Friday, September 26, 2008


The rationale of protecting women's health is exasperating, because while it is certainly better to have a right to abortion than not to have one, the courts' and legislatures' acceptance of this rationale is a high cost to pay, because it really is paternalist and antifeminist to be explicitly saying that women-- who are in the best position to know that a forced pregnancy could ruin their life-- don't know what is good for them.

Paternalism is the heart of most medical regulation, Dilan; You think that a cancer patient isn't in the best position to decide whether or not to use an experimental drug?

The law books are FULL of laws premised on the notion that people don't know what is good for them.

A major area of early reform of abortion law took place in the medical arena where physicians determined, in varying degrees, abortion was justified for health reasons. U.S. v. Vuitch suggests "health" can be quite open-ended as does modern culture overall.

As to paternalism, first as to Brett, matter of degree; as to Dilan, it depends WHO decides. Roe said the woman and her physician had the basic decision. And, this is not the matter of an "experimental drug." The safety vis-a-vis childbirth or in general is well determined.

As to Anita Allen and privacy, this is too limiting:

The Supreme Court used the idea of a “right to privacy” to get women out of the kitchen, and to give them the capacity to control their fertility.

Privacy goes much further than that, and the SC and/or individual members repeatedly spoke of a "right to privacy" or some similiar term long before Griswold outside of any feminist context.

Justice Brandeis' famous dissent in Olmstead was not even about fertility. Likewise, his famous law review article also suggests "privacy" is a core aspect of things clearly protected by the Constitution.

Control of fertility true enough also includes "conservative" choices (just ask women in China), but given the breadth of privacy "to protect man, his individuality, and his conscience against direct and indirect interference by government" (Douglas, speech years before Griswold), tying it to reproductive or sexual rights is too limiting and problematic.

The Japanese ceremony to honor embryos/fetuses aborted or miscarried suggests the complexity of abortion for most people, other than those who wish to simplify it. It reminds me actually -- the comparison might seem off -- those who honor the animals who lost their lives for a meal.

Some think properly honoring the animals requires vegetarianism. Others believe differently, but this does not suddenly mean they hold the animals to have no value worthy of respect.

A look at the various religions practiced in this country that accept a legal and moral choice to abort in various cases underlines this point.

My lead sentence is off.

It was not just physicians who focused on health; clearly, women themselves and their advocates in general joined in the effort too.

BTW, surely patternalism was and is clearly mixed in too. I do not wish to imply otherwise. But, protection of women's health goes beyond that and is important, if only going so far. In some places in the world, it doesn't go far enough.

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