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. 

Categories: Everything You Wanted to Know About What's Going On in the World But Were Afraid to Ask

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7 replies

  1. The US Supreme Court, in over-ruling Roe, did not say that women had no right to an abortion. They said that this was not a matter for judges to decide, but for elected legislatures. Theoretically, then, they didn’t decide the question itself, only who — which branch of government — should make that decision. Playing the democracy card, the majority in the Court said it should be the elected representatives in the state legislatures.

    But the key question is almost never been asked: Should any branch of government make that decision, or can it safely be left to individual choice?

    In decriminalizing homosexuality in Canada in 1969, Prime Minister Pierre Trudeau reportedly said “The state has no business in the bedrooms of the nation.” Today, after SCOTUS in Dobbs over-ruled Roe, we might say “The state has no business in the wombs of the nation.”

    Canada has had no law on abortion since 1988, probably the only Western country in this legal position. In those 34 years, there has been no political appetite to change that situation, probably because there is no evidence that if left alone to consult with their doctors, women are not making bad decisions requiring state control. Between 2007 and 2020 the number of abortions in Canada decreased by 25%, despite a growing population, and 87% of these were done in the first 12 weeks, all without any legislation. (See all the statistics here:


  2. I’m not sure if this is relevant but no state law actually enslaves any woman’s womb. No criminal or civil penalties of any kind are imposed against the pregnant woman who is seen to be one of two innocent victims of the abortion industry. The penalties all apply against the providers—doctors, clinic investors and employees, pharmacists—and in some cases the abetters of abortion. Since none of these actors is anywhere near as desperate to commit the offence as the woman is to receive it, they will all just close up shop and leave the state. Or go deep underground maybe—who knows? The landscape of abortion commitment is very different from 1973. I predict no doctors will want to do illegal abortions when they can do them legally a few states away, especially if they, unlike Henry Morgantaler, are female with children whom they can’t mother while in prison. Prescribing drugs in-state for illegal medical abortions sounds like an easy way to evade the law but it’s not. They will absolutely catch you. The woman meanwhile is free to have an illegal abortion if she can find someone or go out of state without penalty if she wishes and can. So far.

    So even if the relatives of the pregnant woman banded together fixing to shoot state agents seeking to punish her for having an abortion they would have nothing to do. The abortionist has left the building. Their time for heroic action was to stand outside the abortion clinic before it closed and enforce by force of arms its continued operation for all women, not just their own relatives who might never even need/want an abortion at all.

    Ruth Bader Ginsburg got this when she observed (as I recall before joining the Court) that Roe v. Wade was never really about a woman’s freedom to have an abortion. It was about doctors’ freedom to practise.


    • I’m not sure Leslie is right about this. I’m going to have my research assistant check to see if any of these criminal/civil measures target the woman herself rather than just her abettors.


      • Great. Burrowers beat dilettantes. There are so damn many of these laws you have to really want to read them all.
        Another assertion I’m open to being proved wrong on (for how could I not be open?) Even states that define a human being as beginning at conception allow post-coital contraception (“Plan B”) and the IUD, both of which may act as abortifacients but are commonly considered to be contraceptives. This exemption may be a nod to the Supreme Court’s ruling many years ago that the states may not prohibit the sale of contraceptives.


  3. Y’know Paul, I recall you saying in class that the overturning of Roe v. Wade would never happen due to the threat of domestic terrorism being a severe enough, foreseeable consequence. How has being proven wrong by the recent overturning of Roe v. Wade affected, if at all, your political worldview?


    • The late, disillusioned Phil Ochs might have the answer here, from 1967:

      (I’m sure it wouldn’t interest anybody, outside of a) Small Circle of Friends.


    • As was the case with Trump being elected in 2016, the invasion of Ukraine in February, and in so many other cases too numerous, let alone embarrassing, to mention, Bruce was right and I was wrong. The re-establishment of Gilead was entirely off my radar.


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