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The right of a person to control their (her) body is as basic as the right of self-defense. [1]

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Date: 2022-06-28 00:00:00

I’ve posted on this before but the new reality makes it more imperative than ever. The right to choose is safe in many states but most “red” states are taking away the right of a woman to control her body when pregnant. I have the argument that can win in front of “red” state judges.

Two words, one progressive & one very, very close to the heart of conservatives.

CONSENT & SELF-DEFENSE

CONSENT:

There is an attitude in some circles that, in regards to abortion, consent to engage in sex is consent to accept all of the repercussions of that act. However, I believe that more current concepts of consent disavow such retrograde concepts.

I would argue that consent to engage in an activity implies consent to the possible repercussions of that action but do not in turn require a plaintiff to acquiesce to those repercussions.

A mountain climber consents to the risk of falling but if they fall from a cliff, they have every right to try & arrest that fall before it brings them to harm.

Our daily activities are full of risks but we have to right to act in ways to prevent & defend against those risks.

One might walk through a high crime neighborhood & thereby accept the risks of being in an unsafe place but that does not necessitate acceptance of being a victim of crime. One can even use deadly force to defend oneself from being violated by someone who wants unauthorized access to your body or belongings.

A soldier in a war zone inherently consents to the risks involved with operating in an arena where violence may occur but at the same time, is not obligated to forgo attempts to protect themselves or others from the potential damage inherent to the environment. In other words, a soldier accepts the risk of violence but is also able to mitigate those risks & even do violence to others in order to protect themselves from violence.

A woman who accepts a dinner invitation may consent to the possibility that the dinner may lead to other interactions which could include intercourse. However, by itself, (& to the dismay of some men) accepting the dinner invitation does not require her to sleep with her date. If she accepts a kiss from her date, it does not constitute consent to have intercourse. Allowing her date to caress various body parts is not consent for intercourse. Even initial consent to have intercourse does not take away her (or his) right to terminate the interaction at any time. IF the date persists in such activities once clear communication to stop has been delivered, the person wishing to withdraw from the situation has the right to use force, even deadly force to terminate the interaction if the unwanted advances persist.

Similarly, if a being (even a legal person) desires to use someone else’s (a woman’s) body for its own survival, consent should be required, just as it would be required in every other context when someone wants to make use of someone else’s body. While killing in self-defense might be an extreme response, it should still be a legal option.

https://en.wikipedia.org/wiki/Consent#Sexual_activity

The legal basis for consent is firmly established in regards to sexual activity.

https://www.mayoclinicproceedings.org/article/S0025-6196(1160864-1/fulltext

Of course, consent is also required regarding medical activity

This means clarifying that the importance of consent includes the consent to use the body of another individual would have a well-defined legal basis.

The extension of legal thought to cover a pregnancy would involve a similar legal basis as consent to allow another individual the access to a plaintiff’s body without the plaintiff’s consent. A doctor can’t touch your body without your consent. A potential sexual partner also cannot touch a plaintiff’s body without the plaintiff’s consent. Why would this not also apply to a being (even a legal person!) intending to make extended use of a plaintiff’s body without the plaintiff’s consent?

SELF-DEFENSE:

Our laws allow a plaintiff to use force to deny access to their body or belongings by an aggressor even when such denial involves deadly force. This is referred to as the right to self-defense. This would also apply when a plaintiff has provided explicit or implied consent to the use of her body but then chooses to withdraw consent when circumstances have changed (i.e. a newly discovered threat involved in the continuation of the use)

Many conservatives will respond by scoffing at the notion of needing to defend against a baby with deadly force. Even if they accept that the baby is placing unwanted “obligations” on the mother they will argue that there was no malign intent on the part of the baby & therefore no justification for “deadly force.” The simplest analogy to use here is the analogy of a drowning person. It is well established that a drowning person will readily push a would be rescuer under the water, thereby drowning both persons. I’m not certain of the legal precedents but I’m pretty sure that the law doesn’t require you to put yourself in harm’s way in order to rescue a drowning person. Risking your well being to rescue another person is a personal choice! You are under no legal obligation to risk your well being to save another.

I’d like to know if there is another legal example for this similar analogy: If you were dangling from a helicopter at a great height & another person was dangling from you. Are you obligated to ensure that the person dangling from you is able to stay attached? If you feel that you cannot carry the weight of both of you without losing your grip & both falling to your deaths, would it not be legal to let go of the other person so that you can live? These are troubling moral analogies but let’s be real folks, an unwanted pregnancy is also a troubling situation.

While there may be some gray area regarding implied consent when a plaintiff knowingly allows the persistence of a pregnancy for a period of time without taking action to act to deny consent of use of the plaintiff’s body, would this not be a superior legal basis for a woman’s right to an abortion? Even when considering implied consent, if circumstances change (i.e. new risks are discovered) the need for consent must be renewed.

Political conservatives are very strong on emphasizing the right to self-protection. If abortion rights could be expressed in similar terms, it could be a winning argument in the courts.

I believe that this argument (which could admittedly benefit from further refinement) may be the argument that can protect a woman’s right to choose & bring an end to the contentious issue that has been haunting American politics for 50 years. I will gladly engage with any readers on this subject in order to refine the language with the ultimate goal of presenting it as a defense of a woman’s right to control her body in the face of the numerous attacks which are winding their way through the courts.

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[1] Url: https://www.dailykos.com/stories/2022/6/28/2107039/-The-right-of-a-person-to-control-their-her-body-is-as-basic-as-the-right-of-self-defense

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