Julian Posted: Mar 13 2004, 03:11 PM
In fact, I think all "rights" (including the inalienable ones) are better expressed as their negatives - I do not have the right to life, I just have the right not to be killed...
and so forth.
I think Julian mixes up the notion of 'rights' and 'guarantees' -- A right is the thing to be protected, it is always the positive case (Right to life; Right to Liberty, etc), the negative is merely the preservative of that right (The right not to be killed; the right not to have your freedom abridged. Whether it can be protected, whether there are natural or human forces that will abridge that right is not carried in the negative expression but in the simple fact that Rights are not guarantees.
That said, the 'right' to reproduce does not derive from any notion about having/not-having children, but from the IV Amendment - the right to be secure in your person...against unreasonable search and seizure... That is, though it is not guaranteed that you can or will have children, the right is preserved by the injunction (negative case) against any person or public/private entity from preventing you from attempting to have children. It is from that right, the right to be secure in our persons, that the right of privacy emenates. And, it is from that right that ones jurisdiction over their body should be recognized and that the preservative (negative) case should operate, i.e. all reproductive right (birth, abortion, contraception. By the fourth amendment, these are matters of maintaining one's person, the integrity of the body, and should not be subject to 'unreasonable' search or seizure (i.e. is a private matter wholly within the jurisdiction of the person).
If one elects to have a child, of course, that right no longer applies because the 'thing in the body' is now external and, under law, has a new definition, a 'person' on its own and entitled to its own set of protections. That is why a baby may be taken at birth if a mother is deemed unfit.
However, the only get-around for the right of people to be secure in their persons, which should include the right to give birth (as well as the right to abort) and any other procedure one wishes to visit on their body is iff the state can show a 'compelling interest' in abridging the right secured through the IV Amendment.
As I have written elsewhere, the only two arguments I can think of that establish that compulsion are 1) the compelling interest to prevent abortions (or even compel people to have children) if the population of the country drops so low as to represent an immediate danger to preserving the country; or, 2) the population became so great as to represent and immediate threat and danger to preserving the nation. In that case they might compel things sterilization and abortion as a means of lowering that rate.
These may be 'unthinkable' conditions. But I can think of no other circumstance it which it is really anybody's business but the person who owns the body at issue. Jurisdiction decides the matter long before any questions of practicality or morals or parenting or anything else enters the picture.