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.
MacKinnon also cites the poet Adrienne Rich’s comment, “The child that I carry for nine months can be defined neither as me nor as not-me.”
By ignoring the unique character of the relationship between a pregnant woman and her fetus, by neglecting the mother’s perspective and assimilating her situation to that of a landlord or a woman strapped to a violinist, the privacy claim obscures, in particular, the special creative role of a women in pregnancy. Her fetus, MacKinnon argues, is not merely “in her” as an inanimate object might be, or something alive but alien that has been transplanted into her body. It is “of her and is hers more than anyone’s” because it is, more than anyone else’s, her creation and her responsibility; it is alive because she has made it come alive; she already has an intense physical and emotional investment in it unlike that which any other person, even its father, has. Because of these physical and emotional connections it is as wrong to say that the fetus is separate from her as to say that it is not.
All these aspects of a pregnant woman’s experience—everything special, complex, ironic, and tragic about pregnancy and abortion—are neglected in the liberal explanation that women have a right to abortion because they are entitled to sovereignty over personal decisions, an explanation that would apply with equal force to a woman’s right to choose her own clothing.
The most characteristic and fundamental feminist claim is that women’s sexual subordination must be made a central feature of the abortion debate. MacKinnon puts the point in a particularly striking way: If women were truly equal with men, she says, the political status of a fetus would be different from what it is now. That seems paradoxical: How can the inequality of women, however unjustified, doom fetuses—half of whom are female—to a lower status, and a lesser right to live, than they would otherwise have? This objection to MacKinnon’s argument, like so much else in the public and philosophical debate about abortion, presupposes that the pivotal issue is whether a fetus is a person with interests and rights of its own. The objection would be sound if that were the central issue—if the debate were about a fetus’s status in that sense. But MacKinnon’s point becomes not only sensible but powerful if we take her to be discussing a fetus’s status in the sense I have just discussed—as a creative achievement and responsibility. Then the crucial question is whether and when abortion is an unjustifiable waste of something of intrinsic creative importance, and MacKinnon’s point is the arresting one that the intrinsic importance of a new human life may well depend on the meaning and freedom of the act that created it.
If women were free and equal to men in their sexual relationships, feminists say—if they had a more genuinely equal role in forming the moral, cultural, and economic environment in which children are conceived and raised—then the status of a fetus would be different because it would be more genuinely and unambiguously the woman’s own intended and wanted creation rather than something imposed upon her. Abortion would then more plainly be, as many women now think it is, a kind of self-destruction, a woman destroying something into which she had mixed herself. Women cannot take that view of abortion now, some feminists argue, because too often sexual intercourse is, to some degree, rape, and pregnancy is too often the result not of creative achievement but of uncreative subordination, and also because the costs of an unwanted pregnancy are so unfairly distributed, falling so heavily and disproportionately on them.
This argument, at least put in the way I have put it here, may be over-stated. It takes no notice of the creative function of the father, for example, and though it shows what is objectionable in relying wholly on the concept of privacy to defend a woman’s right to an abortion, it does not prove that the Supreme Court was misguided in relying on that concept in deciding the constitutional issue in Roe v. Wade. After all, appealing to privacy does not deny the ways in which pregnancy is a unique relationship or the ambivalent and complex character of many pregnant women’s attitudes toward the fetuses they carry. In fact, the best argument for applying the constitutional right of privacy to abortion emphasizes the special psychic as well as physical costs of unwanted pregnancies. I do not believe, finally, that even a great and general improvement in equality between men and women in the United States would either undercut the argument that women have a constitutional right to abortion or obviate the need for such a right.
In spite of these important reservations, the feminist arguments of MacKinnon and others have added a very important dimension to the abortion debate. It is true that many women’s attitudes toward abortion are affected by a contradictory sense of both identification with and oppression by their pregnancies, and that the sexual, economic, and social subordination of women contributes to that undermining sense of oppression. In a better society, in which child rearing was supported as enthusiastically as abortion was discouraged, the status of a fetus probably would change, because women’s sense of pregnancy and motherhood as creative activities would be more genuine and less compromised, and the inherent value of their own lives less threatened. The feminist arguments reveal another way, then, in which our understanding is cramped and our experience distorted by the one-dimensional idea that the abortion controversy turns only on whether a fetus is a person from the moment of conception. Most feminists do not hold that a fetus is a person with moral rights of its own, but they do insist that it is a creature of moral consequence. They emphasize not the woman’s right suggested by the rhetoric of privacy, but a woman’s responsibility to make a complex decision that she is best placed to make.
That is explicitly the message of another prominent feminist lawyer, Professor Robin West, who argues that if the Supreme Court one day overrules Roe v. Wade, and the battle over abortion shifts from courtrooms to legislatures, women will not succeed in defending abortion rights if they emphasize privacy, which suggests selfish, willful decisions taken behind a veil of immunity from public censure. Instead, she says, women should emphasize responsibility, and she offers what she calls a responsibility-based argument to supplement the right-based claims of Roe.
Women need the freedom to make reproductive decisions not merely to vindicate a right to be left alone, but often to strengthen their ties to others: to plan responsibly and have a family for which they can provide, to pursue professional or work commitments made to the outside world, or to continue supporting their families or communities. At other times the decision to abort is necessitated, not by a murderous urge to end life, but by the harsh reality of a financially irresponsible partner, a society indifferent to the care of children, and a workplace incapable of accommodating or supporting the needs of working parents…. Whatever the reason, the decision to abort is almost invariably made within a web of interlocking, competing, and often irreconcilable responsibilities and commitments. 2
West is obviously assuming that the audience to which this argument is addressed has firmly rejected the view that a fetus is a person. If her claims were interpreted as proposing that a woman may murder another person in order to “strengthen her ties to others,” or because her husband is financially irresponsible, or because society does not mandate maternity leave, these claims would be politically suicidal for the feminist cause. West assumes what I have been arguing, that most people recognize, even when their rhetoric does not, that the real argument against abortion is that it is irresponsible to waste human life without a justification of appropriate importance.
West and other feminists often refer to the research of the sociologist Professor Carol Gilligan of Harvard University. In a much-cited study, Gilligan argued that, at least in American society, women characteristically think about moral issues in ways different from men.3 Women who are faced with difficult moral decisions, she said, pay less attention to abstract moral principles than men do, but feel a greater responsibility to care for and nurture others, and to prevent hurt or pain. She relied on, among other research studies, interviews with twenty-nine women contemplating abortion who had been referred to her research program by counseling services. These women were not typical of all women considering abortion; although twenty-one of them did have abortions following the discussions (of the others, four had their babies, two miscarried, and two could not be reached to learn of their decision), they were all at least willing to discuss their decisions with a stranger and to delay their abortions to do so.
One feature of the responses is particularly striking. Though many of the twenty-nine women in the study were in considerable doubt about what was the right decision to make, and agonized over it, none of them, apparently, traced that doubt to any uncertainty or perplexity over the question of whether a fetus is a person with a right to live. At least one—a twenty-nine-year-old Catholic nurse—said she believed in the principle that a fetus is a person and that abortion is murder, but it is doubtful that she really did believe that, since she also said that she had come to think that abortion might sometimes be justified because it fell into “a ‘gray’ area,” just as she now thought, on the basis of her nursing experience, that euthanasia might sometimes be justified in spite of her church’s teaching to the contrary. In any case, even she worried, like the others, not about the meta-physical status of the fetus but about a conflict of responsibilities she believed she owed to family, to others, and to herself.
The women in the study did not see this conflict as one between simple self-interest and their responsibilities to others but rather as a conflict between genuine responsibilities on both sides, of having to decide—as a twenty-five-year-old who had already had one abortion put it—how to act in a “decent, human kind of way, one that leaves maybe a slightly shaken but not totally destroyed person.” Some of them said that the selfish choice would be to have their babies. One nineteen-year-old felt that “it is a choice of hurting myself [by an abortion] or hurting other people around me. What is more important?” Or, as a seventeen-year-old put it, “What I want to do is to have the baby, but what I feel I should do, which is what I need to do, is have an abortion right now, because sometimes what you want isn’t right.” When she wanted the child, she said, she wasn’t thinking of the responsibilities that go with it, and that was selfish.
All of Gilligan’s subjects talked and wondered about responsibility, and not about murder. They sometimes talked of responsibility to the child, but they meant the future hypothetical child, not the existing embryo—they meant that it would be wrong to have a child one could not care for properly. They also worried about other people who would be affected by their decision. One, in her late twenties, said that a right decision depends on awareness of “what it will do to your relationship with the father or how it will affect him emotionally.” They talked of responsibility to themselves, but they had in mind not their pleasure, or doing what they wanted now, but their responsibilities to make something of their own lives. One adolescent said, “Abortion, if you do it for the right reasons, is helping you to start over and do different things.” A musician in her late twenties said that her choice for abortion was selfish because it was for her “survival,” but she meant surviving in her work, which, she said, was “where I derive the meaning of what I am.”
Gilligan says, in summary, “Here the conventional feminine voice emerges with great clarity, defining the self and proclaiming its worth on the basis of the ability to care for and protect others.” But her subjects talked of another, more abstract, kind of responsibility as well: responsibility to what they called “the world.” One said, “I don’t need to pay off my imaginary debts to the world through this child, and I don’t think that it is right to bring a child into the world and use it for that purpose.” Another said that it would be selfish for her to decide to have an abortion because it denied “the survival of the child, another human being,” but she did not mean that abortion was murder or that it violated any fetal rights. She put it in very different, more impersonal, and abstract terms: “Once a certain life has begun, it shouldn’t be stopped artificially.”
This is a brief but careful and accurate statement of what, beneath all the screaming rhetoric about rights and murder, most people think is the real moral defect in abortion. Abortion wastes the intrinsic value—the sanctity, the inviolability—of a human life and is therefore a grave moral wrong unless the intrinsic value of other human lives would be wasted in a decision against abortion. Each of Gilligan’s subjects was exploring and reacting to that terrible conflict. Each was trying, above all, to take the measure of her responsibility for the intrinsic value of her own life, to locate the awful decision she had to make in that context, to see the decisions about whether to cut off a new life, with its own intrinsic value, as part of a larger challenge to show respect for all life by living well and responsibly herself. Deciding about abortion is not a unique problem, disconnected from all other decisions, but rather a dramatic and intensely lit example of choices people must make throughout their lives, all of which express convictions about the value of life and the meaning of death.
June 10, 1993