Community, Privacy, and Violence: Legal Abortion Endangers More Lives Than You Think

by Matt Cavedon

Today, hundreds of thousands of Americans marched in Washington to protest abortion. Over a hundred million more, in every state in the country, believe abortion to be the crime of killing unborn children. In Roe v. Wade, a decision issued forty years ago last week, the Supreme Court recognized a constitutional right to abortion—insisting that the community’s concerns about violence must give way to the right of “personal, marital, familial, and sexual privacy.” In Planned Parenthood v. Casey, protecting abortion from renewed legal challenge, privacy was said to specifically protect “the right to define one’s own concept of … the mystery of human life.”

Human Rights for AllBut Roe, Casey,and the cases following their logic are unique in American law. In other areas, privacy does not put what the community deems to harm others beyond the reach of the law. Child abuse takes place within the family, but it is a criminal offense. Sexually assaulting a spouse was defended for centuries on the grounds of marital privacy—now, it is increasingly considered the rape that it is. Jehovah’s Witnesses have made the private judgment that giving their children blood infusions runs against the human relationship with God—but the law has long recognized community’s duty to intervene on children’s behalf anyway. The otherwise consistent logic of the law—that privacy does not shield action from community concerns about violence—undermines abortion’s most important legal defense.

Take the case of child abuse. It often happens in the most private of places: the home. And it is often carried out by parents and other family members, who have the most private relationships with a child. Parents regularly form different personal beliefs about what is an acceptable amount of discipline and what rises to the level of unjust violence. And as early as 1869, the defense lawyer for a father accused of trapping his blind child in a cold basement in wintertime “argued that parents have the right to raise their children as they see fit.” The defense failed even then. By 1886, a Supreme Court justice was able to write that parental privacy is rightly overpowered by the community when “a father is guilty of gross ill treatment or cruelty towards his infant children.” What some parents saw as their right to privacy regarding how they reared their children held no sway against the community’s concern for child welfare.

Privacy was once held up as a defense of marital rape, too. Going back to at least 1736, the common law held that a “husband cannot be guilty of a rape committed by himself upon his lawful wife,” because she “cannot retract” the consent she gave to all sexual intimacy when she married him. The right to have sex with one’s spouse, whether they wanted it or not, was understood to be a necessary part of marital, familial, and sexual privacy. Supporters of women’s rights began to criticize marital rape in the nineteenth century. In the 1970s, the feminist case against the privacy defense—that it “protects and exacerbates the current distribution of power within a marriage,” instead of protecting the human rights of both spouses—started to gain momentum. Legal protections are still denied to too many women, but privacy as a defense of spousal violence is philosophically falling apart.

Still, one could object, abortion is different from parental or spousal abuse—people might disagree about the limits of violence, but no one thinks that it is okay. When it comes to abortion, folks have a fundamentally deeper disagreement—one about what Casey called “the mystery of human life.” It isn’t simply about drawing a line. It’s about existence itself.

Jehovah’s Witnesses claim to have an intensely personal belief about life itself, too—that it should not be preserved if keeping it alive means receiving a blood transfusion. They believe the Bible teaches them to “abstain from… blood,” and that to receive a transfusion violates their relationship with God. For adult Witnesses, that belief is protected by law. The larger community might think that they are harming themselves, but as long as they are willing to sacrifice for their beliefs, they can.

The law does not treat children of Jehovah’s Witnesses the same way. Their parents may hold whatever beliefs they choose to about the mystery and purpose of life. However, the law does not let Jehovah’s Witnesses prevent their children from receiving blood transfusions. The community believes that there is simply too much harm suffered by children from that decision to allow it—and sets aside the private beliefs of the parents to protect life. “Parents are granted wide discretion about the values they believe their children’s lives should embody,” as one scholar put it, “but parental discretion is limited in medical care when certain beliefs would disadvantage the child’s health,” or safety, in the eyes of the community. Even fundamental, religious private judgments about life are not enough when the community thinks that death is on the line.

The human right to have one’s life protected by law does not end at home, in the most intimate of relationships, or even when people disagree as to the purposes and limits of life. When the community sees its members being harmed by others, it has the power and duty to enact laws for their protection. A privacy defense of abortion rights is incompatible with this theory. But unless we want to leave children and spouses vulnerable, the theory must stay—and the logic of legal abortion must go.

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