Informed Choice or Restricted Right?

14 Jun

I read a blog by the Radical Housewife entitled ‘Rights, not choices,’ which I found to be very enlightening so I decided to expand on some of her thoughts. The gist is that abortion is a part of the right of a woman to control her reproduction. As the author noted, Pam Tebow had a choice to abort, but she twisted “choice” for her purposes to insinuate that she is pro-choice, when in fact she only believes in the “choice” of being a mother. I believe that the language we use with respect to abortions is a part of this problem.

A choice to terminate a pregnancy implies that one must be pregnant before one gets that choice. A right to terminate a pregnancy implies that every woman has that right, regardless of whether they ever become pregnant. I believe that moving towards the language of the right to abort would be of great benefit for the pro-choice movement. In everyday life, we are confronted with endless choices. The common thread is that most choices have limits placed on them by the government. There are limits on who you may choose as a sexual partner, specifically the other person must be a consenting adult. You may choose to drive, but you must be licensed and you must follow the rules of the road. Our everyday choices are qualified for the safety of society and nobody questions that.

When abortion is framed as a choice, it naturally follows that, as with all other choices, the choice to abort may be qualified. As a result, the U.S. ends up with ultrasound laws, parental notification laws, and mandatory waiting periods. These laws are meant to inform the choice of abortion; framing abortion as a choice allows limits to be placed on that choice. In contrast, in Canada, we have the right to free speech, religion, security of the person, association, etc. When it comes to qualifying these rights, the courts are very particular. Laws that restrict Charter rights must satisfy what is known as the Oakes Test, which allows reasonable limitations on rights and freedoms through legislation if it can be demonstrably justified in a free and democratic society. Satisfying this test is not easy and as a result, restrictions on our rights are limited. In Canada, R. v. Morgentaler held that criminalizing abortion was a restriction on the security of the person that was not justified per the Oakes Test. As a result, Canada has zero restrictions on abortions.

I realize that I am extracting Canadian law and applying it to the “informed choice” laws of the United States, but I believe the principle crosses borders: rights should not be arbitrarily restricted. Abortion is a part of the right of a woman to control her reproduction. Just as it is unacceptable to put arbitrary restrictions on the right to freedom of religion or speech, it should be considered unacceptable to put such arbitrary restrictions on abortion access in the name of informed choice. Ultrasound laws, parental notification laws, and mandatory waiting periods do not inform the choice to abort, they restrict the right to control one’s reproduction.

So the question becomes: do we have informed choices or restricted rights?

4 Responses to “Informed Choice or Restricted Right?”

  1. Shannon Drury June 15, 2010 at 12:38 pm #

    Thank you for the shout-out! I would love to hear more women’s thoughts about this.

  2. Lisa June 16, 2010 at 2:07 am #

    From a legal standpoint, women in the US do have the right to an abortion under the Constitution. Roe v. Wade has established that. However, Roe put a limit on that right and says that states can make whatever laws they want on abortions as long as it is not an “undue burden” on the woman. Considering our policy/law makers are all privileged men and women, they don’t understand what an undue burden would be so we get some ridiculous laws that are actually an undue burden on women. Common sense and politicians just don’t go together.

    That being said, I do wish in America the pro-choice community could frame the issue of abortion as a right. However, we have an incredibly strong anti-choice movement and are very good at twisting our words. If we say “women have the right to have an abortion.” They would/do say “Do women have the right to kill their child?” or “everyone has the right to life.” Granted, they use both of these saying if a pro-choicers said “abortion is a woman’s choice.” So either way, we are screwed with the anti-choice nonsense. However, in America I do not believe a lot of people view abortion as a right, even though legally it is. They view it as a choice, so framing the issue as a choice has/is working. I really do not know how the public would react if we suddenly started only framing abortion as a right. I cannot see it helping the pro-choice movement especially since the “right to life” and “women don’t have the right to kill their child” rhetoric would be used more.

    Do I wish framing choice as a right would work? Yes. It would make a stronger argument for choice, especially if you are making a legal argument. Not that there is any legal argument in the US to make abortion illegal.

  3. Not Guilty June 16, 2010 at 9:26 am #

    Abortion is also a right in Canada, namely apart of the right to security of the person. But since Canada is more liberal as a nation, we’ve left the law as is since Morgentaler. That being said, I believe that most people don’t view abortion as a right – they may view it as a necessary evil or a choice. As a result, people who are pro-choice but aren’t involved in the movement “accept” limits on abortion because it is “just” a choice. This is where I feel like changing the language might help, by getting these people to understand that it is more than a choice and thus deserving of protection.

    It is difficult for me to speak from the American perspective. I do know quite a bit about American politics (I follow it and I did live in the US at one point). I do agree with you that in the US, changing the language to one of rights may create a battle that can’t be won. I wrote this post with a particular friend in mind who is very pro-choice but thinks from a policy perspective, ultrasound laws, etc. are sound. I haven’t shown him this post, but I am hoping that by framing the issue in this way, people like him can understand that abortion isn’t just a choice, it is a right and it deserves the same respect as the right to free speech/religion.

  4. Lisa June 16, 2010 at 4:11 pm #

    I agree that changing the word “choice” to “right” for people who have strong pro-choice will help them see abortion is a right every woman has. I think framing the issue that way would not help people who see abortion as a necessary evil or just a choice though. I live in America and have been involved on some level with American politics since high school, I was an odd kid, and have seen both sides of the debate well since I have anti-choice family members and was involved in the anti-choice movement briefly in high school and my first semester of college. I do not think people in America who don’t have strong pro-choice beliefs will like abortion being framed as a right. I have used the language some and it has rubbed a lot of my friends, who are mostly pro-choice, the wrong way. They don’t see it as a legal right that needs to be protected by the law and is a legal right/human right. I have pro-life friends as well and when I do say “women have a right to abortion”, they don’t see it as a good argument and usually say “So was slavery [or segregation or any other horrible law in US history] was also legal until people realized they did not have the right to own slaves.” I have a feeling that framing it as rights/in legal terms will bite us in the ass in the US.

    From a policy perspective, the laws surrounding ultra sound laws, waiting periods, etc. are legal under Roe v.Wade as long as they do not pose an “undue burden” on women. I view all the ridiculous laws surrounding abortion as “undue burdens” on women but the privileged people writing the laws and a lot of the US public does not see them as “undue burdens” until they are faced with an unplanned pregnancy (which could only potentially be half the population anyways). From a policy/legal perspective, one could make a strong case (and people have) that these laws are an “undue burden” if the woman having an abortion because she can’t miss two days of work, she is a teenager, she was a rape victim, etc. However, the arguments have been lost in court. There is no way to strike down the laws through the ballot as far as I know, but I could be wrong. I do not focus on that area of the law.

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