The asymmetry of reproductive freedom.
The feminist establishment is in an uproar over the appointment of Judge John Roberts to replace retiring Justice Sandra Day O?Connor. In their minds, the abortion license established by Roe v. Wade is sacrosanct. But I believe the very concept of reproductive freedom is dangerous illusion that has brought misery to millions of people. The series of Court cases which created this illusion increased access to both contraception and abortion. These cases did indeed, allow people to change the probability of a live baby resulting from any sexual act. It would be a defensible intellectual position to claim that people are entitled to use new technologies to change these probabilities. But under feminist tutelage, the social norms and constitutional interpretation around sex and conception have morphed into a much stronger demand: We now believe that we are entitled to have sex without having a live baby result.
But this is far less appealing than ?the right to choose.? The various euphemisms such as ?reproductive self-determination,? and ?reproductive justice,? vastly overstate what government can provide. The government cannot assure anyone that they will achieve their reproductive goals. This so-called freedom is a negation: it is only the right to say ?no? to a baby.
Changed Probabilities, not Absolute entitlements
In the 1972 case, Eisenstadt v Baird, the Supreme Court began to exaggerate its capacities. This case broadened the right of unmarried individuals to have access to information about contraceptives. The Court stated:
?The marital couple ...is an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right to be free from unwarranted government intrusions into matters so fundamentally affecting a person as the decision whether to bear or beget a child.?
Legal impediments to the flow of information may amount to ?unwarranted government intrusion,? into an admittedly very personal decision; fair enough. However, allowing people full access to information does not completely remove all barriers to the personal decision of ?whether to bear or beget a child.? All the information in the world about the most sophisticated forms of contraception does not assure that a person will be able to fulfill their reproductive plans. Contraception sometimes fails. People sometimes use it incorrectly, or intermittently. In these cases, the person?s ?decision? to avoid conception will not be fully realized. It is not any state interference, warranted or unwarranted, that thwarted the person?s ?decision,? but simply the probabilistic connection between sexual activity, contraception and conception.
So, the only way avoiding unwanted pregnancy while being sexually active is to have unlimited access to abortion. More accurately, I should say, this is the only way the state could guarantee the right to have sex without having a live baby. Perhaps it is not surprising that Roe v. Wade followed a mere year after Eisenstadt.
Affirming Roe in Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992, the Court continued this overstatement of its powers.
?The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives....?
But the ?control of their reproductive lives? that the Court promises through Roe is only a negative right. The Court did not, and in the nature of things, can not, establish the right to have a baby when you want to have a baby. Complete control over reproduction would be a fully symmetric right including a ?right to pregnancy? that corresponds to the right to terminate a pregnancy. The Court creates the illusion of far more control over reproduction than is really possible in a process as inherently probabilistic as achieving pregnancy.
Ask a thirty-five year old infertile woman whether she has ?the ability to control her reproductive life,? and she may just smack you. Her pain is all the more poignant if she has been contracepting for years. Perhaps she did organize her life around the promise of reproductive freedom. But she discovers, too late, that this promise is simply an illusion.
This is why I say that reproductive freedom is empty. It is based on a misunderstanding of the amount of control that is reasonable or desirable in a fully lived human life. We convince ourselves that we are entitled to control the timing and arrival of children. If that is so important to us, isn?t it equally important to control who those children are, what those children do, whether those children please us? But this is plainly both impossible and inhumane. Yet that is what we set ourselves up for, when we begin to think in terms of ?family planning.? It is more realistic to recognize that being sexually active exposes us to a whole host of possibilities, including pregnancy, whose ultimate results we cannot fully anticipate or control. Better to realize that the right to unlimited sexual activity without a live baby resulting is not an entitlement to which we should abandon every other good.