by Sherry F. Colb
For my Verdict column this week, I discuss a disparity in abortion arguments. The disparity is that the reasons that most people have for deciding to terminate a pregnancy (economic reasons, relationship reasons, emotional reasons) are different from the reasons that pro-choice feminists have for defending the right to terminate a pregnancy (the bodily integrity interest of the woman in being free from an unwanted physical occupation, sometimes coupled with the view that a fetus is less than a full person). Although the reasons occasionally align more precisely--such as where a woman seeks an abortion to save her life but wishes that she could have the baby--in general, a woman who seeks an abortion truly wishes for the embryo or fetus to die (rather than just to be free of the unwanted physical intrusion). Yet despite the disparity, I argue that the fact of the physical intrusion renders the woman's reasons for wanting to terminate less important than they would be in the absence of such a resulting physical intrusion.
The argument might seem puzzling if we consider other zones in which people can make decisions for some reasons and have those decisions honored, while they cannot make the same decisions for different reasons without running into legal trouble. To take one example, an employer (of a sufficient number of employees) may decide to fire an employee because the latter is sloppy or is widely disliked by others at work, but the employer may not (lawfully) decide to fire the employee because of the latter's race or sex. Similarly, an attorney may exercise a peremptory challenge to remove a juror from the venire because the attorney finds the juror unpleasant or because the juror is unemployed, but the attorney may not, as a matter of constitutional law, remove a juror because of the juror's race or sex. Why may women terminate pregnancies for bad reasons, while employers and attorneys may not make decisions, respectively, about whom to fire and whom to eliminate from juries for bad (illegal) reasons?
Some people would say that the answer is that women should not be able to terminate for bad reasons. For instance, the Pennsylvania law that was challenged in Planned Parenthood v. Casey included a provision prohibiting sex-of-the-fetus-motivated abortions, although Planned Parenthood chose (strategically) not to challenge that portion of the law. I would argue, however, that if the consequence of denying a person the right to make a choice, even for a bad reason, is that the person now must live with an extremely intrusive invasion of her bodily integrity, then the law must not deny the person the right to make the choice, even though the reason for it may be bad. Here's an analogy: people ought to have the right to decide with whom to have sex based on whatever reasons matter to them, regardless of how offensive, because the alternative is that people could be forced to have sex against their will, which is morally and legally unacceptable.
One way to manage the "wrong reasons" for intimate decisions dilemma is to hold that while people have the right to terminate a pregnancy for any reason and to decide not to have sex with someone for whatever reason they please, they do not have the right to have all the information on the basis of which they might like to make such a decision. This might mean that if a doctor suspects that a patient is planning a sex-selection abortion, the doctor could decide not to tell her patient the sex of the fetus (and the law, more generally, might keep such information from pregnant families, to the extent that sex-selection abortion became a problem in this country). Likewise, a man hoping to have sex with a woman or another man might omit information (such as racial background) that he suspects his partner might use as a basis for rejecting him. By keeping such information from people, at least in cases where we believe the people are not independently entitled to the information, we are able to simultaneously honor the right to avoid unwanted internal occupation (whether through pregnancy or sex)--no one would have to remain pregnant or have sex against her will--while precluding the person from making the choice for the wrong reasons.
There might be practical obstacles, of course, to keeping information from people (and some information is undoubtedly pertinent and unfairly kept from a pregnant woman or potential sexual partner). But by separating out the "knowing" of the information from the decision to terminate a pregnancy or to refuse a sexually intimate association, we can see the difference between a right to a sex-selection abortion and the right to an abortion, no questions asked, regardless of what the woman does or does not know.
Hiring and having people on a jury are far less intimate involvements with people. For that reason, it is acceptable to judge a person's rationales for firing or peremptorily challenging people. With a less intimate association on the line, the reasoning process becomes more salient and a more appropriate subject for judgment and legal prohibition.