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First in a groundbreaking book, Breaking the Abortion Deadlock: From Choice to Consent, published in 1996, then in various public fora, from academic conference panels to Christian radio call-in shows, and now in a major law review article entitled My Body, My Consent: Securing the Constitutional Right to Abortion Funding, Eileen McDonagh has sought to redefine drastically our understanding of the still deeply contested right to an abortion, and hence, of the nature of the constitutional protections which in her view this embattled right deserves. Her argument is complicated and subtle, but its basic thrust can be readily summarized. A woman's right to an abortion, McDonagh argues, should be understood as a right to defend herself against the non-consensual invasion, appropriation, and use of her physical body by an unwelcome fetus, rather than as a right to choose medical procedures free of interference by the state. Therefore, the woman's right to terminate a non-consensual pregnancy should be understood as part and parcel of her paradigmatically liberal right to defend herself against any assaultive appropriation by others of her physical self.

Two implications follow from McDonagh's re-framing of the basic right to terminate a pregnancy, both of which are of great significance to the abortion debate. First, if the right to an abortion is indeed best understood as a right to defend oneself against the non-consensual appropriation and use of one's body by a fetus, then it no longer matters whether or not the fetus is a "human being" or a "person"; a woman, no less than a man, has a right to defend herself against the non-consensual appropriation and use of her physical body by any human life, born or unborn, whether or not that person is genetically linked, whether or not that person is an intentional agent, and whether or not that person is a fetus, an infant, or an adult. Given McDonagh's premises, the "personhood" of the fetus is no longer fatal to the right to an abortion; in fact, if anything, this characteristic clarifies the right's contours. Second, so re-framed, the right as defined by McDonagh strongly implies a correlative right to state funding. In liberal societies governed by the rule of law, we typically have not only a right to defend ourselves against non-consensual appropriations of our bodies or body parts, but we also have a firm expectation (whether or not a right) that the state will assist us in perfecting that defense. The very raison d'etre of even a bare bones, minimalist, night-watchman state requires as much. States exist, largely, to ensure that we are protected against precisely such assaultive invasions. To whatever degree the state protects individuals against invasive assaults by others, the state must provide comparable protection for those suffering non-consensual pregnancies. The only way it can do so, realistically, is by funding abortions.

For both reasons, McDonagh's argument, if successful, is not only provocative but practically and politically important. If it is a good argument, it should be embraced and propounded by both the political and legal wings of the pro-choice movement. It gives an argument for abortion rights that implies the right to funding which is strengthened rather than weakened by the increasingly apparent humanity of the fetus, and it does so through the traditional legal method of analogizing pregnancy and fetal life to lived experiences and circumstances which, if not exactly common, are at least potentially available to all of us. It ought to embolden and empower the embattled abortion rights movement, even while it occasions a rethinking of the legal and moral assumptions that to date have overdetermined the logic of that movement's central arguments.

Publication Citation

87 Geo. L.J. 2117 (1999)