HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Friday, August 19, 2022

The Right to Abortion as a Right to Self-Defense (or the Right to Refuse to Help Your Attacker) and Other Possible Remaining Paths to Regain the Right to Choose

Michelle M. Wu (affiliation not provided to SSRN), The Right to Abortion as a Right to Self-Defense (or the Right to Refuse to Help Your Attacker) and Other Possible Remaining Paths to Regain the Right to Choose, SSRN (2022):

Throughout American’s history, federal and state governments have found ways to deny equal standing to various classes of people based on their identities (e.g., race / slavery). In such cases, the majority of lawmakers or judges passing or upholding discriminatory laws were immune to the laws themselves because of their very identities (e.g., slavery laws did not apply to white men). The Dobbs opinion on abortion rights is one of the most recent examples of the denial of rights to a class of people, and its language shows the same markers of bias that stained earlier, now discredited acts. This article offers unconventional strategies to defeat abortion laws that might survive such biases, including the right to self-defense (or the right not to help/house your attacker), the violation of the Establishment Clause, and the right to equal protection in a manner not yet considered by the Court. Each of these general claims is not new, but the specific applications are, particularly in light of Dobbs.

The most straightforward of these is the right to self-defense, as it makes irrelevant many of the most fraught issues in the debate, from when human life begins to viability. The Court opened up a new path to challenge abortion laws when it ruled that states have the right to define a zygote, embryo, or fetus as a human being and protect it as such. If human, a fetus logically gains not only the privileges of humanity but also must be subject to its limitations. A human does not have the right to batter, assault, or steal from another human being, and it is on this premise that a right to abortion becomes equivalent of the right to self-defense. The state may have the right to determine when human life begins, but self-defense erects a barrier to bias in that it prohibits the state from giving greater priority to that new life over the existing life it attacks.

The second argument is that legislatures’ adoption of religious definitions for terms that have no objective definition violates the Establishment Clause. Such adoption creates the very harm the Clause was designed to prevent -- the persecution of other faiths by a majority faith. The final argument is that equal protection means that the state cannot give any person the right to subjugate another person’s body to their will, as doing so necessarily elevates the privileges of one while denying the same to another.

https://lawprofessors.typepad.com/healthlawprof_blog/2022/08/the-right-to-abortion-as-a-right-to-self-defense-or-the-right-to-refuse-to-help-your-attacker-and-other-possible-remaining.html

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