There is no reason – at least not in principle – why a polity couldn’t assign certain duties to some of its members but not others. For example, men, but not women, are subject to the draft. Nor, therefore, is there any reason why it couldn’t do likewise vis a vis certain rights. We could decide – in fact in the past we have – that men, but not women, are entitled to vote. And so on. Moreover we might decide – in fact we have – to place constitutional constraints on these differential assignments of rights and duties. But the right to control one’s own body, be it for reproductive purposes or for the exchange of pleasure, has never been among these constitutional protections.
More particularly, even the negative right to an abortion – i.e. freedom from state interference – or to have sexual relations with the partner of one’s choice, is not protected by the American Constitution. Nor could it be. These couldn’t be constitutionally protected because if a plague rendered all but a half dozen women in the world infertile, we’d have to expropriate their wombs for public use. And if homosexuality or pedophilia were so repugnant to public morality “we [could] suffer no homosexual or pedophile to live” – as was once the case vis a vis Papists – criminalisation might be the only way to keep us from killing each other.
In short, all rights and duties supervene on the material and ideological conditions that give rise to and/or countenance them. So only at our peril should those of us who are pro-Choice appeal to rights-talk — or, for that matter, who might be anti-Choice at least with respect to, say, intercourse with an infant. Better, I submit, to appeal to what constraints reasonable people, given their concern for their own liberties, should be willing to impose on others.
In my own view – but it’s only my own view – in North America in 2022, any enforceable constraint on the reproductive and conjugal behaviour of others is bound to be intolerably invasive. But as already noted, that’s not a constitutional claim. It’s a claim about the conditions of political civility. As such SCOTUS did right to overturn Roe. Reproductive freedom – and wait for it: conjugal freedom is bound to be next – should be decided not by SCOTUS but rather codified by Congress in law.
Too quick. The problem in America – not so, thankfully, in Canada – is that it’s constitutionally questionable whether Congress, i.e. the federal government, can override a state legislature on these and similar matters. In what Americans conceive as “their more perfect union,” matters of morality vary from state to state, and so the state should remain the jurisdictional repository thereof.
Again too quick. A constitutional union, by contrast, is meant to protect its citizens from precisely just such local vagaries. It took a constitutional amendment to get rid of the enslavement of black bodies in those states that countenanced it. So maybe it should be a constitutional amendment to trump the stupidity of those Republican ‘red’ states intent on enslaving women’s wombs.
Unfortunately there are too many such red states for such an amendment to be ratified. So what I’d like to see – though I know I won’t – is the fathers and brothers and partners of these women to man up and start shooting any agent of the state who’d presume to enforce this re-enslavement of these wombs. After all, respect of the law is one thing. Respect for these kinds of laws – not unlike the gendarme in occupied France – is just complicity.