The Application of the Eighth Amendment to Assure the Stability of Abortion Rights
(Further Arguments, Details, and Explanations are Available in “An Abortion Amendment Alternative”
(Parts 1 – 6.))
Years ago, for the long-winded (six-part!) article entitled, “An Abortion Amendment Alternative,” affectionately dubbed, “The Triple A Argument,” I attempted to validate the suitable application of the Eighth Amendment to Roe v. Wade. The reasons for this were many. One, the Fourteenth (and others) Amendment’s assurance of privacy is often criticized as inapplicable to abortion rights (and this truly may be the case). And two, Americans seem to care less about their “right to privacy” and debatable definitions of citizenship, personhood, and liberty than they do about the right to not be subjected to torture. But, since most people would rather not read a lengthy six-part argument, I challenged myself to shorten it and provide a summary here, one that I hoped could demonstrate that the Eighth Amendment is an acceptable, and even necessary, replacement, in case the Fourteenth Amendment’s suitability is ever criticized to the point that Roe v. Wade is overturned. This possibility increasingly seems more and more likely as American women’s reproductive rights are chipped away at a rapidly alarming rate. Truth be told, the “need for panic” is either very imminent or here already. However, as I pondered the possibility of such an application, the necessity of discovering and explaining what could end up being a crucial “fall back plan” to secure abortion rights, while at the same time creating an easy-to-digest summary, proved more difficult than fitting a camel through the eye of a needle. Increasing the probability of hammering this crucial idea home and convincing skeptics of the argument’s infallibility takes time. So what started out as an attempt to formulate a synopsis turned into an endeavor to leave no stone unturned… and I have to say (“self-back-patting” moment), the chances that even a single stone has been untouched are pretty slim. Never before have I formulated such an original argument and been so confident of its ability to convince rational people of its truth. In this case, if a federal or state law forces women to remain pregnant against their will, it would constitute a direct violation of the Eighth Amendment’s “no cruel and unusual punishment” clause.
In the case of Roe v. Wade, the Supreme Court determined that the state of Texas violated “Jane Roe’s” constitutional right to privacy via Texas’ ban on abortion in all circumstances except to save the lives of pregnant women. The Court recognized and explained that the First, Fourth, Ninth, and Fourteenth Amendments establish a “zone of privacy” for American citizens protecting them against state laws that seek to encroach upon aspects of life that are perceived as private, such as marriage, sex, contraception, and parenthood. Since past cases valued the importance of a “zone of privacy” in regards to certain activities and states of being, the Court then argued that the Constitution encompasses “broad enough” wording to include “a woman’s decision whether or not to terminate her pregnancy.” And just as this article/argument will establish, the Court’s landmark 1973 decision recognized that pregnancy, particularly unwanted pregnancy, includes and causes a myriad of physical, psychological, economic, and emotional stress in pregnant women. However, the Court should have taken this recognition one step further. By taking “certain liberties” with the phrasing and intent of several amendments, most notably the fourteenth, the Court left our country, as well as every woman who values reproductive freedom and her right not to be treated as less valuable than a microscopic cell cluster or as only valuable as a breeding animal, to an onslaught of restrictive laws that effectively prohibit and reduce the ability to terminate pregnancy without directly and openly violating the Supreme Court’s mandate or ignoring Court-established constitutional rights. But the Eighth Amendment leaves no room open for interpretation in its protection of reproductive freedom and abortion rights. And although the word “abortion” is absent, it is highly likely that even the legally ignorant would be forced to admit that forced pregnancy would qualify as a constitutional violation upon reading the text. After all, the words “water boarding” is not present in the wording of the Eighth Amendment, but it doesn’t take a genius to reason that this torture technique qualifies as cruel and unusual punishment under the parameters established by the amendment and by the protective precedent decisions justified by the Court. Why the Supreme Court chose to apply the “abortion ambiguous” framework of the Fourteenth, and three other accompanying amendments, to construct a ruling in favor of legalizing abortion is beyond my capability to understand, rationalize, and make excuses. But despite the misapplication of the various constitutional rights employed by the Roe v. Wade decision, hope is far from lost for women who see themselves as autonomous beings fully capable of deciding when or whether to procreate, despite the mind-numbing amount of states that are “back-dooring” laws that are legally and federally prohibited from entering through the front door because of the Court’s now 40-year-old decision.
The Eighth Amendment of the Constitution states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The United States Supreme Court often relies on unspecific, yet generally agreed upon principles to decide whether or not a particular punishment is “cruel and unusual,” and therefore a violation of the Eighth Amendment. These precepts were conceived by Justice William Brennan in 1972 for the case, Furman v. Georgia (408 U.S. 238), which pertained to whether imposing the death penalty in this case might be cruel and unusual. Justice Brennan specified, “There are… four principles by which we may determine whether a particular punishment is ‘cruel and unusual’.”
According to Brennan, the four principles used to determine whether a sentence, punishment, or consequence of a law is ‘cruel and unusual’ are…..
1. A punishment that is unusually severe…
If the punishment, by its severity, is “degrading to human dignity,” especially if it’s torturous, then the punishment is cruel and unusual. The duty to prevent debasement and extreme distress of the body and mind, as well as unbearable physical pain, is essential.
2. A strong probability that the punishment is inflicted arbitrarily…
If “a severe punishment is obviously inflicted in a wholly arbitrary fashion,” then it may qualify as cruel and unusual.
3. A punishment that is substantially rejected by contemporary society…
“A severe punishment that is clearly and totally rejected throughout society” may also be a direct violation of the Eighth Amendment.
4. A punishment that seemingly does not serves any penal purpose more effectively than some less severe punishment…
And finally, if “a severe punishment is patently unnecessary,” due the fact that alternatives exist or the “punishment does not fit the crime,” it must be evaluated and examined as possibly cruel and unusual.
Brennan later appended, “The function of these principles… is simply to provide [a] means by which a court can determine whether a challenged punishment comports with human dignity. [The four principles] are therefore, interrelated, and, in most cases, it will be their convergence that will justify the conclusion that a punishment is “cruel and unusual.” The test, then, will ordinarily be a cumulative one… If [the parameters are met, then] the continued infliction of that punishment violates the command of the [Eighth Amendment's] Clause that the State may not inflict inhuman and uncivilized punishments upon those convicted of crimes.” (However, the Supreme Court has also declared that cruel & unusual punishment was apparent and applied even in cases in which all four qualifications were not met.)
The United States Supreme Court found it unlikely that lower courts or states would blatantly, purposefully, or conspicuously violate all of the four principles for establishing a violation of the Eighth Amendment. So they set an almost exact standard, albeit non-cumulative, for the existence of such a circumstance by stipulating that “a punishment would be cruel and unusual [,if]…
1. It was too severe for the crime or
2. [If] it was arbitrary,
3. If it offended society’s sense of justice, or
4. If it was not more effective than a less severe penalty.”
Cases that preceded Furman v. Georgia also demonstrated the necessity of the Eighth Amendment’s insurance that American citizens are protected against cruel and unusual punishment, as well as established further parameters for whether certain punishments “counted” as cruel and unusual. In the 1958 case, Trop v. Dulles (356 U.S. 86), the Supreme Court held that removing U.S. citizenship status from a natural-born citizen was cruel and unusual, but not torturous. However, due to the fact that ostracism, and possibly deportation, of an American citizen involves the “total destruction of the individual’s status in organized society,” the punishment was deemed unconstitutional. In fact, despite the well-formulated nature of the four principles, it is much easier and more popular for both the courts and the public to define cruel and unusual punishment as any punishment that involves torture. The Court decided in Robinson v. California (370 U.S. 660 (1962)) that a law permitting a 90-day jail sentence for anyone found guilty of “be[ing] addicted to… narcotics” violated the Eighth Amendment. Since narcotic addiction is seen as “an illness,” the California law was deemed unconstitutional, because people were being punished on the basis of being ill rather than being punished for committing a crime. (Even though addiction to illegal substances involves committing a crime, it is important to consider and remember what the person is being punished for. This decision set the precedent (or at least should have) for the mandate that one needn’t commit a crime in order to be (unjustly) punished by the state, nor need one engage in illegal behavior in order to fall under the purview and protection of the Eighth Amendment in order to be shielded from an unfair cruel and unusual punishment implemented as a result of committing that “non-crime.” In this case, the Court wrote:
“To be sure, imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.”
Now, pregnancy is certainly not a disease, nor an illness, but it is a physical ailment… to say the least! But a law that legally mandates forced, unwanted pregnancy would not involve punishing women for being pregnant as much as it would punish them for having sex, and then getting pregnant as a result of that sex. So the possible application of the Court’s 1962 decision relies on, not whether pregnancy is disease, but whether or not “criminalizing” sex is morally equivalent to a criminalizing a disease in order to avoid having to invalidate the decision’s pertinence. Certainly, sex is not a disease, unless one is a sex-addict, and even then, the application of the Eighth Amendment to the repeal of abortion rights would only occur if and when sex-addicts became pregnant. Since this would most likely be a rare occurrence, what must be asked is whether or not we would be willing to “criminalize” sex…. or at least force a cruel and unusual punishment upon those who have it and become pregnant as a result. Forcing women who do not want to be pregnant to remain that way, will be shown to be “cruel and unusual,” throughout this essay, so it almost doesn’t matter whether or not sex actually is a crime. What matter is whether we treat it like one.
The perfect analogy that should serve as the “litmus test” to determine whether legally forcing women to remain pregnant against their will treats sex like a crime would be if, hypothetically, a law existed that forbade the medical treatment of rock climbing-related injuries. Now, rock climbing itself is neither an illness, nor a disease, nor a crime, but it would be cruel and unusually harsh to not allow rock climbing-related injuries to be treated. In the same way, sex is a lot like rock climbing. Despite appearances, in this instance, they have quite a bit in common. For example, no one has ever died from not rock climbing and no one has ever died from not having sex. Both activities are highly enjoyable. And both activities carry risk. You can be injured by having sex, and you can even die from having sex, and you can be injured from rock climbing, and die as a result of rock climbing. Sex can lead to pregnancy, which can be highly detrimental to one’s health. Rock climbing can lead to injuries that can also be highly detrimental to one’s health. So if we punished rock climbers who became injured by not treating the injury, under penalty of law, this is directly relatable to forcing women to endure an “unhealthy state of being” (the health risks of pregnancy will be further elucidated later) against their will simply because they had sex. Whether or not women become pregnant as a result of neglect or accident also relates to the rock climbing example. A rock climber can become injured because of neglect or accident as well. Certainly a law could stipulate that only rock climbers who are injured because of an accident, and not because of their own ineptitude, may be medically treated, however it would be highly unlikely and difficult to prove that the former occurred and not the latter. As will be demonstrated in more than a few paragraphs, the same applies to pregnancy. A pregnant woman would not be able to “prove” that she became pregnant as a result of her own neglect, or on accident, either.
Besides the possible, and logically valid, application of the 1962 case, the phrase “cruel and unusual” reeks of ambiguity and is subject to the advancement of technology, evolving social standards, and the ever-changing squeamishness of the public. More than any other amendment, the Eighth is affected by societal whims, opinions, and perceptions. Even if we simply clarify “cruel and unusual” as torture, what qualifies as torturous can be easily different for everyone. While the Eighth Amendment most definitely protects U.S. citizens from torture, most people believe that they have nothing to worry about, because torture almost always applies to prisoners in an interrogation scenario. It’s never used as a form of punishment, or is it?
The Eighth Amendment also refers to de facto punishments, in existence regardless of their ties to lawful authority and whether they are officially handed down as punishments or not. Because of this, the Eighth Amendment’s possible application to reproductive rights should be fairly clear by now. If a woman is forced to remain pregnant against her will, is it a violation of the ‘no cruel and unusual punishments’ clause?
In order to assert a firm and resounding answer of “yes” to this question, it is necessary to invalidate a few possible caveats. First of all, I am not claiming that consensual pregnancy is torture… although it certainly may feel that way sometimes, especially during labor. However, I do support the notion that forced, undesired pregnancy is torture. In other words, if Roe v. Wade is overturned, or even current abortion-restricting laws are not repealed, and women are therefore forced to remain pregnant against their will (or else seek out and endure an illegal, and most likely more dangerous, abortion), then the government’s anti-abortion, choice-limiting law(s) constitute cruel and unusual punishment (e.g., torture). But before I can expect you to take my word for it, first it must be proven that forced, unwanted pregnancy is torture. In order to do this, the term “torture” should be defined. In order for an act or state of being to qualify as torture, it must meet the following parameters…
1. Torture must be enacted, performed, or executed by a third party, whether it be one person, a group of people, a law, or a government, as opposed to self-imposed. (In other words, you can’t really torture yourself. Although I suppose it may be possible.)
2. Torture must be enforced without the torture victim’s permission (It must be against his or her will).
3. Torture must be detrimental to the victim’s, or sufferer’s, health.
4. Torture must be painful and/or fairly uncomfortable (to any degree as determined by the tortured, since people possess varying tolerances to pain) either mentally, physically, emotionally, or all three.
5. Torture cannot be instantaneous. It must last longer than an isolated moment, and it must be more than a single event. (For example, punching someone in the face one time does not count as torture. But beating someone to a bloody pulp (with the other qualifications met), does.
Now that the criteria for torture has been established (feel free to disagree or add to the list in the comments section), we must examine whether forced, unwanted pregnancy qualifies as torture. For number one, a law that is put into effect without the pregnant, abortion-seeking woman in question voting for it qualifies as execution by a third-party. If she didn’t vote for the law, then someone else did. And certainly, application of a law that forces women to remain pregnant or else break the law as the only alternative, qualifies as a woman being pregnant against her will if she wishes to terminate her pregnancy.
It is useless to try to argue that pregnancy, even consensual, planned pregnancy, is not detrimental to a woman’s health. Women are healthier not pregnant than they are when they are pregnant. A “D&E abortion” carries a mortality rate of about one in one million. While giving birth in the U.S. carries a mortality rate of approximately one in 4,800, according to the World Health organization, making choosing to have a “surgical” abortion over 200 times “safer” than choosing to give birth. According to a Save the Children report, the United States ‘boasts’ a maternal mortality rate (death of a pregnant woman not related to childbirth) of one in 2,100. This means that, should a woman make it through pregnancy, her risk of dying during childbirth is about twice as likely. But that really isn’t much to boast about, since the U.S. ranks at around 30th in the world in maternal mortality. Besides death, a woman must contend with a plethora of unhealthy symptoms during her pregnancy. Pregnancy can cause rampant urinary tract infections, kidney infections, nausea, vomiting, swelling, migraines, nutrition deficiencies, colds, Pre-eclampsia, cartilage damage, high blood pressure, heart problems, hemorrhoids, anal fissures, arthritis, gestational diabetes, water retention, and back problems… to name a few. While it’s possible a few women may manage to get through pregnancy symptom free, with little to no health implications, claiming pregnancy is not detrimental to a woman’s health is just plain stupid.
Even though the physical problems that are common during pregnancy are nothing to be dismissive about, the mental toll a forced, unwanted pregnancy would no doubt take are potentially devastating. Not only do many women experience intense mood swings during the nine-month ordeal, not to mention postpartum depression or even postpartum psychosis, but forcing a woman to remain pregnant against her will, under the threat of legal reprisal if she fails to comply, would inevitably and severely damage her self-esteem, sense of self-worth, and perception of personhood.
Remember, before 1973, women were so desperate not to be pregnant that they often risked death in order to terminate the fetus. And in too many cases, they did in fact die. They hemorrhaged to death on their own kitchen, bathroom, and living room floors. They died of infection as a result of improperly sterilized equipment due to having abortions in seedy, makeshift “clinics.” Or they died of complications while they drove home after crossing the border for their procedure. Besides certain technological advancements, what makes lawmakers think the desperation leading to death would be any different now? I imagine that having a living entity inside of you that you don’t want there, and enduring hormonal changes and increasingly uncomfortable symptoms against your will, while you watch your body transform into something in unrecognizable from your former self, plays out a lot like the movie Alien, starring Sigorney Weaver. The reason that movie was so gruesome and psychologically disturbing is because there is something nightmarish and horrifying about bodily invasion, and about harboring a parasitic entity against your will. (Yes, I realize the term “parasite” to describe a fetus is controversial, but the definition, “a living being that relies on a host organism for survival and nutrition while not benefiting the host,” fits.)
Besides the deep, unyielding desire to extricate an unwanted entity from her body, a pregnant woman forced to remain so will likely feel like she is inconsequential, that her opinion and desires don’t matter or count for anything, and that she is not as important as the rudimentary life form inside her. These thoughts will effect her self-esteem and mental health akin to the suffering of slaves, prisoners, and spousal abuse victims. She will feel like a second class citizen, or worse, like an object. Since her wishes won’t matter, and since her life will be treated as expendable as compared to her fetus, she will likely feel objectified and like she is the equivalent of a biological oven. And why shouldn’t she?
If the U.S. continues chipping away at autonomous freedom of reproduction, unconsenting pregnant women who don’t meet the qualifications for abortion will feel like livestock, suitable only for breeding. They will feel like they are being punished for having sex. If you recall, Justice Brennan wrote that a punishment is cruel and unusual if it is applied in an arbitrary fashion. Since men would not be subject to the same egregious punishment as the women they impregnate, or any punishment at all for that matter, if abortion is banned, women will inevitably feel as if they are being singled out and forced to suffer for committing the same action as their unwanted and unwelcomed fetus’ father, while he “gets off Scott-free.” This will mean a high likelihood of female marginalization. While men’s freedoms, rights and autonomy will be preserved, women will feel like they are unequal members of society- ignored and acceptably sacrificial.
The last “torture parameter” is obviously applicable. Since pregnancy lasts nine months, and labor can take a dozen hours or more, the physical, mental, and emotional pain from having to endure legally-mandated, undesired pregnancy easily qualifies as “not instantaneous.” While conception itself may only take a moment, the mental toll and emotional torture endured by women who are legally prohibited to seek pregnancy termination will seemingly last an eternity.
Whether forced, unwanted pregnancy would meet Justice Brennan’s litmus test for cruel and unusual punishment is another matter. If the punishment, by its severity, is “degrading to human dignity,” especially if it’s torturous, then the punishment is cruel and unusual, as established by Brennan’s first necessary element. Given the fact that an anti-abortion amendment, federal ban, or in-state law that causes women to remain pregnant against their will is likely to cause marginalization, objectification, feelings of neglect, irrelevance, expendability, discomfort, bodily invasion, and unwanted health risks, I think it’s more than safe to say that mandating pregnancy, regardless of desire to continue to remain so, is degrading to human dignity and torturous.
The second characteristic shared by Eighth Amendment violations include “severe punishments [that are] obviously inflicted in a wholly arbitrary fashion.” Unfortunately this qualification is ambiguous due to words like “obvious” (Obvious to whom? Everyone? Most people? The very intelligent? Ethicists? Lawmakers?) and “arbitrary.” The word “arbitrary” in this case refers to rules, decisions, or laws that are based on individual preference or possibly impulse. Even clarified, this doesn’t really help make sense of the stipulation. While it’s understood that judges are supposed to be unbiased and objective, lawmakers, lobbyists, and Congressmen make and attempt to pass laws based on individual preferences all the time. Proving that an anti-abortion amendment or abortion-restricting law was not formulated and implemented based on preference but by logical and deductive reasoning would be impossible. After all, the reasons people are against abortion are vast and multiple, and therefore the foundation for and reasons why the law exists could be as mysterious as it would be diverse. Off the top of my head, an anti-abortion law may be based on…
1. The belief that fetuses feel pain early in pregnancy
2. The belief that abortions are dangerous
3. The belief that an embryo possesses a soul from the moment of conception
4. The belief that a fetus is a person with the right to live
5. The belief that women shouldn’t have sex unless they want to get pregnant
6. The belief that abortion is a sin
7. The belief that access to abortion promotes teen sex
Yes, all of these are beliefs. None of them have been proven, nor will they ever be, because some are contrary to empirical evidence and some are simply unprovable in that no test to validate them exists. Since a belief is an unproven thought or assertion that a certain proposition is true, it’s not exactly a stretch to assume that any assertion or action based on a belief is both a matter of preference as well as the reason for preference. For example, if I paint the walls of a nursery teal because I believe the color teal promotes well-being, happiness, and tranquility, the act of painting the room is based on an unproven belief, and because of this belief, I prefer the room to be teal. (For the record, a panel of psychologists asserting that many people find teal to be soothing is not empirical or rational proof.) A belief that is contrary to proof is known as a falsehood. Falsehoods are defined as “a declaration truth, even though the declaration has been proven as untrue.” This is also referred to as a lie, but only if the speaker is aware that his or her affirmation is untrue. An unspoken belief in which the believer is unaware that the belief is contrary to evidence or proof is a misconception.
A preference exists as a result of a belief, and beliefs are often the catalysts of action. To simplify the concept, a racist who believes black people carry disease may prefer not to interact with them. The belief causes the preference which causes the action. (B-> P-> A) Likewise, a particular lawmaker may believe abortions are dangerous, fetuses feel pain, or God loves babies, and these beliefs cause him to prefer abortion to be illegal as opposed to legal. Because of this preference, he votes to ban abortion or writes a law restricting it to the most extreme of cases. Thus, any anti-abortion law that excludes pregnant women from being relieved of their undesired state of being, would be based on individual preference, and therefore enacted arbitrarily.
But “arbitrary” may also mean, “applied to one, but not the other, even though both qualify for application.” An example of this would be if a white man and a black man rob a bank together, share perfectly equal roles in the robbery, are arrested, and brought to trial, but only the black man is punished, while the white man goes free. This means that the punishment, in this case, was arbitrarily imposed. Once again, the application of this definition fits the hypothetical case of a forced, unwanted pregnancy situation. Since women would be punished, by being forced to remain pregnant against their will, for committing the same act (namely, sex) as the men who impregnate them, unless men are punished with equal severity, then legally banning abortion will be arbitrary in application. I’m not even sure what an equivalent punishment for men would entail- perhaps being forced to ingest a drug that mimics the symptoms of pregnancy for nine months? Then, at the end of the ninth month, the impregnators of the women who were forced by law to remain pregnant would be allowed to take the antidote to their drug-induced “condition,” the side-effects of which would include twelve hours of mind-numbing abdominal cramping. Yes, I am aware of the ridiculousness of this idea… but then again, I find the idea of possibly reverting back to pre-1973 mentality, as well as the semi-secretive, underhanded, lie-fueled initiative to chip away at Roe v. Wade, ridiculous as well.
“A severe punishment that is clearly and totally rejected throughout society” may also be a direct violation of the Eighth Amendment, so says Justice Brennan. Again, we may be stymied by equivocal wording. What is severe to one person may not be severe to another. I suspect Paris Hilton would find the living conditions of a two-star hotel to be severe, but to a homeless person, it’s bliss. My daughter believes that eating broccoli is a severe punishment. But perhaps “severe punishment,” if it is to be objectively defined, refers simply to torture, and a fitting definition of torture resides above. The third qualifying agent’s latter component concerning a punishment that is “clearly and totally rejected throughout society,” does not seem to have real-life application. No offense to Justice Brennan, but getting an entire society to clearly and wholly agree that a certain punishment is wrong may only happen in the rarest, most esoteric, and perhaps exclusively hypothetical, cases. The only way an entire society would cry out in unison that a given punishment is too severe would be if the “crime” was very minor, or an unenforced and ubiquitous act that’s only technically a crime, or a illegal but not immoral (and perhaps beloved) “crime.” For example, a society might totally reject the punishment of castration for the crime of driving two miles over the speed limit. Society might protest in disgust if a man was sentenced to life in prison for committing adultery, a common act that is technically illegal in many states, but it isn’t enforced. Or perhaps all citizens would unite in outrage over the capture and sentenced execution of Robin Hood or Batman. Other than these “never-gonna-happen” cases, when is society going to unanimously reject a given punishment because it’s too “severe?” For proof of this, check out spr.org, an organization dedicated to stopping rape in (both men’s and women’s) American prisons. Their website is littered with heartbreaking stories about stone-cold judges who sentenced fifteen-year-olds to adult max prisons for the minor crimes of accidentally setting a dumpster on fire or possessing a joint. These young men become brutally raped sex slaves and infected with HIV while confined in maximum security prisons. Their outcries for help are ignored, and what’s worse is that the sentence-passing judges are well aware of what’s in store for these children… but they are running for re-election and so have to support the “war on drugs.” (Yes, I’m being purposely snippy here.) My point is that even in these cases, in which far too severe a punishment is imposed for what’s virtually the “crime” of carelessness, the public fails to oppose the sentence in any way that even resembles clear, wholly unified rejection. Because of this, I doubt criterion number three is helpful in determining the presence of cruel and unusual punishment in any case, let alone in the case of a possible mandatory pregnancy law.
I think Justice Brennan’s fourth component for possible Eighth Amendment violations is particularly applicable to the enactment of a general anti-abortion law, because as Brennan states, “a severe punishment is patently unnecessary,” if suitable alternatives exist or the “punishment does not fit the crime.” Truly, alternatives exist beyond the scope of forced, undesired pregnancy. The alternative is a woman can terminate the pregnancy… quite safely and quickly. However, this alternative is hardly seen as suitable to over half of polled Americans. The severe punishment of forced pregnancy is definitely unnecessary in the practical sense, given the ease of obtaining abortions before the iron fist of Congress descended and imposed so many restrictions on it based on lies and misconceptions and, more than likely, to implement an alternative, anti-feminism agenda. But many Americans believe abortion is unnecessary because “women can simply remain pregnant,” as if it’s that easy! If pregnancy lasted five painless, consequence-free minutes, the abortion debate would likely be non-existent, and instead we’d spend our time wondering what to do with all of the overcrowded orphanages. But pregnancy is difficult… although we do not acknowledge this fact like we should, because that would lead to our country having to do two things it’s not ready for- giving women credit for being the tough, brave, sacrificing, selfless individuals they often are, and admitting that forced, unwanted pregnancy qualifies as torture.
The fourth parameter also takes into account that “if a less severe punishment exists,” and it is “as effective” as an imposed, more severe reprisal, then the less severe punishment ought to be utilized. The more severe punishment in this case would be legally mandatory, forced, undesired pregnancy, but a less severe punishment that is as effective in pregnancy prevention, as well as the promotion of contraception, is abortion itself. Although we have a tendency not to view it this way, abortion itself is punishment for the “crime” of having sex. (The definition of “punishment” is discussed three paragraphs below this one.) I mean, it isn’t as if women have abortions for fun. And women do not become pregnant on purpose just so they can enjoy the pleasant nature of abortion. Abortions are the opposite of pleasant. They are painful, tedious, arduous, strenuous, really expensive, and emotionally draining. Women are frequently forced to brave through protesters’ picket lines in which they are verbally abused and even sometimes physically accosted. Women often have to endure the uncomfortable experience of a guilt-ridden, propaganda-storm inside a CPC before they realize that they are not, in fact, in an actual abortion clinic, despite what it says to the contrary on the CPC’s door. Then they have to take time off of work and endure discomfort after the termination procedure. And in most cases, they tell themselves that, although they believe they made the right decision, “they never want to go through that again.” The bottom line is that abortions themselves are effective enough pregnancy deterrents, and they often effect women’s sexual endeavors as well. They can make women “more careful” when it comes to birth control and responsibility. And they often behaviorally condition women to discriminate against “casual” sex, because the experience of unwanted (accidental) pregnancy requires relationship stability for support and understanding. Women actually end up preventing subsequent, unwanted, future pregnancies from occurring. If the objective is to prevent future accidental pregnancy and encourage committed, safe sex, then abortions work. They “do the trick.” And that, if anything, qualifies as “effective” punishment.
But does the punishment of forced, unwanted pregnancy “fit the crime” of having sex? It’s odd, but often my students view the abortion debate from the perspective of, “Abortion should not be “used as birth control” and/or “Abortions are immoral if the woman seeking one had irresponsible sex.” In other words, they tend to see little wrong with utilizing abortions for accidental pregnancy in which contraception failed after being used correctly. They believe that forced, unwanted pregnancy may only be a suitable punishment if the woman became pregnant due to irresponsible, reckless behavior. (As in, knowing she should use a condom, but not caring enough to do so, thinking “There are other ways to deal with pregnancy.”) Besides the practical implications of denying abortions to those who became “recklessly pregnant,” due to a complete inability to prove how conception occurred, I find it curious that for some people, a fetus loses the right to live if it’s mother attempted to prevent its existence, as if her intentions should weigh in on her right to autonomous freedom. A pregnant woman who made no attempt to avoid conception however, harbors a fetus with more of a right to exist? (I would think the opposite makes more sense. Shouldn’t we be wary of irresponsible people bringing children into the world and encourage responsible mothers to have children?) Intentions should have very little to do with rights. I have right to speak freely regardless of whether I intend to offend people. (This is a right I utilize every day!) I have a right to an education regardless of what I intend to do with it. And I have a right to not be murdered even if I intend to commit suicide. (I mean, it’s not if we forgive killers for shooting suicidal people.) Likewise, I have a right to terminate pregnancy even if I intended to get pregnant and did so on purpose, let alone did nothing to stop it from occurring. In other words, I have the right to change my mind (even more so if my circumstances change).
Imagine a world in which intentions and our level of responsibility dictated our rights. Going back a sentence or two to the suicide example, the application of the afore-mentioned thinking would apply to a man who intends to kill himself, but is so irresponsible and malicious that he anonymously rents a hang-glider, flies out over the ocean, and jumps in, so that all of his loved ones will believe he is missing, never knowing the truth of his death, and left wondering forever. If he fails in the execution of his plan, should he lose an essential right based on his irresponsibility and specific intentions? What right should he lose? In keeping with the morality employed by some of my students, this man should be forced to follow through with his original intentions, and also punished for his irresponsibility, by being forced to carry out his previous suicidal plan- even if he has changed his mind and wants to live. So for all of you who think the punishment for irresponsible sex should be forced, unwanted pregnancy, let it go. It just doesn’t hold water. Although punishing a suicidal man with death hardly allows for him to “see the error of his ways.” But is that the point of forced, unwanted pregnancy? And is an anti-abortion law punishment, for that matter? (Answers regarding these questions in a moment.)
For those who are uncomfortable with simplifying cruel and unusual punishment as torture, I suppose it must be considered whether forced, unwanted pregnancy meets the standards of the original textual phrasing. While I am fairly confident that forced, unwanted, legally-mandated pregnancy is cruel, pregnancy itself is not unusual. But forcing a woman to remain pregnant against her will may be. It is, after all, an odd punishment for the “crime” of sex. Sure, prior to 1973, many women had to follow through with pregnancies they would not have otherwise if given the choice. But given that abortion has been legal for the passed forty years, the concept of this form of punishment is currently unusual (rare) in the same way that utilizing a horse and buggy for transportation used to be the norm, but is certainly unusual now. So I suppose the next question should be, “Is legally forcing a woman to remain pregnant against her will a form of punishment?”
Punishment means different things to different people. What matters is whether or not the action is enjoyable, detestable, bearable, or worth the effort. While even planned, intentional pregnancies are usually not enjoyable, the mother is willing to make sacrifices and endure extreme discomfort in order to receive the “payout” at the end. Just like a runner training for a marathon, pregnancy is hard work, but if you want a child, it’s often a necessary evil. Likewise if you want to win the Boston Marathon, you are willing to suffer while training for it. The runner does not look at training as punishment because he or she seeks to benefit from all the hard work. However, if I deplore running, and someone forces me to train for a marathon I have no desire to run in nor win, I will wonder what I did wrong to deserve such a punishment. Equivalently, legally requiring a woman to bring her fetus to term, under the threat of further punishment if she does not comply (perhaps akin to my marathon kidnapper and “trainer” threatening to shoot me if I don’t train), feels like punishment to that woman, since she doesn’t want to be pregnant or a mother.
Punishment is an action or deprivation one is forced to do to compensate for a wrongdoing (like imprisonment or paying a fine in order to compensate for committing a crime). If you recall though, the Eighth Amendment need not apply only to punishments implemented for committing crimes. Punishment must be imposed at the behest of someone else and it must be undesirable, otherwise it’s not punishment. If you impose it upon yourself it’s an act of contrition, not punishment. The person being punished need not agree that what they did was wrong. If a punished action is objectively wrong then the punishment is just. But if it’s not clear that the punished action is wrong, or if a person is being punished in the absence of doing wrong, then the resulting repercussions qualify as persecution, not punishment.
Punishment can exist for rehabilitative purposes and lesson-learning reasons as well. But rehabilitation strictly implies an authority/subordinate relationship, like parent/child, teacher/student, commanding officer/soldier, or warden/prisoner. But when a law causes, or is the reason for, the punishment, for example, if a law forbids African-Americans from utilizing public drinking fountains or sitting toward the front of a bus, what kind of authority/subordinate relationship is in place? While I know many conservative groups, especially those that oppose sex before marriage, would be the first to support the idea that forced pregnancy will “rehabilitate” the sinner and teach the lesson that sex is bad, it seems in this case that the “lesson learned” exists, at best, in a condescending construction. First off, torture is never an appropriate way to learn anything. Second, since teaching lessons through punishment necessarily entails an authority/subordinate or teacher/student type of dichotomy, those who would implement pregnancy as punishment to “rehabilitate” perceived “bad” sexual habits would first have to establish and prove the existence and difference between “good” and “bad” sex. And good luck with that.
Sex is just sex. It’s an action sans morality, like driving. However, while driving itself is amoral, driving while drunk is immoral. Comparatively, sex itself is amoral, but rape is immoral. I believe it was Vincent Punzo (although I could be wrong because I’m too lazy to look it up) who compared sex to a gun. He reasoned that, although many people say “guns are bad,” a gun is just an object without a moral attribute. But what you do with the gun can have grave moral consequences. Shooting a target is not immoral, but shooting a person in cold blood is. Similarly, sex is not an object, but an action, like playing tennis is an action. But playing tennis in which the stakes of losing the game mean forking over your life savings makes that particular tennis match morally questionable. Sex is an action too, but purposefully withholding the fact that you have HIV from the person you are sleeping with, and transmitting the virus to, is immoral (and illegal). (At this point you may be confused as to whether sex is like driving, a gun, or tennis, but just go with me here. Rather than wondering if sex is like a mobile death-match (get it?), try to see the relevance of the comparisons instead.)
So the question doesn’t really concern the moral nature of sex itself but rather the moral nature of the relationship with one’s sexual partner. And since even many married women would be subject to feeling punished for the “crime” of sex (after all, just because you’re married doesn’t mean you want to be pregnant), then even those who conservatives believe are having moral (read: committed relationship) sex wouldn’t escape persecution. So what, then, would be the point of rehabilitation if one could still be subject to punishment and torture for having morally “good” or ethically acceptable sex? (After all, why would women feel the need to rehabilitate, or comply with the rules of having “moral” sex, if there is no reward for doing so? If having “good” sex brings no reward of autonomy and still carries the threat of punishment, then there is no motivation or need to change one’s ways.)
Pro-life enthusiasts would no doubt maintain that punishing women who do not wish to be pregnant for having sex, when most sexually active women are aware that pregnancy is a possible result of sex, is perfectly appropriate. But if this is true then we can extrapolate the maxim that one must be willing to endure even tortuous punishment for an action one knew could lead to the undesired punishment. This is akin to the adage, “You dug your own grave, now lie in it.” I wonder, however, if these same enthusiasts would contend that since I am aware of the existence and statistical probability of traffic collisions, that if I choose to get behind the wheel, I ought to endure any pain, bodily damage, or financial ruin resulting from an accident. Since I knew about the chances of car accidents, am I forbidden from taking pain medication to cope with my broken bones or consenting to life-saving surgery? Exactly what does “taking responsibility for one’s actions” entail? Enduring the possible resulting burdens? Consider the following comparison. Suppose the government passes a law that allows chemotherapy, radiation treatment, and tumor excisions only for citizens who contract lung cancer from non-smoking-related means. In other words, imagine a law existed that forbade smokers from seeking cancer treatment and cured people only if they didn’t get lung cancer as a result of smoking. Would this law qualify as a violation of the Eighth Amendment? Would it force smoking lung cancer patients to endure cruel and unusual punishment? If your answer is “yes,” then logically speaking, there is no difference between this scenario and the one in which unwillingly pregnant women are denied abortions for legal reasons.
However, you might contend that fetuses are persons with the right to live from the moment of conception onward, and if a pregnant woman must endure a little cruel and unusual punishment in order to avoid being a murderer, then so be it. Well, unfortunately that argument hangs (by a thread) on the notion that embryos and pre-viable fetuses are persons, a claim that this article is not about to go into or disprove. The sole purpose of this essay is to demonstrate the perfect suitability of the Eighth Amendment to Roe v. Wade and the overall preservation of abortion rights. But if you would like to read about the possibility (or rather, impossibility) of fetal personhood, you can pretty much click on the homepage link, close your eyes, and point to any article on this site, and you’ll probably find something on that. After all, when it comes to reproductive ethics, freedom of autonomous choice is the only logical position one can maintain without having to sacrifice reason, honesty, empirical proof, or sanity.