36 Pages Posted: 18 Aug 2011 Last revised: 10 Aug 2012
Date Written: August 9, 2012
Roe v. Wade has received much criticism from both sides of the political spectrum. Though the perspectives of the two camps differ significantly, players from each share at least one common critique of the landmark decision. Specifically, both sides are skeptical about the lack of an express Constitutional right to privacy, on which the Supreme Court in Roe based its decision to find a “fundamental” right to abortion. This lack of Constitutional context and legal history renders Roe vulnerable. In addition, pro-choice advocates find fault with the privacy basis because it yields no positive rights to funding or access support from the government; it is relegated to the land of negative rights, which might provide the right woman with reproductive choice free from government intrusion, but for the wrong woman - one with limited resources - the so-called “choice” becomes nonexistent.
This article investigates whether the absence of positive rights and the foundational flaw of the right to privacy might be adequately addressed by reframing Roe in the language of property - specifically, a woman’s property right in her uterus. Assuming arguendo the anti-choice tenet that the fetus is a person from the moment of conception, separate from the woman carrying it, the article sets forth an argument that the fetus is an unwanted trespasser in the woman’s uterus whom the woman has a right to eject. Further, the article posits that this property-based notion of abortion might give rise to government funding for abortions based on a Constitutional obligation to maintain a system designed to protect women’s uterine property, similar to states’ obligations to maintain a police force in order to protect other forms of private property, including the removal of trespassers. In short, this article provides a new basis for abortion rights that takes advantage of the long-standing traditional notions of property law and the right to exclude, as well as the public support that attaches to that right, manifested through anti-trespass systems. After establishing the property-based argument, the article explores what might be gained, and what might be lost, by adopting such a premise for abortion rights and access. Among these considerations is whether the anti-trespass scheme might push the abortion discourse beyond the typical polarizing rhetoric surrounding both the pro-choice and anti-choice camps, thus generating space for forward movement and meaningful work.
Keywords: abortion, Roe v. Wade, privacy, property, trespass, positive rights
Suggested Citation: Suggested Citation
Rausch, Rebecca L., Reframing Roe: Property over Privacy (August 9, 2012). Berkeley Journal of Gender, Law & Justice, Vol. 27, No. 1, 2012; Seattle University School of Law Research Paper No. 12-21. Available at SSRN: https://ssrn.com/abstract=1911452
By Joseph Raz