Sources & Extracts
|Review this excerpt and then go back to the page you were on.|
Professor Tribe makes the following argument in his book Abortion:
the Clash of Absolutes. He discusses the fundamentality of
the right of privacy and whether that right includes the right
to terminate a pregnancy. Tribe writes as follows:
So does the right of privacy encompass the right to decide whether to terminate a pregnancy or doesn't it? Is that a fundamental right protected by the Fourteenth Amendment? Is it protected by the tradition and conscience of our people?
Professor Charles Fried . . . understood that the Supreme Court's line of decisions on the subject of personal privacy rested squarely on "the moral fact that a person belongs to himself and not others nor to society as a whole." In his book Right and Wrong Fried acknowledges that to say "[M]y body can be used," is to say, "I can be used." And there can be no doubt that forcing a woman into continued pregancy does entail using her body. . . .
Beyond this basic point about whose body is being used, the privacy cases recognize that the liberty clause of the Fourteenth Amendment guarantees each of us the right not to have the state shackle us with self-defining decisions. It is fundamental that we remain free of the power of total regimentation held invalid more than sixty-five years ago in Pierce v. Society of Sisters. This requires a zone that is protected by respect for individual autonomy and reverence for the privacy of intimate human relations. It cannot be denied that this is traditionally central among the values for whose protection the United States, and its Constitution, stands.
The liberty involved in deciding whether to terminate a pregnancy is, in part, the interest in being able to avoid pregnancy without abstaining from sex, the liberty recognized as fundamental in the contraception decisions. But it is much more. Indeed, the right to decide whether to end a pregnancy lies at the very intersection of several liberties that must be deemed fundamental. . . .
Pregnancy entails unique physical invasion and risk. . . .
Even if one stresses the potential independence of the fetus from the woman's body, forcing her to continue a pregnancy to term and to deliver an unwanted baby obviously intrudes into the integrity of her body far more profoundly than do the other invasions for which the Supreme Court has routinely required extremely strong justification --for example, the stomach pumping for evidence invalidated by the Supreme Court in 1952. . . .
If the constitutional protection of our individual rights and human dignity means much of anything, then the freedom to decide whether or not to endure pregnancy must be deemed a fundamental aspect of personal privacy.