Some say a fetus is a person with a right to life. I can accept that argument (though that is a religious sentiment rather than a biological statement). But let’s explore it.
Rights are never absolute. This is usually phrased something like “your right to swing a fist ends at my nose”. There are always competing rights to be balanced. In this case, it would be the posited rights of the fetus versus the rights of the person who might be forced to host that fetus
There are a lot of situations in which a “right to life” is not absolute.
When a patient is on life support in the hospital, and the prognosis is hopeless, the hospital can “pull the plug”, and remove life support. The patient’s “right to life” is superseded by the right of the hospital to utilize resources as they see fit. We don’t say the patient is being killed, we say they are “allowed to die”. But there is a limit; if the patient is taken off life support and does not die, the hospital cannot now kill them. By proving they are viable *without life support*, their right to life is restored.
Suppose a patient needs a kidney or bone marrow transplant in order to live. That person has, in theory, a right to life, but that right does not include the right to order someone else to provide what is needed for them to live. If someone steps up to donate their organ, we consider them a hero. But we do not require anyone to make that sacrifice, nor do we call a potential donor a murderer if they refuse.
We recognize that there is a moral difference between killing someone and refusing to provide life support.
A fetus is not viable in the first trimester and most of the second. The fetus requires a womb for life support, or it will die.
But until we develop an artificial womb, the womb that the fetus needs for life support is attached to someone who also has rights. She will undergo irreversible biological changes, and some of them will change or even threaten her life. There are also mental and societal repercussions that will follow her all her life. Does she have the right to refuse to provide that life support?
As Americans, we tend to look for an enumeration of our rights in the Constitution. Many rights are implied rather than enumerated, something Justice Alito danced around in his opinion. There is no "Right to Privacy" in the Constitution, even though it can be inferred from the 1st, 3rd, 4th, 5th, 9th and 14th Amendments.
However, the 13th Amendment to the US Constitution explicitly says:
Amendment XIIISection 1.Neither slavery nor involuntary servitude, except as a punishment for a crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.Section 2.Congress shall have the power to enforce this article by appropriate legislation.
Isn't being forced to, not just provide, but BE the life support system for someone, a case of involuntary servitude?
And doesn't section 2 explicitly state that enforcing this right is a federal responsibility and not something to be left to the individual states?
Someone needs to challenge the radical first-term anti-abortion laws on the basis of the 13th Amendment.
Amendments that imply a Constitutional right to Privacy (the following is excerpted from FindLaw):
ReplyDeleteFirst Amendment: Provides the freedom to choose any kind of religious belief and to keep that choice private.
Third Amendment: Protects the zone of privacy of the home.
Fourth Amendment: Protects the right of privacy against unreasonable searches and seizures by the government.
Fifth Amendment: Provides for the right against self-incrimination, which justifies the protection of private information.
Ninth Amendment: This amendment is interpreted to justify a broad reading the Bill of Rights to protect your fundamental right to privacy in ways not provided for in the first eight amendments.
Fourteenth Amendment: Prohibits states from making laws that infringe upon the personal autonomy protections provided for in the first thirteen amendments. Prior to the Fourteenth Amendment, a state could make laws that violated freedom of speech, religion, etc.
In 2012, the Supreme Court Justices made the unanimous decision reviewing the constitutionality of warrantless searches of cell phones, and the Court held that the personal information contained in cell phones and other handheld devices is just as worthy of constitutional protection as more traditional types of information and records.
Besides the 13th Amendment to the US Constitution, there is a section of the US Code that I think is relevant.
ReplyDeleteSection 1584 is aimed at human trafficking, but forcing someone who is unwilling to carry a fetus is certainly an instance of holding her in involuntary servitude.
Furthermore, forced pregnancy is sexual abuse. Limiting someone's ability to travel is kidnapping. Furthermore, if a pregnancy - involuntary servitude - leads to death, as it historically often does, then those forcing that person to maintain her pregnancy could be sentenced to life in prison.
Finally, attempting to stop people who are helping these women escape from involuntary servitude -- ie, those helping her get an abortion, or the doctors themselves -- is itself a crime under section (b).
Read the law yourself and see what you think.
Title 18-CRIMES AND CRIMINAL PROCEDURE
PART I-CRIMES
CHAPTER 77-PEONAGE, SLAVERY, AND TRAFFICKING IN PERSONS
§1584. Sale into involuntary servitude
(a) Whoever knowingly and willfully holds to involuntary servitude or sells into any condition of involuntary servitude, any other person for any term, or brings within the United States any person so held, shall be fined under this title or imprisoned not more than 20 years, or both.
If death results from the violation of this section, or if the violation includes kidnapping or an attempt to kidnap, aggravated sexual abuse or the attempt to commit aggravated sexual abuse, or an attempt to kill, the defendant shall be fined under this title or imprisoned for any term of years or life, or both.
(b) Whoever obstructs, attempts to obstruct, or in any way interferes with or prevents the enforcement of this section, shall be subject to the penalties described in subsection (a).