South Dakota's abortion restriction statute has received enormous attention, principally because its Section 6 forbids abortions "except as necessary to protect the life of a woman or if there is serious risk of substantial and irreversible impairment of major bodily functions." Less attention has been paid to its earlier Sections 1, 2, and 3, which provide in part:
At the beginning of human life, a person begins to exist and personhood is determined only by the fact that a person is a human being, and not by any other status, circumstance or factor. . . .The Legislature finds that since the United States constitution and federal court decisions have not resolved the question of the beginning of human life, it is within the power of this Legislature to do so. . . . The Legislature finds that a person in the stage of development from the beginning of life until birth, considered an unborn child, is . . . a human being who is in the state of development from the beginning of life until birth as a separate and distinct person.
This represents not just a frontal attack on Roe v. Wade (1973), as generally depicted in the press, but an ingenious effort to render Roe moot. If it is successful, the principle of choice will lose its utility as a basis for defending abortion rights; defenders will be compelled to seek a new and more robust principle on which to base their arguments. Such a principle exists, but before introducing it we must understand the real problem South Dakota's statute poses for Roe.
Roe is premised upon the Fourteenth Amendment's due process clause, which guarantees a constitutional right of privacy to make choices about fundamental aspects of one's life without government interference. These fundamental rights include the right to use contraceptives, to marry, to read books of one's choice, to choose schooling for one's children, and to terminate pregnancy by means of an abortion for any reason prior to viability-and, if a woman's health or life is in danger, after viability. But all of these due process clause privacy rights are based upon the assumption that their exercise does not entail injuring, much less killing, a human being. Thus, for example, the privacy right to walk where one pleases does not include the right to injure people by walking on top of their faces if they are lying on the ground.
How does that logic apply to Roe? Roe, premised on a due process privacy right to choose what to do with one's own life without government interference, is also premised upon the legal presumption that the fetus lacks the same legal or constitutional rights as a born person. Once the fetus acquires the same personhood status as a born human being-exactly what the South Dakota statute asserts-Roe no longer applies.
Constitutional-law scholar Laurence Tribe famously typified the abortion debate as a "clash of absolutes" between pro-life and pro-choice advocates. He defined the clash as centering not merely on whether a woman should have a right to obtain an abortion but more significantly on whether the fetus is a person or not. The question of what the fetus "is" becomes the basis for the clash, because pro-life and pro-choice advocates agree that abortion rights depend upon the personhood status of the fetus. In the context of the South Dakota statute, therefore, the real problem is this consensus that what abortion rights are is properly determined by what the fetus "is."
In the majority decision in Roe, Justice Harry Blackmun emphasized that abortion rights-which are based on due-process-clause privacy rights-are wholly dependent upon what the fetus "is":
The appellee [Wade] and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. . . . If this suggestion of personhood is established, the appellant's [Roe's] case, of course collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. [Emphasis added.]
For this reason, it is not surprising that the Court in 1973 refused to rule on what the fetus "is." Blackmun continued:
We need not resolve the difficult question of when [human] life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer. [Emphasis added.]
However, it is a new ball game in 2006. A growing number of state legislatures have provided expanded protections to fetuses-even pre-viable ones-against injuries occurring as a result of attacks on a pregnant mother. The Federal Unborn Victims of Violence Act (1997) makes it a separate crime to injure or kill a fetus during a violent crime against a pregnant woman, on the grounds that the fetus is a person from the moment of conception. Such legislation puts pro-choice activists on the defensive; they must oppose it, because legislation that defines the fetus as a person with separate rights from the woman sets Roe-in the words of Planned Parenthood president Gloria Feldt-"on its head."
In South Dakota, right now, a fetus has the same rights as a born person from the moment of conception. This is the issue that Roe sidestepped, but it can no longer be ignored.
What is an abortion? The American Bar Association and the State of South Dakota define abortion as "the intentional termination of the pregnancy of a woman known to be pregnant with knowledge insofar, with those means which, with reasonable likelihood cause the death of the fetus." An abortion, therefore, is not merely the "termination of a pregnancy." As far as I know, there are no constitutional restrictions or any state legislation that restricts women from making the decision to terminate their pregnancies. I did so myself when my first child was born; I had labor induced because my water had broken (a serious condition that can jeopardize the health of mother and child if labor is not induced). Beyond doubt, thousands of pregnant women routinely "terminate their pregnancies" by induced labor or other means in order to maximize the health and safety of mother and child.
Thus, let us not use the term termination of pregnancy as a stand-in for the term abortion. An abortion is the termination of pregnancy without the intention of producing a live birth. That is to say, an abortion entails the termination of pregnancy with the full knowledge that the fetus will be killed.
Those who support women's equality, including women's reproductive rights, are generally assumed to occupy the liberal end of the conservative-liberal continuum. Journalist William Saletan defines this continuum as follows: for conservatives, government is the major threat to personal freedom, while, for liberals, government is an ally to achieving political goals. For conservatives the most important realms of freedom are within institutions such as the family, communities, and businesses, while, for liberals, the most important site of freedom is the autonomous individual. Finally, when push comes to shove, conservatives give priority to traditional moral values such as heterosexuality and family values-including motherhood-rather than to freedom itself, whereas liberals assign priority to freedom as a prerequisite for determining one's moral stance on sexuality and family values.
As Saletan so brilliantly established in his Bearing Right: How Conservatives Won the Abortion War (2003), the political problem in the United States is that liberals adopted the conservative position to argue for abortion rights. That is to say, pro-choice advocates "repackaged" abortion rights in ways they could more easily "sell" to conservatives. Liberal activist groups such as the National Abortion Rights Action Legague (now NARAL Pro-Choice America) exploited conservative principles to argue that the major issue in abortion rights is "government interference" in a woman's right to choose. This strategy co-opted many moderate conservatives, persuading them to embrace a minimal defense of choice; but it also required pro-choice activists to abandon their efforts to secure government financial support to assist women in obtaining abortions. The result was that "Get the state out of my uterus" bumper stickers proliferated, while lobbying for abortion funding withered. At the same time, liberal pro-choice rhetoric adopted conservative ways of framing the stories it told about choice, depicting women who sought abortions as people just like everyone else who were situated within families, communities, and businesses rather than as autonomous, self-directed, feminist individuals.
As discussed above, the constitutional problem is that Roe itself established that, should the fetus acquire the same rights as a born person, the due process clause privacy right to choose what to do with one's own body will no longer justify obtaining an abortion, which kills the fetus. Where do we go from here? The answer is that we must reframe abortion rights politically and constitutionally on the basis of what the fetus "does" rather than merely what the fetus "is." When we do that, we will have the political and constitutional tools necessary not only to preserve a woman's right to an abortion but also to reestablish a woman's right to secure public funding for an abortion.
We must turn to a new argument for abortion rights, one based on the Fourteenth Amendment's equal protection clause. This argument establishes that, even if the fetus "is" a person, a woman still has a right to an abortion, as based on what the fetus "does." As I shall argue, to combat legislation such as the South Dakota statute, the key abortion-rights issue must be reframed from a woman's right to make choices about what to do with her own body to her right to consent to the way a state-protected entity, the fetus, affects her body and liberty when pregnancy results from the presence of the fetus in her body.
What is pregnancy, and how should we construe it in a context of consent? As defined in Black's Law Dictionary at the time of Roe, pregnancy is the "condition [in a woman's body] resulting from the fertilized ovum . . . beginning at the moment of conception and terminating with the delivery of the child." Of course, we often speak of pregnancy as a condition in which a woman "carries" a fetus, or a time period during which the fetus "develops," or as a condition that is "subsequent to sexual intercourse" (though not always, as with artificial insemination and in vitro fertilization)-and even as a condition that is "valued by society" (particularly, as constitutional law scholar Dorothy Roberts points out, if the pregnant woman in question is white or not on welfare). These are depictions, not definitions, of pregnancy, and they fail to capture pregnancy's most crucial dimension: the massive transformations of a pregnant woman's body and liberty that result from the fetus.
Constitutional law scholars Susan Estrich and Kathleen Sullivan note that, when a woman is pregnant, her uterus increases to 500 to 1,000 times its regular size, her pulse rate increases by ten to fifteen beats per minute, and her body weight increases generally by at least twenty-five pounds. They also note that even "the healthiest pregnancy can entail nausea, vomiting, more frequent urination, fatigue, back pain, labored breathing, or water retention." Sixty percent of the women who experience pregnancy "need treatment for some medical complication," and 30 percent "need treatment for major complications." What is more, when a woman is pregnant a new organ, the placenta, grows in her body, and her blood system is rerouted to make blood available to the fetus.
Though pregnancy can be a wonderful experience, it can also be dangerous. Worldwide, more than half a million women die annually during pregnancy or childbirth. The evolutionary biologist David Haig has described pregnancy as an adversarial, unconscious struggle between mother and child in which evolution favors those fetuses that can commandeer the most resources from their mothers' bodies.
Thus the fetus, simply by being alive in a woman's body, massively alters her bodily integrity and her liberty. In addition to the bodily transformations, no woman can ever be "alone"-that is, free from the fetus-for the extended period of nine months. What is more, during this period of time, the fetus uses the woman's reproductive capacities to serve its own needs. Whereas the fetus needs the woman's body to survive and grow, no woman needs the fetus to survive or to grow. Thus, in pregnancy, the reproductive capacities of the woman serve the fetus, not the woman.
The key issue in abortion rights, therefore, is not merely a woman's right to choose an abortion as a right to do with her own body as she pleases, but also her right to consent to pregnancy as the condition in her body that results from a fetus as a separate entity-even if, as now provided under South Dakota law, her pregnancy results from an unborn human being with the same rights as a born person. Such consent is by no means a foregone conclusion, as every pregnancy carries the risk of serious injury.
If consent is absent, what the fetus does to a woman-however unconsciously-constitutes serious injury. Indeed, the law defines injury in terms of consent: if a surgeon performs a life-saving operation on a patient who did not consent to that operation, in the eyes of the law, that surgeon has seriously injured that patient. So, too, with a nonconsensual pregnancy. If a woman does not consent to the massive transformations of her body and liberty that result from the fetus, she is being seriously injured by the fetus-even though it does so unconsciously. Thus, a pregnant woman who does not consent to pregnancy is similarly situated with other victims who are injured as a result of nonconsensual intrusions in their bodily integrity or liberty by mentally incompetent entities.
Courts, indeed, consider compulsory pregnancy as a result of rape as an injury. Moreover, statutes and court rulings also recognize that a woman is injured more severely if she becomes pregnant subsequent to a rape, as opposed to enduring only the rape itself. Namely, nonconsensual pregnancy is an additional injury, regardless of whether it is medically normal or abnormal.
Some might argue, of course, that when a woman consents to have sexual intercourse with a man, she implicitly consents to become pregnant, should that condition arise from her consensual action of engaging in sexual intercourse. However, the law clearly distinguishes between actions and conditions. Consent to an action that poses a risk does not imply that individuals must consent to injurious bodily conditions or impositions upon their liberty. We have to recall that, although sex is a means of having children, adults engage in sexual activity not only for this purpose. Furthermore, sex does not essentially entail pregnancy. Even when couples try to conceive a child, the odds of achieving pregnancy on any particular occasion are rather low. The probability of conception following a single act of intercourse is only .012, even when it occurs on a day of ovulation. Thus, it is fairly clear that consenting to sex is far from equivalent to consenting to pregnancy.
It follows that a woman who consents to the act of sexual intercourse with a man cannot for that reason alone be required by law to consent to the condition of pregnancy-a massive intrusion upon her body and liberty-any more than the right to consent to the act of sexual intercourse requires a person to consent to any other condition subsequent to that act, such as acquiring AIDS. Therefore, the fetus, by sustaining the state of pregnancy, can cause injury to the woman.
South Dakota bestows upon the fetus the same rights as a born person. Using that standard, we see that, even if the fetus has a right to life and even if the fetus is a person, it has no right of access to another person's body to meet its own needs-because no born person has such a right. For example, children have no enforceable right to so much as a pint of blood from their parents, much less to more invasive bodily donations, such as bone marrow or organ transplants. This holds even if such donations are necessary to save a child's life. What is more, if anyone were to try to take another person's blood or bone marrow, alter a person's organs, or otherwise intrude upon another person without consent, the government would step in to stop that nonconsensual intrusion.
Women, no less than men, have a right to bodily integrity and liberty that is so fundamental that it includes the right to self-defense against one's own offspring-whether that offspring is a fetus in the womb or a born child. Women are justified in obtaining an abortion, because the fetus has no more inherent right to use and massively transform a woman's body than does a born child. What is more, to the degree that the government assists other human beings in their self-defense against state-protected entities, the government is obligated to assist a woman in her self-defense against a fetus. If anything, since the entire police power of the state already clearly entails assisting people in their self-defense in relation to other people, defining the fetus as a person with the same rights as a born person strengthens, rather than weakens, women's right to government assistance, including financial aid, in obtaining an abortion.
The American Constitution does not mandate that the state must act to protect people from injury to their bodily integrity and liberty. However, the equal protection clause of the Fourteenth Amendment does mandate that the state must treat similarly situated people in the same way, particularly when state action involves fundamental rights, such as the right to make reproductive choices and the right to bodily integrity and liberty.
Of course, the government funds many institutions and services that help citizens protect themselves from nonconsensual intrusions. Such institutions as the police, the penal system, and the courts exist to maintain enforcement of laws that protect individuals against such intrusions. The government also funds shelters and a national domestic-violence hotline to aid battered women.
Since the government does protect people from injury resulting from acts of other human beings, the equal protection clause mandates that the state must protect women from the injury of a nonconsensual pregnancy. This means that a woman not only has the right to make a private choice to obtain an abortion, but that the government is obligated to assist her in obtaining one as the means necessary to protect her from injury in a way that is comparable to the protection offered by the government to other victims of injury. (It is important to note that in this regard the costs of abortion are substantially lower compared to those regularly incurred in the regular operation of the above institutions and services. In fact, it costs the government more to fund childbirth than to perform an abortion.)
Therefore, not only does a woman have the right of self-defense to stop the harm of a nonconsensual pregnancy, but based on equal-protection guarantees, she also has the right to state assistance to stop that harm. The result is a pro-consent constitutional argument for extending abortion rights to include public funding, at least for women who cannot otherwise afford it, that is to be distinguished from both the common pro-life and pro-choice perspectives.
Up until now, as threatened as women's reproductive rights have been, choice has always been the "bird in the hand" and consent the "two in the bush." With South Dakota's new abortion statute, however-and the others that will follow it-all that has changed. Now that fetuses in South Dakota have the same rights as born human beings, the Supreme Court can uphold the South Dakota legislation without regard to Roe, since Roe never guaranteed in the first place the right to choose an abortion if the fetus has the same rights as a born person.
It is time, therefore, to test the two birds in the bush. Constitutionally, consent is a stronger foundation for the right to bodily integrity and liberty than is choice. The Court has ruled, for example, that everyone has a right to consent to medical treatment-or not-even if refusing medical treatment results in one's death. On the other hand, however, the Court has ruled that no one has a constitutional right to choose medical treatment with the intention of causing one's death.
Politically, consent corresponds to a long history of women's acquisition of rights in relation to others, including intimates such as husbands and male sexual partners in general. Finally, every state in the country now recognizes marital rape as a crime, if and when a married woman does not consent to sex with her spouse. Similarly, women retain the right to consent to sexual intercourse even in compromised situations, such as when under the influence of alcohol, drugs, or otherwise rendered vulnerable.
We need to extend the consent trajectory to include pregnancy itself. Yes, pregnancy is wonderful when it is consensual, as can be sexual intercourse, taking a trip with a friend, or any number of other consensual conditions or activities. However, pregnancy is not wonderful when it is coercive, any more than sexual intercourse is wonderful when it is coercive (rape), or traveling is wonderful when it is coercive (kidnaping).
Included in this paradigm change, therefore, is the way we think of women, motherhood, and the government. Yes, women as mothers can evoke traditional values of relational association, but so, too, can we think of mothers as women who still retain their autonomous identity as individuals who have a right to consent to what is done to their bodies and liberty by other entities, including unborn human beings with the same rights as born human beings. And as for the state, it is time to get government involved in assisting women in defending their bodies and liberties in relation to an unborn human being in the same way the government assists people in defense of their bodies and liberties in relation to a born human being.
That means that the South Dakota legislation provides a mandate for introducing a consent to pregnancy foundation for abortion rights-to move beyond Roe to secure not only the right to choose an abortion but also the right to public funding of abortions.
Susan R. Estrich and Kathleen M. Sullivan, "Abortion Politics: Writing for an Audience of One," University of Pennsylvania Law Review 138.1 (November 1989).
Eileen McDonagh, Breaking the Abortion Deadlock: From Choice to Consent (Oxford: Oxford University Press, 1996).
Eileen McDonagh, "My Body, My Consent: Securing the Constitutional Right to Abortion Funding," Albany Law Review 62:3 (1999).
William Saletan, Bearing Right: How Conservatives Won the Abortion War (Berkeley, Calif.: University of California Press, 2003).
Laurence H. Tribe, Abortion: The Clash of Absolutes (New York: W.W. Norton & Company, 1992).
Robin West, "Review Essay: Liberalism and Abortion," The Georgetown Law Journal 87:6 (June 1999).
Carl Zimmer, "Silent Struggle: A New Theory of Pregnancy" (reporting about the research findings of evolutionary biologist David Haig) The New York Times, March 14, 2006.
Visit the Web site www.proconsent.org to join the Proconsent Coalition.
Eileen McDonagh is professor of political science at Northeastern University and a visiting scholar at the Institute for Quantitative Social Science of Harvard University. She is the author of Breaking the Abortion Deadlock: From Choice to Consent (Oxford University Press, 1996).
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