Coerced Birth Control, Individual Rights, and Discrimination

New York Times, January 5, 1991.Google Scholar

New York Times, October 19, 1991.Google Scholar

American Family Physician, July, 1991, pp. 103–108.Google Scholar

New York Times, January 10, 1991.Google Scholar

This was established in 1942 in Skinner y Oklahoma, a sterilization case in which the court maintained “this legislation involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race…. There is no redemption for the individual whom the law touches. He is forever deprived of a basic liberty.” Congress of the United States, Office of Technology Assessment, Infertility: Medical and Social Choices (US Government Printing Office, May, 1988), p. 220.Google Scholar

Ibid. pp. 103–104.Google Scholar

Although the courts have traditionally considered the right to bodily autonomy to be fundamental, there are two different types of instances in which the courts have recently ruled against the individual’s right to decide what will happen in and to their body. In Webster y Missouri and in Bowers y Hardwick, the courts ruled against an individual’s right to use their body in specific practices (i.e., with regard to abortion and homosexual acts). In addition, there have been a number of instances of late in which the court has forced a woman to undergo medical treatments and/or procedures to protect the health of her unborn child. (See “Here Come the Pregnancy Police,” Glamour Magazine, August, 1990, pp. 203–205, 263–266.) Neither of these instances, however, is relevant to the issue of coerced birth control.Google Scholar

Infertility: Medical and Social Choices, p. 204.Google Scholar

Ibid. p. 205.Google Scholar

See, e.g., Feinberg, Joel, Harm to Self, Vol. 3. Oxford University Press, Oxford, 1986, pp. 52–53, where he uses bodily autonomy as the basis for explaining personal autonomy and sovereignty. See Shafer, Carolyn M. and Marilyn Frey, “Rape and Respect,” in Women and Values: Readings in Recent Feminist Philosophy by Pearsall, Marilyn Wadsworth Publishing Company, California, 1986, pp. 188–196, where bodily autonomy is the basis for explaining domain and rightful power of consent and thus, why one has a right not to be raped. See Thomson, J. J. “A Defense of Abortion,” in Pearsall, pp. 268–279 where bodily autonomy is part of her justification for the right to an abortion.Google Scholar

In Roe y Wade, the court held: going back perhaps as far as Union Pacific R. R. Co. y Botsford (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution…. These decisions make it clear that only personal rights that can be deemed `fundamental’ or `implicit in the concept of ordered liberty,’… are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage,… procreation,… contraception,… family relationships,… and child rearing and education.… The Court’ s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate…. a state may properly assert important interests in safe-guarding health, in maintaining medical standards, and in protecting potential life.“ From Mappes, Thomas A. and Jane S. Zembaty, Social Ethics: Morality and Social Policy. Fourth Edition, McGraw-Hill, New York, 1992, pp. 41–42.Google Scholar

Mill, J. S. On Liberty Bobbs-Merrill, New York, 1956, Chapter 1 paragraph 9.Google Scholar

For example, Feinberg considers five other grounds forlimiting individual liberties; offense to others, harm to self, punishment of sin, benefit to self, and benefit to others, in “Grounds for Coercion,” Social Philosophy, Prentice Hall, Englewood Cliffs, NJ, 1973, pp. 20–45.Google Scholar

A similar view is maintained by the European Convention on Human Rights. (See European Law Review, vol. 8, 1983, Dudgeon Case, p. 205.)Google Scholar

Tauer, Carol A. “AIDS: Towards an Ethical Public Policy,” AIDS and Ethics (Biomedical Ethics Reviews: 1988), eds. Almeder, Robert F. and James Humber, Humana Press, 1989, pp. 79–102.Google Scholar

See, e.g., “Jew Ho v Williamson,” Federal Reporter, 1900:103 pp. 10–27 (Northern Dis trict of California Circuit Court).Google Scholar

See, e.g., Mills, Michael, Constance Wofsy, and John Mills, “The Acquired Immunodeficiency Syndrome: Infection Control and Public Health Law,” New England Journal of Medicine 314 (April 3, 1986) pp. 931–936 and Steinbock, Bonnie, “Harming, Wronging, and AIDS” in AIDS and Ethics (Biomedical Ethics Reviews: 1988), eds. Almeder, Robert F. and James M. Humber, Humana Press, 1989, pp. 27–43.Google Scholar

Tauer Ibid., Mills, Wofsy and Mills, Ibid. Google Scholar

See Jew Ho y Williamson. See Camara y Municipal Court. US Reports 1967; 387, 523–540.Google Scholar

See Jew Ho y Williamson, p. 18.Google Scholar

See, e.g., Mills, Wofsy, and Mills, “The Acquired Immunodeficiency Syndrome: Infection Control and Public Health Law,” and Steinbock Bonnie, “Harming, Wronging, and AIDS.”Google Scholar

Federal Reporter 653, 2nd Series, “Rennie v Klein,” p. 836. See also, Mills, Wofsy, and Mills, “The Acquired Immunodeficiency Syndrome: Infection Control and Public Health Law,” Rock y Carney,Michigan Reports 1921; 216 280–291. (Supreme Court). Barmore y Robertson. Northeastern Reporter 1922; 134 815821. (Illinois Supreme Court).Google Scholar

See,e.g., Jew Ho y Willliamson, p. 11.Google Scholar

See Corea, Gena. The Hidden Malpractice, Harper & Row, New York, 1985, p. 150. This figure refers to National Institute of Health funding at the time of publication. According to the Program Analysis Branch of the National Institute of Child Health and Human Development of the NIH, the proportional funding of birth control research in 1991 has significantly improved. According to an in-house analysis done on a project-by-project basis, excluding research on sterilization, of the $18,000,000 funded by the NIH for birth control research in 1991, 57% was directed toward female fertility whereas 43% was directed toward male fertility. No information on private funding of research is currently available.Google Scholar

Corea, pp. 178–88. Arditti, Rita. “Have You Ever Wondered about the Male Pill?” in Seizing Our Bodies: The Politics of Women’s Health. ed. by Claudia Dreifus, Random House, New York, 1977, pp. 126–127.Google Scholar

Corea p. 150, 177, 179–188. Arditti, Rita, pp. 121–128.Google Scholar

Corea, pp. 149–176. Vimal Balasubrahmanyan, “Women as targets in India’s family planning policy,” and Scarlet Pollock, “Refusing to take women seriously: `side effects’ and the politics of contraception,” in Test-Tube Women: What Future for Motherhood? ed. by Rita Arditti, Renate Duelli Klein, and Shelley Minden, Pandora Press, Boston, 1984, pp. 153–164, 138–152.Google Scholar

Corea, p. 178.Google Scholar

Corea, pp. 177–178. Rita Arditti, Seizing Our Bodies, pp. 11–12. ³⁰Corea, p. 178.Google Scholar

See,e.g., Shafer and Frye. “Rape and Respect.” See also Foa, Pamela. “What’s Wrong with Rape,” in Vetterling-Braggin, Mary et al. eds. Feminism and Philosophy. Littlefield, Adams & Co., New Jersey, 1977, pp. 313–332 and Peterson, Susan Rae. “Coercion and Rape: The State As a Male Protection Racket,” pp. 360–371.Google Scholar

New York Times National, February 1, 1992, p. 7.Google Scholar

For a discussion of the treatment of secondary discrimination in the law,see MacKinnon, Catherine A. Feminism Unmodified: Discourses on Life and Law. Harvard University Press, Cambridge, 1987, pp. 64–65.Google Scholar

If I own a contracting company and only employ carpenters belonging to union X, a union that I know discriminates against minority workers, I cannot avoid the charge of discrimination by insisting that /personally am not discriminating. Nor can I claim that I have no moral responsibility for discrimination when I knowingly join a restricted country club. Even if I join the club simply because I wish to use their facilities (and not because I want or intend to discriminate), I am still morally culpable for supporting unjustifiable discrimination.Google Scholar

Corea, pp. 151–159, 170–175. Seaman, Barbara. “The Dangers of Oral Contraception,” Arditti, Seizing Our Bodies, p. 75–85.Google Scholar

Corea, pp. 150, 159–165. Dowie, Mark and Tracy Johnston, “The Case of Corporate Malpractice and the Dalkon Shield,” in Seizing Our Bodies, pp. 86–104.Google Scholar

Corea, pp. 165–169, 175–176. Phillida Bunkle, “Calling the shots? The international politics ofdepo-provera,” in Seizing Our Bodies, pp. 165–187.Google Scholar

Indeed, I would argue that one should do so. Sadly, the courts often neglect to do so and as a result, far too many children remain under custodial control of abusive parents.Google Scholar

I do not here intend to suggest that this alternative is one that does not have serious drawbacks. The plight of children who are in the custodial care of the state would be difficult in the best of circumstances; and unfortunately, given the state of foster care in the US currently, the plight of such children is very difficult indeed. I am simply maintaining that the harm caused to children who would be born under these circumstances (and placed in foster care), would not be as great as the harm done to those whose basic rights would be abrogated under a policy of coerced birth control as well as the harm done to the society as a result of adopting such a policy.Google Scholar

New York Times, February 9, 1991.Google Scholar

New York Times, February 9, 1991.Google Scholar

Indeed, according to Beth Conover, RN MS (in genetic counseling) of the Nebraska Terategon Project, University of Nebraska Medical Center, at present, studies linking birth defects with chemical use have only established a significant risk of birth defects in the instance of alcohol abuse and the use of accutane, a prescription drug used to treat acne. (In fact women are coerced to use birth control as a condition of receiving a prescription for accutane.) Preliminary studies on illegal drugs indicate a moderate risk of birth defects linked to cocaine usage, but it has not yet been established to what degree this risk is connected to the concurrent abuse of alcohol. Finally, it should be noted that this is the only policy that is discussed in this paper for which men may not be targets, i.e., based on current studies, there is no clear evidence that male chemical abuse is linked to any birth defects.Google Scholar

There are certainly other instances that might justify coerced birth control which I have not considered here. For example, a policy of coerced birth control might be justified in situations of serious overpopulation. Thus in countries where population significantly outreaches available food supply, the state might be justified in coercing birth control to prevent large scale harm to the society of further overpopulation. But not only would it be necessary to construct such policies so they would be nondiscriminatory in nature, it would also be necessary to determine that no less restrictive policy (e.g., education, readily available selection of birth control devices, and so on) would be equally efficacious.Google Scholar

Note that this description does not appear to apply in the instance of AIDS. This is because “most infants who become infected acquire the virus [AIDS] during the birthing process.” (New York Times, January 7, 1992. p. C-3.) Studies are currently underway that are testing methods to prevent the spread of the disease during the birth process. If successful, having AIDS will not impact on one’s role as biological parent. In addition, “All children with HIV-infected mothers test positive at birth. In the first few years of life, however, many seroconvert’ as their own immune systems develop, and they grow up free of the disease.” (Parade Magazine, February 23, 1992) As such, we are not currently able to determine the probabilities of an HIV-infected parent producing a child with AIDS.Google Scholar

See Wilson, Jean et al. ed., Harrison’s Principles ofInternal Medicine, 12th edition McGraw-Hill, New York, 1991.Google Scholar

I would argue that in the third scenario, the instance of alcohol or drug abuse you are still often dealing with a disease and as such, no culpability should attach to the individual.Google Scholar