Breaking the Abortion Deadlock: From Choice to Consent by Eileen McDonagh

By Eileen McDonagh

This article makes an attempt to reframe abortion rights through focusing now not on a woman's correct to decide on abortion, yet quite on a woman's correct to consent to being pregnant. Drawing on felony, clinical and philosophical definitions of being pregnant, it disaggregates the consent to sexual activity from the consent to being pregnant and argues that women and men have equivalent correct to physically integrity, that is outlined because the freedom from nonconsensual physically intrusion. The paintings presents the grounds for a woman's correct to an abortion and nation investment of abortions.

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Even highly restrictive measures that prohibit state funding of abortions, for example, assume that sex is the cause of pregnancy by recognizing exceptions for pregnancies subsequent to nonconsensual sexual intercourse, such as rape and incest. "48 The Court's acceptance of the idea that sex causes pregnancy focuses attention on the consensual nature of the sexual relationship between a woman and a man, not on the consensual nature of the pregnancy relationship between a woman and a fetus. Once a woman had consented to a sexual relationship with a man, therefore, even though the Court respectfully noted the extreme burdens entailed by pregnancy, it had no way to attribute those burdens to the fetus as the cause of pregnancy.

It is not that these five metaphors of pregnancy are completely wrong and irrelevant, of course. Clearly when women are pregnant, they do carry a fetus, it develops over a nine-month period, sexual intercourse usually (though not always) precedes pregnancy, pregnancy poses burdens ranging from minimum to maximum, and pregnancy generally has a value to society. Yet these five metaphors omit the most significant dimension of pregnancy for women's legal rights: the fertilized ovum as the cause of pregnancy.

And] [f]or the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may . . 27 Quoting an earlier case, Chief Justice Rehnquist in Webster noted that: Immaculate Pregnancy 25 For both logical and biological reasons, we indicated in [Roe] that the State's interest in the potential life of the fetus reaches the compelling point at the stage of viability. "33 Yet the Court affirmed that the cutoff point of viability itself was still sound34: Roe's central holding .

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