The Abortion Funding Conundrum: Inalienable Rights, Affirmative Duties, and the Dilemma of Dependence

Abstract

In the American Constitutional system rights tend to be individual alienable and negative--such rights belong to persons as individuals; they are subject to alienation by those persons; and they impose on the government a duty to refrain from certain injurious actions. The right of a woman to terminate her pregnancy sheds light on these 3 areas. Although a womans right to terminate a pregnancy was recognized in Roe v. Wade by failing to make abortion free of charge the government requires women to make affirmative use of their bodies for childbearing. In Harris v. McRae the Supreme Court indicated that the government is free to leave poor women to finance abortions without public assistance. A simultaneous decision was made to provide governmental funding for the necessary medical expenses involved in childbirth. Justice Brennan described this as a deliberate effort to discourage the exercise of a constitutionally protected As a result women are forced to sacrifice their liberty and their labor. It is difficult to justify the governments decision not to fund impecunious womens choice of abortion if the right to terminate an unwanted pregnancy is viewed as an inalienable right. The governments affirmative duties are arguably owed to the fetus who can be considered a holder of 5th and 14th amendment rights. Any such right to life cannot be deemed alienable by the unborn. This suggests that the government bears an affirmative duty to protect the interests of the fetus to the extent that it may do so without coercing involuntary pregnancy.