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Abortion, rights and the meaning of personhood

By Jocelynne Scutt - posted Wednesday, 29 August 2012


Albeit he said he knows 'people [sic] do become pregnant from rape [and] didn't mean to imply that that wasn't the case', Akin had no difficulty in incorporating the word 'illegitimate' into the explanation of what he had truly intended. There is a context in which rape is illegitimate, he said: that of the false complaint – and false complainant. 'Illegitimacy' applies to claims by women of having been raped, who do so in order to avail themselves, by this subterfuge, of pregnancy termination. In other words, pregnant women who say the pregnancy is a consequence of rape are liars – because no rape – or at least very few - can result in pregnancy. Thus, in his own words it seems that where Senate candidate Akin is concerned, women – not rapists – are the problem.

The idea that women make false claims of rape fits well with the position evident in Akin's stand on abortion: that women are not to be trusted, even (or inevitably) when women's bodies and psyche are directly in issue. This lack of trustworthiness is particularly so with sexual intercourse and its consequences:

  • First, for Akin, a man's assessment of whether a woman has consented to sexual intercourse or not is pre-eminent – effectively, '"no means yes" so long as I, being male, say so' - lies at the heart of the notion that there is 'no such thing as rape' ('legitimate' rape – whether on Akin's initial assertion, or upon his second attempt).
  • Secondly, and similarly, at the heart of the denial of abortion rights to women lie the rights of man. Here, it is the product of male engagement in sexual intercourse that is in issue: the sacredness of sperm is to be maintained, with no woman entitled to discard the essence of manhood; no fertilised ovum can be denied nor have its existence (prematurely) ended.
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This takes us back, then, to the Bill for the 'Sanctity of Human Life Act' and its deeming provision: namely, that 'human life' begins at fertilisation, cloning 'or its functional equivalent' 'at which time every human being shall have all the legal and constitutional attributes and privileges of personhood'.

Ironically, a woman-in-the-womb – or female-before-birth – is, it seems (at least at first glance), to have more rights than she does after birth. After all, women are denied the same rights as men 'in the world' and, in particular, under the US Constitution.

After the US Civil War, the 13th (1865/1865), 14th (1866/1868) and 15th (1869/1870) Amendments were passed. The first relates to the abolition of slavery and involuntary servitude, the second to citizenship and equal protection of law, the third to the right to vote. Despite women's efforts (with male supporters) to have these provisions apply equally to all US female citizens, this did not happen.

'Stand back, ladies, it's the Negroes hour', women were told in the languages of the time. 'Race, color and previous condition of servitude' are the basis upon which the 15th Amendment outlaws denial or abridgement of the right of citizens to vote. Women were not, and are not, included. It took the 19th Amendment, passed some sixty years later (1919), to grant female US citizens the right to vote.

Nor do women have 14th Amendment protection. Under the 14th Amendment, race is a 'suspect classification', laws referring to or based on race (directly or indirectly) being subject to strict scrutiny. To pass the 14th Amendment equality test, any race law must be 'narrowly tailored' to achieve a 'compelling government interest' by the 'least restrictive means'. This is not the test for laws referring to or based in sex/gender. As far as women (African American or non-African American) are concerned, 'intermediate (not strict) scrutiny' only is required. The race and sex/gender standard is differential: women's rights are not equal to men's rights, the abridgement of women's rights not required to be 'narrowly tailored' to achieve a 'compelling government interest' by the 'least restrictive means' possible.

This underpins the Equal Rights Amendment (ERA) battle of the 1970s and 1980s. Drafted by Lucretia Mott in 1923, modified in the 1940s, it says:

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'Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

'Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article …'

Every year the ERA was introduced. Finally, in 1972, it passed both houses, then began its 'tour' to garner the 50 states needed for ratification. Because, by 1979, too few had ratified, the ERA lapsed. Hence, US women remain without constitutional protection for full equality.

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About the Author

Dr Jocelynne A. Scutt is a Barrister and Human Rights Lawyer in Mellbourne and Sydney. Her web site is here. She is also chair of Women Worldwide Advancing Freedom and Dignity.

She is also Visiting Fellow, Lucy Cavendish College, University of Cambridge.

Other articles by this Author

All articles by Jocelynne Scutt

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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