sperm cell, of which if it got there as a result of failed protection, the man also was not a willing donor. In any case it all began inside the woman’s body.
Finally, let us remember that the purpose of abortion is not ultimately to kill the fetus; rather, it is simply to remove the fetus from the body of the unwilling host. What if it were possible to gently remove the fetus from the woman’s body without harming it (4) – would that be acceptable from the pro-life standpoint? No, it would not, for the simple fact that the fetus, at least until quite late in the pregnancy, is completely unable to survive outside of a woman’s body. It cannot eat, digest, or even breathe on its own. So what the pro-life movement requires of the woman is not merely that she refrain from killing the fetus, but rather, that she provide it with the environment and all the materials it needs in order to live. The fetus needs a womb; therefore, the woman is obligated to let it use hers. “From each according to his ability, to each according to his need.” But, wait – as we have seen, this is not a principle of American society. Our constitutional “right to life” does not include a right to make other people give us things. If it did, America would be very, very different. People would be entitled to everything they needed to live, including food, clothing, shelter, medical care, and so on, which clearly is not the case. If we lived in a communist society it might seem reasonable to force a woman to gestate and deliver a baby for the common good. But, not in a capitalist society where no person can even use a man’s cell phone, much less his home, his body or his labor, without his permission.
(1) Cato Policy Report, vol. XV, no. 1, January/February 1993, “Dissolving the Inkblot: Privacy as Property Right” by Sheldon Richman http://www.cato.org/pubs/policy_report/richman.html
"It is a model of privacy re-anchored in natural property rights (beginning with self-ownership). That the propertarian model of privacy has the full force of the Constitution behind it is evident in the purposes listed in the preamble to the Constitution, in the recurring express references to property, and in the protection of unenumerated rights in the Ninth Amendment."
(2) (Acts 4:32, 34-37 and 5:1-4).
(3) The organization Anti-Slavery International defines slavery as "forced labour.”
(4) As we shall see in the next segment, “The Gift of Life,” there may in fact be a way to do so! Stay tuned.