Legitimacy in Uncertainty: Reproductive Rights in Context

Recent events make the legitimacy of reproductive rights an important question. On the one hand, we have a desire to prevent the vulnerability that unwanted pregnancy represents to women, and on the other hand we have a desire to protect the vulnerability that the life of a fetus represents. Given this conflict and the uncertainty it incites, why should reproductive rights be legally protected? In this paper, I make a case for the legitimacy of reproductive rights from a pragmatist standpoint as well as defend the character of that legitimacy over that of a ban on reproductive choice. The legitimacy of legal access to abortion is demonstrated by an appeal to Dewey's rejection of any nature/culture dichotomy. I then further defend this legitimacy as a function of what a lack of access to reproductive rights would mean and in fact has meant in the lives of women in the U.S.

Legitimacy in Uncertainty: Reproductive Rights in Context

Events of the last year regarding reproductive rights, specifically the legal right to abortion, suggest that the restriction of legal access to abortion may become a reality in my lifetime. In April 2004 President George W. Bush signed The Unborn Victims of Violence Act or "Laci and Conner's Law," making violence against a fetus a crime punishable by law in all 50 states. Moreover, currently the Supreme Court is split 5-4 in favor of legal access to abortion, but this narrow margin could disappear if President Bush appoints a Justice who shares his stance on the issue. Additionally, the recent push for a ban on partial birth abortions has provided a context in which to describe graphically the partial birth abortion procedure guaranteed to turn stomachs and gain anti-abortion support.

These events make the very legitimacy of making reproductive choices a pressing and timely issue on which to focus. On the one hand, we have a desire to prevent the vulnerability that unwanted pregnancy represents for women, and on the other hand on the other hand we have a desire to protect the vulnerability that the dependent life of a fetus represents.[1] Given this conflict and the genuine uncertainty that it incites, why should the legal right to make reproductive choices be protected?  In this paper, I want both to make a case for the legitimacy of making reproductive choices from a pragmatist standpoint as well as discuss the character of that legitimacy. First, I will suggest that one's evaluation of the legitimacy of legal access to abortion is a function of one's general comfort level with the actual reach of human decision-making. Next, I will make a case for the legitimacy of legal access to abortion by appealing to John Dewey's questioning of the hard and fast distinction between the "natural" and the "cultural." Finally, I will describe this legitimacy as a function of what a lack of legal influence on their own reproduction would mean and in fact has meant in the lives of women in the U.S. Throughout I mean to say that pragmatism, insofar as it attends to meanings-in-context as well as to the interdependency of human thought and action, offers an excellent framework in which to think about the legitimacy of legal access to abortion.

First however I do want to make one brief preliminary remark. I will be using the terms "right" and "rights" in a way that is completely consistent with the criticisms that pragmatists have recently made of the notion of rights as an extension of some "essence" or "nature" of humanity.[2] By reproductive right here I mean only to refer to that relative accessibility to reproductive choice that is currently legally supported in the US.

I want now to make use of a more familiar insight on the part of the classical pragmatist tradition: the recognition that meanings are always meanings in context. I want to suggest that there is a strong correlation in at least one case, that of the National Right to Life Committee, between evaluation of the legitimacy of abortion rights and comfort level with the actual reach of human decision-making. In making these points, I rely on the mission statement of a national anti-abortion organization, the National Right to Life Committee. Of course this brief look at the statements about abortion on the part of this group cannot address the countless ways of supporting an abortion ban, not to mention numerous religious supports. However, the official NRLC literature[3] provides a general statement of this group's belief in the illegitimacy of abortion rights that can be a foil to my pragmatic view discussed below.

The National Right to Life Committee, formed in 1973 in response to the Roe v. Wade decision, has as its mission statement "to restore legal protection to innocent human life."[4] On this surface, this mission is quite admirable— the protection of the innocent is at least one goal if not a primary goal of democratic legislation. Among their reasons for opposing legal abortion are the right of the fetus to continue growing—the right to, once conceived, be brought to term. They cite evidence of intense pain on the part of the fetus in partial birth abortion in particular. But the NRLC also cites the pain on the part of the woman carrying the fetus that abortion promises—as well as the potential emotional turmoil and risk of death caused by abortion procedures. They also sight an increased risk of breast cancer linked to abortion, especially in women pregnant for the first time and under the age of 18.[5]  However, these concerns for the pregnant woman conflict with the NRLC's opposition to legal access to abortion in that they believe that fetal rights always outweigh the desires or health concerns of the person on which that fetus's life depends. In fact, this makes their concern for the health and emotional well-being of women seeking abortion difficult to explain, insofar as their primary concern is not for the pregnant woman but for the fetus that she carries, especially since there is no recognition in the NRLC literature of the fact that these are often competitive interests. Problematically, they also do not admit that abortion is most often a freely chosen procedure, in which case medical side effects and even the risk of death on the part of the free chooser seem unlikely to persuade those in favor of making their own reproductive choices. This is the case especially since it is the threat of death due to "back alley," relatively unsanitary, relatively unsafe abortions that motivates many reproductive rights advocates.

At any rate, the NRLC has recently expanded this mission to protect innocent life, which originally referred solely to the lives of fetuses, to support for a legal ban on euthanasia. In other words, the NRLC supports the protection of life even when the individual doing the living has made arrangements to end her life. In support of this stance they cite, "Almost all who commit [or have the desire to commit] suicide have mental problems" as well as that "disorders [they cite alcoholism and depression] leading many to attempt suicide are treatable."[6] In the opinion of the NRLC there is absolutely no legitimate case for ending a life. This expansion of concern for banning abortion to banning euthanasia suggests that the NRLC is interested in promoting a "laissez-faire" approach to biomedical concerns. No matter what quality of life we consider or who is doing the living of that life, life is still "life" and must be preserved until something like "natural causes" end that life. In this way of putting the issue, life and the natural causes that guide and end life are something wholly different from human action that would inappropriately interfere with "life." I return to this point below, but here I want to point out that this juxtaposition of life and "natural causes" on the one hand and human action or interference on the part of human action on the other hand demonstrates—in fact proclaims—discomfort with human action. In this context, any introduction of human deliberation or consideration, particularly in the form of deliberation over reproduction, is an ostensible danger. Nature can do no wrong; human action is a potential danger against which "innocent human life" must be protected. And here, by the way, is what sets the NRLC's desire to protect innocent human life apart from the desires of democratic legislators: the NRLC is concerned to protect innocent persons from any and all human action and while democratic legislation seeks to protect the innocent from particularly identified unjust human actions. The NRLC is thus unapologetically concerned with defending "life," equated with "the natural" against any "unnatural" or we might say "cultural" interventions on the part of individuals or groups of persons.

In this framework, human decision-making and acting can of course influence "the natural," but this is generally unacceptable. In fact the more influential human decision-making is, the more unacceptable it is. For example, to influence life by giving it aspirin is not nearly as unacceptable as ending life. To influence life by taking a birth control pill prior to conception[7] is not nearly as unacceptable as taking an RU 486 pill following conception. What is important to note here is a point to which I return: that the NRLC does not consider their own prerogatives to ban abortion and euthanasia as themselves deliberation over reproduction and thus forms of influence on "life."

And so I want to suggest that one's understanding of the legitimacy of reproductive rights may actually represent or be another way of putting the degree of one's comfort with the amount of control that we actually have as humans to influence our lives and the lives of others. The NRLC's desire to protect "life" from human intervention demonstrates an open discomfort with the extent of human decision-making, to the point that they do not recognize the human decision-making that their own actions represent. Insofar as "life" in this context begins to sound like something wholly un-human, in which human deliberation has no part or at least should have no part, the NRLC sees itself as removed from those who would interfere with "life" by applying their decision-making to "life." In fact, in banning abortion, the NRLC applies human decision-making, in fact applies certain reproductive choices, in ways that will (to put it gently) alter the "natural" courses of life for countless women. The recognition of this oversight to which I now turn represents an alterative way of considering the legitimacy of abortion rights. Putting it this way, viewing the inevitable presence of reproductive choices in our lives with disgust or derision is actually an expression of distrust of women's ability to make appropriate reproductive choices for themselves.

This rejection on the part of the NRLC of all human decision-making relies on a clear distinction between nature and culture, which the pragmatist tradition has called into question. And so this is my second point. In the respects discussed in this paper, reproductive rights are a paradigm case of the mutuality of "life" or the natural and human decision-making or the cultural. Here I am teasing out from Dewey's rejection in particular of nature/culture dualisms[8] that aspect of culture that is human decision-making or human thinking with respect to genuine uncertainties such as the legitimacy of abortion. As I have already indicated in my presentation of the NRLC's reasons for opposing legal abortion, to speak of the "natural" or "life" as if it is something wholly different from human culture, something that must be protected from human decision-making, is actually a way of protecting certain practices which are in effect as "unnatural" as the practices that they would seek to prohibit. In other words, designating some human choices such as banning abortion as unnatural is a hypocritical "cultural" act that does in fact affect "nature" or the course of women's lives. The claim, that is often made, that abortion is not an acceptable form of "birth control" rests on this hypocritical claim. Insofar as we recognize that both the banning and the distributing of pre-conception or post-conception birth control are acts with natural-cultural repercussions, we recognize that as human agents our decisions are always already a constitutive part of that "nature" that the NRLC wants to section off. In this case, the role of human decision-making (in fact women's decision-making) cannot be something to be lamented or shunned or banned. It is something to be recognized as in fact the only "natural" or inevitable factor in our situation.

However, recognition of the mutuality of nature and culture merely restates our original question. Legitimacy per se does not lie in rejecting the NRLC's nature/culture dichotomy.  Instead, we now have a situation in which both original alternatives appear legitimate: the sanctioning of legal abortion (for the protection of vulnerable women) and the prohibiting of legal abortion (for the protection of a vulnerable fetus). How can we deliberate between these two legitimates?

Thus we have a contrast between the pragmatic approach that I have presented here and that of the NRLC. This contrast suggests that conflicting understandings of the relationship between nature and culture constitute the heat of the disagreements about the legitimacy of abortion in the U.S. And I do mean to suggest that this is at least in part the case. But I certainly don't think that that is all there is to one's understanding of the legitimacy of abortion. As I have said, legitimacy per se does not lie in a rejection of the nature/culture dichotomy set up by the NRLC. Recognizing the exhaustive interdependence of nature and culture only allows me to say against the NRLC that both the woman supporting an unwanted pregnancy and those wanting to protect the dependent life of a fetus have compelling interests. And indeed this results in a preliminary draw as to character of the legitimacy of making a reproductive choice that would privilege one of these interests over the other.

But the pragmatic tradition suggests another principle, that is, that we can arbitrate between two legitimates by giving attention to what they mean in context. And so, ultimately, I want to argue that the legitimacy of abortion rights rests on the extent to which we want to take seriously the testimonies of women and men whose life courses are contingent upon their ability to legally influence them through their reproductive choices. That is, I make a case here for abortion rights because I resonate with the protest of individuals that the particular social, economic, emotional and physical vulnerability or their absence hinges on the existence of legal reproductive choices. But also and perhaps more importantly because I want to live in a world in which it is feasible for women and men to prevent themselves from becoming socially, economically, emotionally and physically vulnerable. I want to live in a world in which it is feasible for women to be responsible agents who do not enter into the vulnerability that pregnancy promises because I consider the alternative—a world in which we all universally and eternally refrain from heterosexual sex—to be ridiculous and ignorant of the sexual needs and desires of human beings. To say all of this is to deny that the vulnerability of a grown woman and the vulnerability of a dependent fetus share the same character. I think the "people seed" story that Judith Jarvis Thomson tells illustrates nicely what I am trying to say:

"... Suppose it were like this: people-seeds drift about in the air like pollen, and if you open your windows, one may drift in and take root in your carpets or upholstery. You don't want children, so you fix up your windows with fine mesh screens, the very best you can buy. As can happen, however and on very, very rare occasions does happen, one of the screens is defective, and a seed drifts in and takes root. Does the person-plant who now develops have a right to the use of your house?"[9]

Thomson demonstrates here the actual precariousness of reproduction while setting the question apart from its distracting association with women's sexuality. Given the fact that birth control even when it is used is not 100% effective, "people-seeds" don't sound quite so funny. Thomson tells the story as a way of arguing that just because a woman becomes pregnant, she has no obvious responsibility to anyone but herself to give her life or her body for the perpetuation of the fetus that she carries. But I tell the story to demonstrate that the same precariousness conveyed by the story is felt on the part of a woman who experiences unwanted pregnancy and on the part of all sexually active women of child-bearing age for that matter. And this precariousness translates into an emotional vulnerability, if it does not also translate into social, economic, emotional and physical (or health-related) vulnerability. Only in cases in which a pregnancy is wanted before conception or becomes wanted after conception by the person carrying the fetus is this vulnerability not felt. And these are the only cases in which abortion is not a legitimate option. In this light, "Laci and Conner's Law" is completely superfluous to the question of the legitimacy of making reproductive choices because it only threatens punishment in cases in which pregnancy is desired by the person carrying the fetus. This is the case because this law could be read as only pertaining to cases in which the interruption of gestation was done against the will of the woman carrying the fetus, as was the case for Laci Peterson.

And so my final point is that the illegitimacy or legitimacy of abortion rights simply cannot be considered without considering the context in which these rights are exercised or legally prohibited. On the one hand, we have a desire to prevent the economic, emotional, social, and physical vulnerability of individuals that pregnancy itself threatens, and on the other hand a legal system that may soon consider fetal rights to be legitimately in competition with this desire. I would submit that regardless of how our legal system treats the status of the fetus, persons interested in encouraging the continual creation of democracy ought to look at the situation with an eye for the security of individuals—according to what the legal right to make reproductive choices would mean in context for these individuals. If our desire is to protect the vulnerable, as the NRLC ostensibly claims, then we must recognize that we have both a vulnerable adult and a vulnerable fetus to consider. Given that the vulnerability of the woman considered here is potentially economic, social, political and emotional vulnerability and the vulnerability of the fetus is impossible to separate from that of the life on which it depends, I have suggested that the legal right to make reproductive choices protects against actually devastating vulnerabilities, while denying the reality of reproductive choice ensures this vulnerability for both the person and the fictional person, the fetus, involved. In other words, it doesn't make much sense to me to go to lengths to protect a fetus that may or may not come into the world with a guardian who is herself vulnerable in one or more ways. The NRLC may respond that in this case we should look to adoption as a way of righting the situation. But to bring back Judith Jarvis Thomson for a moment, it is entirely possible that "a woman may be utterly devastated by the thought of a child, a bit of herself, put out for adoption and never seen or heard from again. She may therefore want not merely that the child be detached from her, but more, that it die."[10] But differing from Thomson, I would add that in the unique case of abortion, given that preconception birth control is never 100% effective, persons interested in the continual creation of democracy should provide for a woman's right not to be rendered emotionally, utterly vulnerable by unwanted pregnancy. In this case, understanding that any decision that we make will always already constitute the natural/cultural situation in which we find ourselves, that there is no "life" that will right itself, asserting the legitimacy of the right to make reproductive choices for oneself is one way of preventing debilitating inequalities, vulnerabilities, in the lives of citizens.  

Works Cited

Dewey, John. Experience and Nature, in The Later Works of John Dewey, 1925-1953, Vol. 1. ed. Jo Ann Boydston. Carbondale: Southern Illinois University Press, 1988.

Radin, Margaret Jane. "Pragmatism and the Feminist," Pragmatism in Law and Society, M. Brint and W. Weaver eds. 1991.

Thomson, Judith Jarvis. "A Defense of Abortion," Philosophy and Public Affairs, Vol. 1, no. 1, Fall 1971.

Singer, Beth. Pragmatism, Rights, and Democracy. New York: Fordham University Press, 1999.

National Right to Life Committee Mission Statement.

<http://www.nrlc.org/Missionstatement.htm> (26 August 2004).

Is Abortion Safe? <http://www.nrlc.org/abortion/ASMF/asmf13.html> (26 August 2004).

[1] It seems to me that if we put the case for reproductive rights over against actual fetal rights in terms of nonrape or lack of medical threat to the person carrying the fetus, we will have as strong a case for abortion rights as we will likely need.

[2] Beth Singer, Pragmatism, Rights, and Democracy (New York: Fordham University Press, 1999). Margaret Jane Radin, "Pragmatism and the Feminist" (Pragmatism in Law and Society, M. Brint and W. Weaver eds. 1991.)

[3] http://www.nrlc.org/Missionstatement.htm

[4] ibid.

[5] http://www.nrlc.org/abortion/ASMF/asmf13.html

[6] In fact, the NRLC uniformly conflates suicide and euthanasia in such a way that it leads one to wonder how much of their discomfort is actually with suicide itself and not physician-assisted suicide.

[7] Actually the NRLC claims to have no official opinion on contraception. Ibid.

[8] Dewey, John. Experience and Nature, in The Later Works of John Dewey, 1925-1953, Vol. 1. ed. Jo Ann Boydston. Carbondale: Southern Illinois University Press, 1988.

[9] Judith Jarvis Thomson, "A Defense of Abortion," Philosophy and Public Affairs, Vol. 1, no. 1, Fall 1971.

[10] Ibid.