Laws Requiring Trans-Vaginal Ultrasounds Are Constitutional. Should They Be?
Today we have a guest post written by philosopher Neil McArthur. Neil writes regularly on his blog Moral Lust about sexual ethics and the philosophy of sexuality.
In America, you have a right to an abortion, but you don’t have a right to refuse a trans-vaginal ultrasound if your state lawmakers decide to make you have one. People could demand a fundamental right to control their own bodies – but it might have consequences they don’t expect.
Abortion is protected by the “right to privacy” that U.S. law now reads into the Constitution. But as this right is currently interpreted, it does not mean bodily privacy. Courts have always taken seriously an individual’s interest in disposing of her body as she chooses, free from state intrusion. But they have never recognised a right to do this, on par with the right to free speech or free assocation. Prisoners have been unsuccessful, for instance, in challenging mandatory body-cavity searches, and the courts have not ruled decisively against strip-searches in high schools.
The most important decision establishing a constitutional right to privacy, Roe v. Wade, specifically denied a relationship between this right and “an unlimited right to do with one’s body as one pleases”. (This denial is in fact the only actual use of the term “body”, at least to describe a human body, in the entire decision.) The Roe decision was based instead on a woman’s right to determine her identity and the course of her own life. Such a right is without question an important one. But it does not on its own rule out mandatory trans-vaginal ultrasounds.
Cases involving sexual freedom tell a similar story. Another monumental decision, Lawrence v. Texas, which in 2003 invalidated Texas’s anti-sodomy law, grounded its legalisation of gay sex in the right of gay people to form relationships important to their identity, rather than a right to have whatever sex they want. Nor is this a quirk of U.S. law. European and Canadian courts have similarly resisted recognising a basic right to dispose of our bodies as we see fit.
The motivation is clear. A right to do as we please with our bodies would threaten, probably fatally, a wide swath of current laws, including those against prostitution and adult incest. We as a society may want to preserve those laws – for any number of reasons, such as public health and the protection of vulnerable women.
But when we are thinking about rights, or at least about human rights, this is arguably to think precisely backwards. We do not generally start by asking ourselves which activities we want to ban and which to allow, and then decide what rights people have based on our answer. We are supposed to start with our beliefs about the fundamental rights people have, and then ensure the laws conform to them. Aren’t we?
Pretend, for the sake of argument, that there is only one way to give women constitutional protection against laws like the ones mandating trans-vaginal ultrasounds – and that is to recognise a fundamental right to bodily privacy. And pretend we had the power to do so. Now assume, again for the sake of argument, that by recognising such a right, we would make it impossible for the state to regulate activities such as prostitution, bigamy and adult incest. Would you be in favour of recognising such a right? Or would the costs be too high?
Swipe right to make the connections that could change your career.
Swipe right. Match. Meet over coffee or set up a call.
No, we aren't talking about Tinder. Introducing Shapr, a free app that helps people with synergistic professional goals and skill sets easily meet and collaborate.
Is it "perverseness," the "death drive," or something else?
A growing body of research shows promising signs that the keto diet might be able to improve mental health.
- The keto diet is known to be an effective tool for weight loss, however its effects on mental health remain largely unclear.
- Recent studies suggests that the keto diet might be an effective tool for treating depression, and clearing up so-called "brain fog," though scientists caution more research is necessary before it can be recommended as a treatment.
- Any experiments with the keto diet are best done in conjunction with a doctor, considering some people face problems when transitioning to the low-carb diet.
It's up to us humans to re-humanize our world. An economy that prioritizes growth and profits over humanity has led to digital platforms that "strip the topsoil" of human behavior, whole industries, and the planet, giving less and less back. And only we can save us.
- It's an all-hands-on-deck moment in the arc of civilization.
- Everyone has a choice: Do you want to try to earn enough money to insulate yourself from the world you're creating— or do you want to make the world a place you don't have to insulate yourself from?
SMARTER FASTER trademarks owned by The Big Think, Inc. All rights reserved.