Hostname: page-component-78c5997874-lj6df Total loading time: 0 Render date: 2024-11-10T22:34:02.042Z Has data issue: false hasContentIssue false
  • English
  • Français

A Problem of Self-Ownership for Reproductive Justice

Published online by Cambridge University Press:  25 March 2021

ELIZABETH LANPHIER
Get access Rights & Permissions [Opens in a new window]

Abstract

This paper raises three concerns regarding self-ownership rhetoric to describe autonomy within healthcare in general and reproductive justice in specific. First, private property and the notion of “ownership” embedded in “self-ownership,” rely on and replicate historical injustices related to the initial acquisition of property. Second, not all individuals are recognized as selves with equal access to self-ownership. Third, self-ownership only justifies negative liberties. To fully protect healthcare access and reproductive care in specific, we must also be able to make claims on others to respect, protect, and fulfill our positive rights. As much as nondomination remains an urgent demand for reproductive rights, it does not go far enough to ensure reproductive justice.

Keywords

autonomyself-ownershipreproductive justicereproductive rightsnegative libertypositive rightsnondominationproperty rightshealthcare access
Type
Special Section: Decision Making and Leadership in Crises and Beyond
Information
Cambridge Quarterly of Healthcare Ethics , Volume 30 , Issue 2 , April 2021 , pp. 312 - 327
Copyright
© The Author(s), 2021. Published by Cambridge University Press

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Notes

1. See Brennan, J, van der Vossen, B. The myths of the self-ownership thesis. In: Brennan, J, van der Vossen, B, Schmidtz, D, eds. Routledge Handbook of Libertarianism. New York: Routledge; 2017.CrossRefGoogle Scholar

2. See Lowe, D. The deep error of political libertarianism: Self-ownership, choice, and what’s really valuable in life. Critical Review of International Social and Political Philosophy 2020;23(6):683–705. doi: 10.1080/13698230.2018.1479819 CrossRefGoogle Scholar

3. See Sobel, D. Backing away from libertarian self-ownership. Ethics 2012;123(1):32–60.CrossRefGoogle Scholar

4. Locke, J. Two Treatises on Government. Cambridge: Cambridge University Press; 1988, at19.CrossRefGoogle Scholar

5. Pateman, C. Self-ownership and property in the person: Democratization and a tale of two concepts. Journal of Political Philosophy 2002;10(1):20–53, at 25.CrossRefGoogle Scholar

6. See note 2, Lowe 2018, at 9.

7. Nozick, R. Anarchy, State, and Utopia. New York: Basic Books; 1974, at 171.Google Scholar

8. See note 7, Nozick 1974, at 172.

9. Although it is complicated for feminist ethics in particular, which on the one hand endorses bodily integrity and bodily self-determination, especially for women who have historically been denied bodily self-determination, and on the other hand underscores the myth of individual autonomy in favor of theories of relational autonomy.

10. Beauchamp, TL, Childress, JF. Principles of Biomedical Ethics. 8th ed. New York: Oxford University Press; 2019.Google ScholarPubMed

11. Kukla, R. Conscientious autonomy: Displacing decisions in health care. Hastings Center Report 2005;35(2):34–44, at 34–5.Google ScholarPubMed

12. McGill, E. Relational autonomy and ameliorative inquiry. Southwest Philosophy Review 2020;36(1):121–34.CrossRefGoogle Scholar

13. See Oshana, MA, ed. Personal Autonomy and Social Oppression: Philosophical Perspectives. New York: Routledge; 2014.CrossRefGoogle Scholar

14. See note 4, Locke 1988, at 268.

15. See note 4, Locke 1988, at 269. Further, when Locke speaks to all men having perfect freedom and equality, I presume he imagined only particular races and classes of men.

16. See note 4, Locke 1988, at 271.

17. See note 4, Locke 1988, at 286.

18. See note 4, Locke 1988, at 286.

19. See note 4, Locke 1988, at 288.

20. See note 4, Locke 1988, at 288.

21. See note 4, Locke 1988, at 290.

22. Writing prior to Locke, in the first half of the seventeenth century, Hugo Grotius also saw use as a necessary condition for property ownership and connected use of consumables like clothing or food to the occupation or habitation of territory, suggesting that: “A thing that cannot be occupied cannot become property and remains open to the common use of everyone.” As cited in Pateman, C, Mills, C. Contract and Domination. Cambridge: Polity Press; 2007, at 48.Google Scholar

23. Waldron, J. Enough and as good left for others. Philosophical Quarterly 1979;29:319–28, at 322.CrossRefGoogle Scholar

24. See note 23, Waldron 1979, at 323.

25. See note 23, Waldron 1979, at 322.

26. Dodds, S. Justice and indigenous land rights. Inquiry 1998;41(2):187–205.CrossRefGoogle Scholar

27. See note 22, Pateman, Mills 2007.

28. Stilz, A. On common ownership. Ethics and International Affairs 2014;28(4):501–10.CrossRefGoogle Scholar

29. As cited in Rose, CM. Property and Persuasion: Essays on the History, Theory and Rhetoric of Ownership. Boulder: Westview Press; 1994, at 11.Google Scholar

30. See note 4, Locke 1988, at 294.

31. Unless by some chance the wildlife population in that portion of the sea happened to thrive on canned tomato soup, which is an imaginable, but unlikely, possibility.

32. See note 29, Rose1994, at 11.

33. Thomson, JJ. The Realm of Rights. Cambridge: Harvard University Press; 1990, at 324. Emphasis in original.Google Scholar

34. See note 33, Thomson 1990, at 326.

35. See note 29, Rose 1994, at 12. The emphases in the text are Rose’s own.

36. See note 29, Rose 1994, at 12.

37. See note 29, Rose 1994, at 14–6. The question of what kind of communication is legible to others, and what happens when one claims that something is theirs in a way that is not understood by others, remains a problem for Rose’s view that would need significant development.

38. See note 29, Rose 1994, at 16.

39. The worry would be when those who are not generally in positions of power, who have been historically marginalized, excluded from rights like ownership, or otherwise oppressed, communicate the taking of a claim that is not heard by the dominating power because it chooses to not hear or understand the claims made by the minority or marginalized group or individual. I take it that part of claiming ownership over “my body” in the reproductive rights arena is meant as an expressive act, and one that falls short in part because women (cis and trans) are not historically recognized as legitimate holders of rights to claim something as “mine.”

40. See note 33, Thomson 1990, at 329.

41. See note 33, Thomson 1990, at 333.

42. See note 33, Thomson 1990, at 333.

43. See note 33, Thomson 1990, at 342.

44. Petchesky, RP. The body as property: A feminist re-vision. In: Ginsburg, FD, Rapp, R, eds. Conceiving the New World Order: The Global Politics of Reproduction. Berkeley: University of California Press; 1995, at 387–406.Google Scholar

45. See note 44, Petchesky 1995, at 387.

46. See note 44, Petchesky 1995, at 388.

47. See note 44, Petchesky 1995, at 393.

48. See note 44, Petchesky 1995, at 390.

49. See note 44, Petchesky 1995, at 403.

50. See note 44, Petchesky 1995, at 403.

51. Programs for this kind of re-imagining of care and rights are detailed in Lanphier E. An institutional ethic of care. In: Guidry-Grimes L, Victor E, eds. Applying Nonideal Theory to Bioethics: Living and Dying in a Nonideal World. Springer; 2021. Lanphier E. Ethical home: Making, remaking, and unmaking moral community. Social Philosophy Today 2020; 36.

52. Here I am thinking primarily about how societies have failed to recognize women, and racial or ethnic minorities as fully autonomous political agents within a society, and not how minors or people lacking competent decision-making capacity are not fully autonomous agents in either political or biomedical settings.

53. Williams, P. The Alchemy of Race and Rights. Cambridge: Harvard University Press; 1992.Google Scholar

54. Cudd AE. Feminism and libertarian self-ownership. In: Brennan J, van der Vossen B, Schmidtz D, eds. Routledge Handbook of Libertarianism. New York: Routledge; 2017, at 133. Although Cudd says self-ownership is essentially a fiction, Pateman problematizes the self differently, noting that as a concept the self is more amorphous and less accepted than the concept of the person, another reason she defers to property in the person rather than self-ownership (see note 5, Pateman 2002, at 23).

55. See note 54, Cudd 2017, at 128.

56. See note 54, Cudd 2017, at 135.

57. The cross and compensate thesis assumes or requires that appropriate amounts of compensation can be identified, and that individuals have the means to compensate those they have crossed. In practice neither of these may be the case.

58. The exception could be a rape case in which a civil suit was brought and damages were found to be owed, but this is a penalty for a harm, not compensation for an acceptable crossing.

59. See note 54, Cudd 2017, at 136 and 137. This view of autonomy is in line with prominent feminist and relational conceptions of autonomy we see in: Friedman, M. Autonomy, Gender, Politics. New York: Oxford University Press; 2003.;CrossRefGoogle Scholar Mackenzie C, Stoljar N, eds. Relational Autonomy Feminist Perspectives on Autonomy, Agency and the Social Self. New York: Oxford University Press; 2000.; Meyers DT. Self, Society and Personal Choice. New York: Columbia University Press; 1989.; Christman J. The Politics of Persons. Cambridge: Cambridge University Press; 2009.

60. See note 54, Cudd 2017, at 136.

61. See note 54, Cudd 2017, at 127.

62. See note 54, Cudd 2017, at 127.

63. I am only considering safe, evidence-based abortion methods. In the absence of safe and legal medical abortions, pregnant people are forced to identify methods for self-aborting that are often unsafe, unproven, and can lead to harmful complications.

64. Mill, JS. On Liberty. New Haven, CT: Yale University Press; 2003.Google Scholar

65. Matose T, Lanphier E. Rights do not stand alone: Responsibility for rights in a pandemic. American Journal of Bioethics 2020;20(7):169–172.

66. Including engaging first personal experience and narrative as method. See for example: Beauvoir, S. The Second Sex. Borde, C, Malovany-Chevallier, S, trans. New York: Alfred A. Knopf; 2010.Google Scholar Brison SJ. Aftermath: Violence and the Remaking of a Self. Princeton: Princeton University Press; 2001.; Collins PH. Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment. New York: Routledge; 2002.

67. As shown in the New York Times 2020 June 29.

68. Wellman, Carl says “human fetuses are not possible right-holders.” Wellman C. The concept of fetal rights. Law and Philosophy 2002;21(1):65–93, at 89.Google ScholarPubMed

69. When considering human rights for fetuses, legal scholar Michelle Goodwin argues that “fetuses and embryos lack legal human identity in virtually all forms of law” (224), though she recognizes laws that extend health care to pregnant people via their fetus as a future unborn child nonetheless exist and paradoxically erode at women’s rights in that they “primarily burden women and in unique and pernicious ways” (196). Goodwin, M. If embryos and fetuses have rights. Law & Ethics of Human Rights 2017;11(2):189–224.CrossRefGoogle Scholar

70. Feinberg, J. Harm to Others. New York: Oxford University Press; 1984, at 96.Google Scholar

71. Thomson, JJ. A defense of abortion. Philosophy and Public Affairs 1971;1(1):47–66 Google Scholar. Thomson indicates that it is important to demonstrate the moral permissibility of abortion even if a fetus is a person, thus changing the focus of debates about the ethics of abortion.

72. Block, W, Whitehead, R. Compromising the uncompromisable: A private property rights approach to resolving the abortion controversy. Appalachian JL 2005;4:1.Google Scholar

73. There is already a robust and growing literature on the topic: Anderson E. Is women’s labor a commodity? Philosophy & Public Affairs 199071–92.; Anderson, E. Value in Ethics and Economics. Cambridge: Harvard University Press; 1995.;Google Scholar Wertheimer A. Exploitation and commercial surrogacy. Denver University Law Review 1996;74:1215–29.; Epstein RA. Surrogacy: The case for full contractual enforcement. Virginia Law Review 1995:2305–41.