Thursday, December 12, 2019

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The Future of Reproductive Rights

There are more interests at stake in the abortion decision than those of the pregnant woman. The government has a legitimate interest in protecting both the unborn child and the health of the mother, and the father of the child has a personal interest in the pregnant woman's decision. Thus, unlike the condition of being pregnant, the “right” to have an abortion is not a fact that is specific to one gender. Instead, it is a legal right as to which the law can properly assign different interests to various parties.

Over the last thirty years, the abortion debate has focused on the tension between a woman's right to choose an abortion without undue interference from the state and the state's interest in the life of the fetus and the health of the mother, however, the reproductive decision, in truth, involves three parties with sometimes competing interests: the woman's interest, the man's interest and the state's interest. A woman's right to abortion has been anchored in her right to privacy and her interests in individual autonomy. Specifically, a woman has the right to control what happens to her body (autonomy) which leads to the right to decide whether or not to reproduce. That is, under the current law, once pregnant, a woman can decide to terminate the fetus or give birth.

Theoretically, a man's interests in the abortion decision are similar to the woman's-a right to privacy, autonomy and reproductive rights. Because men have no autonomy interest in the abortion decision, their reproductive interest has been limited because of the primacy given to the woman's autonomy interest. Even though a man may not want to reproduce he cannot force a woman to have an abortion; by the same token, a man who wants to reproduce cannot stop a woman from having an abortion.

The state has an interest in protecting potential life throughout the pregnancy. However, the current balancing of the state's interest versus the woman's interest is centered on viability. The state has little ability to protect the life of fetus if it is not viable. Essentially, pre-viability, the woman's interest in autonomy and right to control her body trumps the state interest in the potential life of the fetus. However, once the fetus is viable, the state can protect the potential life by outlawing abortion in all cases except for when the health of the woman is at stake. As has been discussed, changing medical technology will have a significant impact on how the courts view the primacy of the state and the woman's interest. In addition, the same changes in technology will impact the balance between the woman and the man's interests.

Currently, the constitutional basis for the right to choose an abortion is grounded in the woman's autonomy interest, an interest that does not necessarily implicate reproductive rights. As Tribe observed, the abortion decision involves two separate medical decisions: the decision to remove the fetus from the woman's body (Fetal Extraction) and the decision to kill the fetus (Fetal Termination). While, historically, and currently during most stages of pregnancy, the first decision inevitably leads to the second, changing medical technology ensures that this will not always be the case. Over time, medicine will develop to the point where, the decisions can be made separately with a live birth of a fetus creating no more risk to the woman than an ordinary abortion. Under those circumstances, there is no legal reason that a woman's interests should be given primacy in the reproductive choice. Taking into consideration the changing technology, the reproductive interest could be balanced as a private decision between a man and woman based on their potential responses to the pregnancy. It is also possible that the state's interest in the potential life of the fetus might be exercised in a way that makes all abortions illegal and provides recognition of men's reproductive interest.

Up until this point, a woman's reproductive interest has consistently prevailed over the man's, not because the law gave greater protection to the woman's reproductive interest, but because the woman's autonomy interest gave her decisions regarding reproduction primacy. In fact, it is a fair statement to assert that courts and legislatures have generally not recognized any reproductive interest of men and only indirectly recognized the reproductive interest of women In the future, the courts and legislatures will have to address directly reproductive rights. Whose reproductive interest will prevail may depend on whether there is reproductive conflict and whether there are viability concerns. Where there is reproductive conflict, the legislatures will most likely give priority to the person who wants life, however, that priority for the man will only occur if the conflict arises post-viability.

If both the woman and man want to reproduce (or do not care), there is no reproductive conflict. In this situation there are no viability concerns and no reason for the state to assert its interest, thus both parties' reproductive interest prevails and the result will be pregnancy and live birth. If the woman wants to reproduce and the man does not, there is a reproductive conflict, and because the woman wants life there are no viability concerns. Thus, the woman's reproductive interest prevails and the result will be pregnancy and live birth. If the woman does not want to reproduce and the man wants to reproduce, there is reproductive conflict and there are viability concerns. In this situation, a man's reproductive interest will prevail, but only if the decision is post-viability. If the decision is post-viability, then the man's reproductive interest prevails, and there will be fetal extraction and not fetal termination, however, if the decision is made pre-viability, then the woman's reproductive interest prevails, and fetal termination will occur. If both the woman and man do not want to reproduce (or do not care), there is no reproductive conflict. In this situation, there are no viability concerns, thus both parties reproductive interest might prevail and the result would be fetal termination. However, it is possible that some states will exercise their interest in life and ban all fetal terminations. In this case a woman would be able to exercise her autonomy interest by having fetal extraction, but would not be allowed to choose fetal termination. In such a case, neither party's reproductive interest prevails. See Figure 1.

 

Regardless of the approach adopted by states, there will be collateral consequences which will need to be addressed in subsequent research. In this section, it is only our intention to point out some of the potential consequences. If changing medical technology results in the recognition of men's reproductive interest this would essentially be an equalization of reproductive rights and responsibilities. This equalization of gender rights does not necessarily mean this change would be entirely equitable in result.

The social impact of being able to extract the fetus from the woman's uterus will be significant. Both states and fathers could exercise their interest in having a live fetus. States could require all women to have fetal extraction. This would place a significant financial and emotional burden on men and women who do not want children. Men who did not want to reproduce have always borne this burden when a woman decided to carry the fetus to term, however, the number of men who will be required to reproduce will increase substantially. For women, the burden of having a child they did not want is one that many women have not had to bear since the legalization of abortion. If a state was to choose to require fetal extraction in all feasible cases, it could have a disproportionately negative impact on poor women and women of color. Poor women may be forced to have children they cannot afford. While this is no different from the situation for poor men, poor women are not in the same place as poor men. Women earn less and where children are involved, women are more likely to be the primary caregiver. As a result of women's financial status the new reproductive reality may cause more illegal terminations, however, it may also increase interest in pregnancy prevention and early stage abortion before fetal extraction is a viable alternative, and advances in technology could eventually make extraction a viable alternative even for embryos.

If extraction is required by the state and neither the woman nor the man wants to exercise their reproductive rights, we may see the establishment of fetal adoptions. If the extracted fetuses are placed for fetal adoption there will be an increase in the already high number of unadoptable minority and disabled babies, particularly black babies. This may result in a significant portion of a generation being raised as wards of the state.

Finally, even though men and women may relinquish their parental rights to the state, because of the significant financial burden on the state resulting from such a decision, states may take physical custody of the extracted baby but require both parents to continue to provide financial support; again, placing an inequitable burden on those least able to afford it. Thus, while abortion as we understand it might be radically altered because of the new reproductive rights reality, gender, class and race issues will persist and in many instances may worsen.

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