The freedom to obtain an abortion is presently couched in the idea that a woman’s decision to seek and obtain an abortion is a private decision (see Roe v. Wade 410 U.S. 113 (1973).
That privacy right is found in penumbras of the Constitution (i.e., the shadow of the other amendments….you can’t have free speech without privacy, you can’t have freedom from unreasonable searches and seizures without privacy, etc.). In Roe v. Wade, the privacy spoken of in such lofty language involves not just a woman but the woman and her doctor. This is a regrettable rationale for protecting a woman’s right to get an abortion for three reasons:
First, the privacy between a woman and her doctor fails to adequately address–and debunk–a man’s perspective on the whole “what should ‘we’ do” question; second, privacy rights are not directly found in the Constitution, and in case law have only firmly been recognized since the liberal 1970’s Warren court said so; and finally, because the doctor is accorded far too much weight in the decision to terminate a pregnancy in the case law leading up to the present day. The decision is no bedrock upon which to maintain abortion rights for women. Instead, it reeks of parens patriae, only in this context, not so much a parental state authority for children, but a “Daddy State” for women, buttressed by a claim for privacy which is far too easy to argue isn’t there at all.
This essay will discuss a different rationale, not to supplant but to shore up Roe v. Wade, in the case for abortion rights for women. The right to seek and obtain an abortion is absolutely taken for granted in this essay. It is not even the starting point for this essay, just an underlying assumption. I don’t want to discuss it. If I have to start with “why self determination and autonomy are keen” I will be writing for days.
Instead, I begin with a conclusion:
The decision to seek and obtain an abortion is protected in the Bill of Rights by the First Amendment’s right to free speech. In particular, the right to an abortion is protected by freedom of association.
The freedom of association is barely found in Supreme Court case law. These are a few of the cases that do utilize the right to association in their holdings:
- National Association for the Advancement of Colored People v. Alabama, 357 U.S. 449 (1958)
- Roberts v. United States Jaycees, 468 U.S. 609 (1984)
- Boy Scouts of America v. Dale 530 U.S. 640 (2000)
Taken in turn, the cases stand for the proposition that free speech and the right of expressive association, are guaranteed by the Bill of Rights in the context of 1). refusing to require the NAACP to produce the names and addresses of all its members and agents, because it inhibited the association’s right to free association; 2. refusing to compel the Jaycees to accept women as regular members, because of the male Jaycees’ freedom of association; 3. refusing to require the Boy Scouts to admit a homosexual as a scout leader because it violated the Boy Scouts’ First Amendment right of expressive association.
The right to freely associate with the people one chooses to associate with dates back, then, to at least 1958. Actually, the right reaches back to the roots of democracy in America and abroad.
John Locke wrote,
“To understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.” Locke, John. The Second Treatise of Civil Government. 1690. See http://www.egs.edu/library/john-locke/quotes/. Retrieved December 5, 2013.
Locke was one of the great writers and thinkers who contributed to the ideals of the framers of the Constitution. His writing influenced the idea of “life, liberty and the pursuit of happiness.” He was writing here of liberty, and explained in his Treatise that it was the natural law of man, in his view, to be free.
The most important clause here is: “a state of perfect freedom to order their actions”. Locke is speaking of natural liberty, and included in that liberty is freedom of association. In other words, in a democracy, I will order my actions such that I will surround myself with the people I want to surround myself with, because I am free. The freedom of association is therefore as profound as it is embedded in our democratic ideals.
Whom shall a woman associate with in her personal sphere? This is a question more important to the average person than political, religious, or economic associations which she may have. Whom she chooses to live with, to go home to, to grow in time and space with, is more vital than who she votes for, who she tithes to, and who pays her for her labor.
It is because a woman should have the freedom to choose her family that the decision to abort or keep her baby is hers and hers alone. If she aborts, she decides for herself that this is not the time for a child, and that this man is not the man she wants a child with. She expresses with her decision that she wants– for whatever her autonomous reason– to leave her associations as they were before she became pregnant.
She may be fourteen and wish to remain childless until later. She may have no real partner, just a lover, and wish for him to remain at a distance from her personal sphere over time. She may have been raped by a stranger, a family member, or a close friend, and is distressed by any further association with him. She may have three children already and wish her happy marriage to remain as nourished as it is without the added strain of another child. She may be perfectly equipped– emotionally, financially, and in terms of social capital– to have a child, but she doesn’t want one. Nor is she interested in carrying a baby for nine months and handing her over to a different family. She wants an abortion to fulfill her expectations of liberty—not only because it is her private right to choose one–but because her personal associations are her choices.
Yet, the case law about abortion and the freedom to obtain one, do not talk much of this freedom of association.
Instead of freedom of association, the case law is concerned with bodily integrity and privacy.
In one of the more recent abortion cases heard at the Supreme Court, Planned Parenthood of Southeastern Pennsylvania v. Casey upholds Roe v. Wade, and strikes a portion of a Pennsylvania law requiring a husband consent to an abortion. The court held:
“Section 3209’s husband notification provision constitutes an undue burden, and is therefore invalid. A significant number of women will likely be prevented from obtaining an abortion just as surely as if Pennsylvania had outlawed the procedure entirely. The fact that § 3209 may affect fewer than one percent of women seeking abortions does not save it from facial invalidity, since the proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom it is irrelevant. Furthermore, it cannot be claimed that the father’s interest in the fetus’ welfare is equal to the mother’s protected liberty, since it is an inescapable biological fact that state regulation with respect to the fetus will have a far greater impact on the pregnant woman’s bodily integrity than it will on the husband.” 505 U.S. 833, 838 (1992)
The foregoing quote is a very good example of how the Court so far, in its effort to protect a woman’s right to an abortion, is insulting. . . to me, it stinks of the notion that a woman is a valuable suitcase.
Can we imagine more, please, than the nine months of baby luggage she will become? Can we talk about the quality of a woman’s life in terms of the father of the baby and the baby herself being the central point of a woman’s life–or not part of it? This is the key to why privacy and liberty ought to be buttressed by the freedom of association.
The woman is seen too readily as a thing, instead of a person with a kaleidoscopic life. “She has to carry the baby” is the theme, rather than, “she will be in some sort of relationship with that sperm donor for life…for life.
What if she doesn’t want to see him next week, let alone for life? What if she does not want a baby in her life (yet, or ever) to care for, nurture, teach, and pay for, for the rest of her life?
What if she does not care for these associations in her life? Does she not have the freedom to associate with whom she pleases? Is not the family unit the most important association she will ever choose?
The Court has explained: “[The law requiring spousal consent] embodies a view of marriage consonant with the common law status of married women, but repugnant to this Court’s present understanding of marriage and of the nature of the rights secured by the Constitution. See Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 69. Pp. 887-898.”
In that case regarding spousal consent, the Court explained,
“We are not unaware of the deep and proper concern and interest that a devoted and protective husband has in his wife’s pregnancy and in the growth and development of the fetus she is carrying. Neither has this Court failed to appreciate the importance of the marital relationship in our society. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 486 (1965); Maynard v. Hill, 125 U.S. [p70] 190, 211 (1888). Moreover, we recognize that the decision whether to undergo or to forgo an abortion may have profound effects on the future of any marriage, effects that are both physical and mental, and possibly deleterious. Notwithstanding these factors, we cannot hold that the State has the constitutional authority to give the spouse unilaterally the ability to prohibit the wife from terminating her pregnancy when the State itself lacks that right. See Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).” Planned Parenthood of Central Missouri v. Danforth 428 U.S. 52, 71 (1976).
Regarding parental consent in the same case, the Court held,
“The State may not constitutionally impose a blanket parental consent requirement, such as § 3(4), as a condition for an unmarried minor’s abortion during the first 12 weeks of her pregnancy for substantially the same reasons as in the case of the spousal consent provision, there being no significant state interests, whether to safeguard the family unit and parental authority or other vise, in conditioning an abortion on the consent of a parent with respect to the under-18-year-old pregnant minor. As stressed in Roe, “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.” 410 U.S. at 164. Pp. 72-75. 428 U.S. 52, 54 (1976).
Here, the family unit is acknowledged (and rebuked as a rationale) in support of the opposite proposition: i.e. that the family unit should be strengthened by giving parents control over their child’s decision to abort. This is juxtaposed with the bizarre idea that the woman’s doctor has as much a right to her associations as the woman herself does–but her parents do not. While I do not agree with them, I can understand how this brusque treatment of the family unit and glorification of the patient-doctor relationship might infuriate parents who do wish to make that choice for their daughters.
In Planned Parenthood of Central Missouri v. Danforth the Court explained no blanket requirement for spousal consent thus:
“We are not unaware of the deep and proper concern and interest that a devoted and protective husband has in his wife’s pregnancy and in the growth and development of the fetus she is carrying. Neither has this Court failed to appreciate the importance of the marital relationship in our society. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 486 (1965); Maynard v. Hill, 125 U.S. [p70] 190, 211 (1888). Moreover, we recognize that the decision whether to undergo or to forgo an abortion may have profound effects on the future of any marriage, effects that are both physical and mental, and possibly deleterious. Notwithstanding these factors, we cannot hold that the State has the constitutional authority to give the spouse unilaterally the ability to prohibit the wife from terminating her pregnancy when the State itself lacks that right.” See Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). 428 U.S. 52, 71 (1976).
This decision does, then, come close to speaking of the freedom of association which should absolutely ground the right to an abortion. But. . . it is only in terms of a father’s rights to association, particularly one who is married to the pregnant woman, that the Court speaks of the relationships inherent in the decision to keep or abort a child. This is why it is important that the ideas of bodily integrity and privacy are still utilized to ground the rationale for the right to seek and obtain an abortion. What about his associations, after all?
Does the father of the baby not have the freedom to associate with his future child? Does he not deserve the opportunity to be her father? Does he not have the right to continue to associate with the woman, the child’s mother, over time and space, in an ever expanding family unit that he has chosen?
The problem with these questions is that they assume he HAS made a choice already, to associate with his future child and mother of his child, simply by way of his sperm delivery.
Freedom of association is a thoughtful, active endeavor, not an automatic one based merely on the sexual act. Lovers, partners, rapists, husbands, boyfriends, one-night-stands, are not always choosing to associate with their life partner. In most cases, they are choosing to engage in an intimate act for about twenty minutes. Everything else that night is something else. The carnal act of producing an inseminated egg may be natural but it is not a vivid example of the association one is choosing, in the moment, to have for the rest of one’s life. It is usually steeped in emotion…lust, passion, pleasure, etc. It is very much present tense. Freedom of association must be allowed to continue in the imagination for the future…much as one begins to plan, and devise, while waiting for a pregnancy test to hurry up and give one results.
There may, on the other hand, be a case of a married couple who go to the bedroom after taking an ovary reading or in the midst of baby planning, who say, “Let’s go make a baby.” What if the woman announces her pregnancy a few weeks later, and then says, “I’m getting an abortion.” Here I believe is a very sad, if fictional, case, which still leaves no question in my mind that she has the right to that abortion. What is a woman’s autonomy, freedom, liberty, what is the freedom of association, if it does not include her right to change her mind?
I am not unmindful of the difficulty it puts a man in to realize that a woman potentially has more freedom of association than he does, by virtue of her ability to choose her family more fully than he can. But I did not make the natural laws. Women can carry babies and men cannot. The balance perhaps comes because men can often choose to walk away, where a woman has a much more difficult time, by virtue of being engaged in helping to grow that baby over nine months, with all its attendant emotions and deprivations, and by virtue of society’s age-old expectations of her, to walk away from that association.
Thus, her associations are very, very often going to include that family unit, and the world will remain in disciplined incomprehension why her economic and political pursuits will probably remain behind those of men forever. This inequality isn’t fair either, but it is just as often because a woman chooses family associations first and foremost as it is entrenched anti-feminism that causes the inequality.
Thus, since it is the most important, life-affecting association a woman can ever decide on,–(Who belongs in my family?–) abortion rights should be grounded in free speech and freedom of association as well as the right to privacy and the right to bodily integrity.
 The biggest problem with this legal theory (protecting abortion rights via freedom of association)–of all lousy facts–is that freedom of association is not in the Bill of Rights either. It’s another penumbra. And yes, I footnoted this gaping hole in my logic…..oh, ok, I will put this in the main text, OK? We’ll discuss it.
 Of course, in the context of abortion, it might be argued that aborting a fetus is not “natural” and that the liberty he wrote of could never include something like the freedom to abort a fetus in order to associate–or not associate– with the persons a woman wishes to associate with.
From my perspective, it could be argued that the framers were much more pragmatic– farmer/butcher/hunters that they were–than we usually give them credit for, and one anecdotal version of evidence for this pragmatism is that there were no laws against abortion at the time of the writing of the Bill of Rights.
Even moral laws against abortion at that time do not readily take into account that the Constitution thrives to this day only because it is a living document, changeable by the mores of the times. In this sense, I look to Locke’s pronouncement with a different emphasis than his use of the word “natural.”
 This paragraph has been sponsored by a cheerful nod to Scalia and his strict constructionist brethren.
Reading about men who want to establish paternity over fetuses and impede the rights of a woman to travel where she will, I realized, this post also has relevance for the right to carry to term based on freedom of association. Reading http://www.rolereboot.org/culture-and-politics/details/2013-12-bode-miller-changed-his-mind-and-your-rights-along-w made me so angry. Who are these men who think women are suitcases? Privacy rights AND freedom of association rights together give women the legal rationale for what is so intuitively sensible.