Applications Of Feminist Legal Theory

Privacy v. Equality: Beyond Roe v. Wade

A·S) Privacy v. Equality: Beyond Roe v. Wade CATHARINE A. MACKINNON In a society where women entered sexual intercourse willingly, where adequate contraception was a genuine social priority, there would be no "abortion issue."... Abortion is violence.... It is the offspring, and will continue to be the accuser of a more pervasive and prevalent violence, the violence of rapism. -Adrienne Rich, OfWoman Born (1976) ROE v. WADEl guaranteed the right to choose abortion, subject to some countervailing considerations, by conceiving it as a private choice, included in the constitutional right to privacy. In this critique ofthat decision, I first situate abortion and the abortion right in the experience of women. The argument is that abortion is inextricable from sexuality , assuming that the feminist analysis of sexuality is our analysis of gender inequality . I then criticize the doctrinal choice to pursue the abortion right under the law of privacy. The argument is that privacy doctrine reaffirms and reinforces what the feminist critique of sexuality criticizes: the public/private split. The political and ideological meaning of privacy as a legal doctrine is connected with the concrete consequences of the public/private split for the lives of women. This analysis makes Harris v. McRae,2 in which public funding for abortions was held not to be required, appear consistent with the larger meaning of Roe. I will neglect two important explorations, which I bracket now. The first is: what are babies to men? On one level, men respond to women's rights to abort as if confronting the possibility of their own potential nonexistence-at women's hands, no less. On another level, men's issues of potency, of continuity as a compensation for mortality, of the thrust to embody themselves or their own image in the world, underlie their relation to babies (as well as to most else). To overlook these meanings of abortion to men as men is to overlook political and strategic as well as fundamental theoretical issues and to misassess where much of the opposition to abortion is coming from. The secThe author discussed these ideas at the Conference on Persons, Morality, and Abortion, Hampshire College , Amherst, Massachusetts,Jan. 21, 1983, and at the Planned Parenthood Conference, "Who Governs Reproduction ?" New Haven, Connecticut, Nov. 2, 1985. Reprinted by permission of the publishers from Feminism Unmodified by Catharine A. MacKinnon, Cambridge , Mass.: Harvard University Press. Copyright © 1987 by the President and Fellows of Harvard College. Copyrighted Material 985 986 I CATHARINE A. MACKINNON ond issue I bracket is one that, unlike the first, has been discussed extensively in the abortion debate: the moral rightness of abortion itself. My stance is that the abortion choice must be legally available and must be women '5, but not because the fetus is not a form of life. In the usual argument, the abortion decision is made contingent on whether the fetus is a form of life. I cannot follow that. Why should women not make life or death decisions? This returns us to the first bracketed issue. The issues I will explore have largely not been discussed in the terms I will use. Instead , I think, women's embattled need to survive in a world hostile to our survival has precluded our exploring these issues as I am about to. That is, the perspective from which we have addressed abortion has been shaped and constrained by the very situation that the abortion issue puts us in and requires us to address. We have not been able to risk thinking about these issues on our own terms because the terms have not been ours. The attempt to grasp women's situation on our own terms, from our own point of view, defines the feminist impulse. If doing that is risky, our situation also makes it risky not to. So, first feminism, then law. Most women who seek abortions became pregnant while having sexual intercourse with men. Most did not mean or wish to conceive. In contrast to this fact of women's experience, which converges sexuality with reproduction with gender, the abortion debate has centered on separating control over sexuality from control over reproduction, and on separating both from gender and the life options of the sexes. Liberals have supported the availability of the abortion choice as if the womanjust happened on the fetus.3 The political right, imagining that the intercourse preceding conception is usually voluntary, urges abstinence, as if sex were up to women, while defending male authority , specifically including a...