So, let's say that Roe v. Wade is overturned. . .

[xiphias]

Fundamentally, it seems to me that, while the right to privacy IS a vitally important issue, there's a more fundamental right that Roe v. Wade protects -- the right to control one's own body.

There is quite literally no right more fundamental than the right to do what you want to do with your own body, to the extent that it doesn't infringe on other people. And that sentence, right there, sums up the whole abortion debate in one sentence. If you think a fetus is a person, then restricting access to abortion is potentially justifiable, because you're weighing the rights of two people against each other.

However, f you think a blastocyst is in no reasonable sense a human being, as I, for instance, feel, then a restriction of access to abortion is simply an example of an abrogation of the most fundamental right a person can have -- the right to their own body.

Restricting access to abortion to a woman who wants one is therefore a way of forcing her to work on behalf of a third party -- the fetus (who may or may not have legal standing.)

Could you make an argument based on the 13th Amendment therefore?

For what it's worth: I think that that any law in reference to abortion is inherently a stopgap measure. The only reasonable solution is technological: artificial wombs.

Fundamentally, what should happen is that any woman who doesn't want to have her body used as an incubator for a parasite, for whatever reason, should be allowed to have that fetus removed and placed into an artificial womb in which it could grow to term.

If a fetus does have any sort of legal standing, such a step would protect its hypothetical right to existence, without removing the mother's non-hypothetical right to control of her own person.

Comments

[bradhicks.livejournal.com]

You're building an awfully elaborate framework to answer a question whose answer is already easily known. We know what would happen without Roe: abortion regulation would devolve to the states, and vary from state to state.

If you think you can get a 5 judge majority of "strict constructionists" to create an abortion right out of any other part of the constitution, I think you're at best excessively optimistic.

No, the more interesting question is what will they do when they realize there is no practical way for them to do it without striking down Griswold? And will even they have the guts to face a ticked off American public after they return the right to regulate contraceptives to the individual states?

[holzman.livejournal.com]

I think some members of this court are eager to overturn Griswold.

[bradhicks.livejournal.com]

I think they are, too, and not because of any particular animus towards contraception. (Except for Scalia, of course.) The whole "privacy right" thing makes their teeth itch, and not just because it's not an enumerated right in the Bill of Rights, but because they're profoundly uncomfortable with the idea that laws can't regulate private behavior. You can tell that much from reading the majority opinion in the decision that Lawrence v Texas overturned, Bowers v Hardwick.

As far as they're concerned, if the majority of society believes, whether for religious reasons or any other reasons, that what you're doing in private is sick, wrong, liable to hurt you, and liable to make you more likely to hurt others and do harm to the community, they feel like it ought to be perfectly legal for that majority, through the legislature, to outlaw your behavior. Don't forget Scalia's dimsissive comment in Oregon v Smith that while that kind of thinking is more likely to infringe on minority religions than the majority religion, he believes that that's an inescapable and acceptable consequence of living in a democracy. And he may well now have a 5-vote majority on his side over this.

On the other hand, the point's been made lately that many states now have more restrictive abortion laws than they had before Roe. Devolving it to the states doesn't necessarily mean more abortion restrictions, not automatically.