Women who regard themselves as feminists, or as part of the “women’s movement,” do not necessarily all have the same set of convictions, and it is a crude mistake to treat them as if they did. There are serious divisions of opinion within feminism over the strategies for improving the political, economic, and social position of women—for example, over the ethics and the wisdom of censoring literature which some feminists find demeaning to women. Feminists also disagree about deeper questions: about the character and roots of sexual and gender discrimination, about whether women are genetically different from men in moral sensibility or perception, and whether the goal of feminism should be simply to erase formal and informal discrimination or to aim instead at a thoroughly genderless world in which roughly as many fathers as mothers are in primary charge of children, and roughly as many women as men hold top military positions. Feminists even disagree over whether abortion should be permitted: there are “pro-life” feminists. The feminist views I shall discuss here are only those concerned with the special connection between a pregnant woman and the fetus she carries.
In the United States, during the decades before Roe v. Wade, feminists were leaders in the campaigns to repeal anti-abortion laws in various states: they argued, with an urgency and power unmatched by any other group, for the rights that Roe finally recognized. They have since expressed deep disgust with Supreme Court decisions that have allowed states to restrict those rights in various ways, and they have demonstrated in support of their position, risking, in some cases, violent injury at the hands of anti-abortion protesters. Nevertheless, some feminists are among the most savage critics of the arguments Justice Blackmun used in his opinion justifying the Roe decision; they insist that the Court reached the right result but for very much the wrong reason. Some of them suggest that the decision may in the end have worked to the detriment rather than the benefit of women.
Blackmun’s opinion argued that women have a general constitutional right to privacy and that it follows from that general right that they have the right to an abortion before the end of the second trimester of their pregnancy. Some feminists object that the so-called right to privacy is a dangerous illusion and that a woman’s freedom of choice about abortion in contemporary societies, dominated by men, should be defended not by an appeal to privacy but instead as an essential aspect of any genuine attempt to improve sexual equality. It is not surprising that feminists should want to defend abortion rights in as many ways as possible, and certainly not surprising that some should call attention to sexual inequality as part of the reason why women need such rights. But why should they be eager not only to claim an additional argument from equality but actually to reject the right to privacy argument on which the Court had relied? Why shouldn’t they urge both arguments, and as many others as seem pertinent?
Many of the various reasons feminist writers offer to explain their rejection of the right to privacy are unconvincing, but it is important to see why, not only because some of the mistaken claims on which they rest have been influential but in order to see why we must look for more convincing explanations. Professor Catharine MacKinnon, for example, a prominent feminist lawyer, argues that the right-to-privacy argument presupposes what she regards as a fallacious distinction between matters that are in principle private, like the sexual acts and decisions of couples, which government should not attempt to regulate or supervise, and those that are in principle public, like public health, foreign affairs, and economic policy, about which government must of course legislate. That distinction, she believes, is mistaken, and dangerous for women in several ways. It supposes that women really are free to make decisions for themselves within the private space they occupy, though in fact, she insists, women are often very unfree in the so-called private realm; men often force sexual compliance upon them in private, and this private sexual domination both reflects and helps to sustain the political and economic subordination of women in the public community.
Appealing to a right to privacy is dangerous, MacKinnon suggests, in two ways. First, insisting that sex is a private matter implies that the government has no legitimate concern with what happens to women behind the bedroom door, where they may be raped or mauled. Second, the claim that abortion is a private matter seems to imply that government has no responsibility to help finance abortion for poor pregnant women as it helps finance childbirth for them. (Other feminists expand on this point. Basing the right to an abortion on a right to privacy seems to suggest, they say, that government does all it needs to do for sexual equality by allowing women this free choice, which ignores the larger truth that any substantial advance toward equality will require considerable public expenditure on welfare and other programs directed to women.) MacKinnon argues that the Supreme Court’s 1980 decision in Harris v. McRae, which reversed Judge John Dooling’s decision that the Hyde Amendment prohibiting the use of federal funds to finance abortion was unconstitutional, was a direct result of the Court’s rhetoric about privacy in Roe v. Wade.
Is this persuasive? It is certainly true that many women are sexually intimidated and that a presumption of much criminal and civil law—that women who have sexual intercourse have either been raped or have freely and willingly consented—is much too crude, and the American law of sexual harassment has begun slowly to change (in part thanks to Professor MacKinnon’s work) to reflect that realization. But there is no evident connection between these facts and MacKinnon’s claims about the rhetoric of privacy. The right to privacy that the Court recognized in Roe v. Wade in no way assumes that all or even some women are genuinely free agents in sexual decisions. On the contrary, that women are often dominated by men makes it more rather than less important to insist that women should have a constitutionally protected right to control the use of their own bodies.
MacKinnon, it is true, disparages the motives of men who favor women’s right to abortion. Liberal abortion rules, she says, allow men to use women sexually with no fear of any consequences of paternity; allow them, she says, quoting a feminist colleague, to fill women up, vacuum them out, and fill them up again. But her suspicion of men who are her allies, even if it were well founded, would offer no ground for her taking a more critical view of the right-to-privacy argument than of any other argument for liberal abortion rules that men might support.
Nor is the second reason she gives against the right to privacy argument—that recognizing privacy in sex means that the law will not protect women from marital rape or help to finance abortions—any more persuasive, for she conflates different senses of “privacy.” Sometimes privacy is territorial: people have a right to privacy in the territorial sense when they are entitled to do as they wish in a certain specified space: inside their own homes, for example. Sometimes privacy is a matter of confidentiality: we say that people may keep their political convictions private, meaning that they need not disclose how they have voted.
Sometimes, however, privacy means something different from either of these senses: It means sovereignty over personal decisions. The Supreme Court long ago held, for example, that the constitutional right of privacy includes the right of parents of German descent to send their children to a private school in which German is taught. That is a matter of sovereignty over a particular parental decision that the Court believed should be protected; it is not a matter of either territorial privacy or secrecy. (It is true that in Griswold v. Connecticut one justice said that the law must not forbid contraceptives because if it did, policemen would have to search bedrooms. But he alone urged that rationale, and the Court explicitly rejected it in a decision soon after when it held that the right to privacy meant that teen-agers were free to buy contraceptives in drugstores.)
The right to privacy that the Court endorsed in Roe v. Wade is plainly privacy in the sense of sovereignty over particular, specified decisions, and it does not follow from the government’s protection of a woman’s sovereignty over the use of her own body for procreation that it is indifferent to how her partner treats her—or how she treats him—inside her home. On the contrary, a right not to be raped or sexually violated is another example of a right to control how one’s body is used. Nor does it follow that the government has no responsibility to assure the economic conditions that make the exercise of the right possible and its possession valuable. Recognizing that women have a constitutional right to determine how their own bodies are to be used is a prerequisite, not a barrier, to the further claim that the government must ensure that this right is not illusory.
The explanations that MacKinnon and some other feminists give for their opposition to the language of privacy do not go to the heart of the matter. But other passages in their work suggest a far stronger explanation: claiming that a right to privacy protects a woman’s decision whether to abort a fetus assimilates pregnancy to other situations that are very unlike it; the effect of that assimilation is to obscure the special meaning of pregnancy for women and to denigrate its unique character by overlooking it. The claim of privacy, according to these feminists, treats pregnancy as if a woman and her fetus were morally and genetically separate entities. It treats pregnancy, MacKinnon says, as if it were just another case in which two separate entities have either deliberately or accidentally become connected in some way, and one party plainly has a “sovereign right” to sever the connection if it wishes.
MacKinnon offers examples of other such cases: the relationship between an employee and her employer, or between a tenant on short lease and his landlord, or (in a reference to a well-known article about abortion by the philosopher Judith Jarvis Thompson that many feminists dislike1 ) between a sick violinist and a woman who wakes to find that the violinist has been connected by tubes to her body, an attachment that must be maintained for nine months if the violinist is to remain alive. MacKinnon insists that pregnancy is not like those relationships; in a striking passage, she describes what pregnancy is like from the perspective of a woman.
In my opinion and in the experience of many pregnant women, the fetus is a human form of life. It is alive…. More than a body part but less than a person, where it is, is largely what it is. From the stand-point of the pregnant woman, it is both me and not me. It “is” the pregnant woman in the sense that it is in her and of her and is hers more than anyone’s. It “is not” her in the sense that she is not all that is there.
Judith Jarvis Thompson, "A Defense of Abortion," Philosophy and Public Affairs I, No. 1 (Fall 1971).↩
Judith Jarvis Thompson, “A Defense of Abortion,” Philosophy and Public Affairs I, No. 1 (Fall 1971).↩