Roe v. Wade has received much criticism from both sides of the political spectrum. These critiques diverge divisively but for one commonality. Specifically, commentators from both the pro- and anti-choice camps have expressed concern about the absence of an express constitutional right to privacy, upon which the Supreme Court in Roe based its finding of a “fundamental” right to abortion. This lack of express constitutional provision renders the Roe decision, and its resulting reproductive rights, vulnerable. Further, pro-choice advocates find fault with the privacy basis because it yields no positive rights to funding or governmental support for accessing abortion services. When based upon a right to privacy, the right to abortion is relegated to the land of negative rights. The negative right to privacy might provide some women with reproductive choice free from government intrusion, but for other women—those with limited resources—the so-called “choice” becomes nonexistent.
This article investigates whether these two shortcomings—the absence of positive rights and the lack of express constitutional language—inherent in the right to privacy might be redressed by reframing Roe in the language of property, and specifically a woman’s property right in her uterus. Assuming arguendo the anti-choice tenet that the fetus is a person from the moment of conception, this article sets forth an argument that the fetus is an unwanted trespasser in the woman’s uterus whom the woman has a right to eject. Further, this article posits that this property-based notion of abortion might justify government funding for abortions based on a constitutional obligation to maintain a system designed to protect women’s uterine property, similar to states’ obligations to maintain a police force in order to protect other forms of private property, including the removal of trespassers. In short, this article provides a new basis for abortion rights that takes advantage of the long-standing traditional notions of property law and the right to exclude, as well as the public support that attaches to that right, manifested through anti-trespass systems. After establishing the property-based argument, the article explores what might be gained, and what might be lost, by adopting such a premise for abortion rights and access. Among these considerations is whether the anti-trespass scheme might push the abortion discourse beyond the typical polarizing rhetoric surrounding both the pro-choice and anti-choice camps, thus generating space for forward movement and meaningful work.
Rebecca L. Rausch,
Reframing Roe: Property over Privacy,
27 Berkeley J. Gender L. & Just.