Ken Melvin

These two things are not the same.

Giving a woman the right of choice doesn’t deny others that right of choice; makes no imposition on the rights of others. Denying a woman the right of choice imposes the will of others upon her.

When is it lawful for some members of a society to impose their will upon others? What right has the State to impose its will upon its citizens? When it is the writ of law. A State can declare acts to be illegal, even criminal, by the enactment of laws, so long as such laws aren’t in conflict with the State’s constitution. Since at least the 13th century, advanced States’ constitutions have guaranteed certain individual rights. The US Constitution explicitly guarantees certain individual rights and freedoms in the first (8) of its first (10) Amendments. Other rights are implicitly granted with:

the 9th Amendment

  • The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people —

and the 10th Amendment

  • The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people 

Succeeding ratified Amendments have explicitly, and implicitly, guaranteed other individual rights and freedoms. A citizen doesn’t have a constitutional right to steal from others, so it is constitutional to make stealing from others a crime; a case of society having the right to tell someone what they can not do.

So, it seems that the State might have the right to deny a woman the right of choice if women do not have the constitutional right of choice. It seems highly unlikely that such a right would be found in the Constitution or the Bill of Rights since women were but inhabitants, not even granted full citizenship, or even personhood, at the time, or even later when these first 10 Amendments were ratified. Women didn’t get the right to vote until 1920.

Since 1923, activists have been trying to pass the Equal Rights Amendment — an amendment that does not grant or even address a woman’s right of choice. The 1973 Supreme Court Roe vs Wade decision was premised on the right to privacy clause of the 14th Amendment; that the due process clause of the Amendment extended to a woman’s decision to have an abortion. But that this right must be balanced against the State’s interests in regulating abortions: protecting women’s health and protecting the potentiality of human life. As vestiges of serfdom and monarchies?

The Court acknowledges that the decision belongs to the woman, with the caveat that the State has the right to assert its interests; implying that such interests were to be centered around protecting the woman’s health and protecting the potentiality of human life, while implying that the State’s interests might bear the greater weight.

Though no mention was made of religion in the Roe V. Wade decision, in the United States, most arguments against the woman’s right to choose are premised on religious beliefs — this wont to impose one’s beliefs on others. Denying a woman the right of choice imposes the will of others upon her. Isn’t denying a woman the right of choice on the basis of a religious belief a violation of her first amendment rights.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Indeed it is. But in court, these with naught but disdain for science, choose to argue the science.

Does a licensed druggist, who, based on his or her religious beliefs, is opposed to birth control of any form, have the right of choice as to whether or not to sell contraceptives to the consuming public? By refusing to sell the consuming public contraceptives, isn’t the druggist imposing his or her will on others, denying others their right of choice to use contraceptives, by way of denying access? The druggist may be offended, anguished, by the use of contraceptives, but such sale does not deny him or her their right of choice in regards the use of contraceptives. For certain, this same druggist would certainly resist the imposition of the will of others requiring his or her use of contraceptives. Would this same druggist be offended if someone refused to provide them a service because this someone found the druggist’s closely held beliefs offensive?

Does a licensed Doctor have the right to refuse care to someone whose religious, or other closely held, beliefs they find offensive?

Aren’t both these examples instances of discrimination? Haven’t both the hypothetical druggist and doctor discriminated against others under the guise that they found others’ beliefs offensive? Isn’t the personal offense being taken the result of personal prejudice? Finding something offensive is not the same as being offended; one might be unintentionally offended. It is not, in most cases, illegal to offend someone. It can be illegal to discriminate against someone. Federal law prohibits discrimination on the basis of race, gender, pregnancy, national origin (including affiliation with a Native American tribe), religion, disability, citizenship status, genetic information, and age (if the person is at least 40 years old).

What are some other extensions, unintended consequences, of this claim of right of choice based on the taking of offense?

Some ritual practices of deeply held beliefs have been found to be unconstitutional, illegal. Surely the State’s denial of the right to practice such rituals causes those holding such deeply held beliefs anguish, gives those holding such beliefs reason to take offense. A group holding the deeply felt belief that an omnipotent deity created the earth 6,000 years ago would most likely find the scientific theory of evolution offensive. Would the taking of offense give them the right to demand that evolution not be taught in public schools? Would it not be discriminatory to deprive students of those schools access to the best scientific thinking? Does a deeply held religious belief give the holder the right to deny others the right to consider or hold a very different belief?

A slippery slope, this religious one. It is one thing to guarantee freedom of worship, freedom to worship as one sees fit; quite another to restrict the right of others lest they offend any religious sensitivities. Doesn’t the first amendment give us the right to not have religious beliefs imposed on us?