On Finding Yourself in a State of Nature

Jordan Pascoe

doi:10.5206/fpq/2019.3.6210

Abstract

I defend the right to an abortion at any stage of pregnancy by drawing on a Kantian account of consent and innate right. I examine how pregnant women are positioned in moral and legal debates about abortion, and develop a Kanitan account of bodily autonomy in order to pregnant women’s epistemic authority over the experience of pregnancy. Second, I show how Kant's distinction between innate and private right offers an excellent legal framework for embodied rights, including abortion and sexual consent, and I draw on the legal definition of sexual consent in order to show how abortion discourse undermines women's innate right. I then explore Kant’s treatment of the infanticidal mother, and draw out the parallels between this case and contemporary abortion rights in order to develop a distinctly Kantian framework of reproductive rights in non-ideal conditions. Finally, I explore the implications of this non-ideal approach for contemporary abortion discourse, arguing that debates about the legality of abortion should more broadly engage the barbaric conditions of reproductive injustice.

Highlights

You May Find Yourself Chained to a Hospital Bed When Laura Pemberton opted to deliver her second baby at home after a hospital refused her a VBAC, the sheriff came to her house
The legal framework of abortion in the United States, which organizes itself around viability, frames the right to an abortion as a “balancing test” between a woman’s right to privacy and the state’s interest in protecting the life of the fetus
Viability—or the point at which a fetus might survive outside its mother—operates as the tipping point beyond which a pregnant woman’s privacy and right to her own body may be supervened by the state in a variety of ways

Summary

Introduction

You May Find Yourself Chained to a Hospital Bed When Laura Pemberton opted to deliver her second baby at home after a hospital refused her a VBAC (vaginal birth after C-section), the sheriff came to her house. By clarifying the relationship between the body and the possibility of external freedom, and drawing on both Kant’s account of embodied consent and his story about the infanticidal mother and the “pop-up” state of nature, I will emphasize that respect for women’s autonomy requires that the reasons one seeks an abortion need not be intelligible from the perspective of law.

Results

Conclusion