The following is an extract from Her Choice, Her Problem: How Having a Choice Can Diminish Family Solidarity (abstract), an article by Richard Stith, Professor of Law at Valparaiso University, published in the International Journal of the Jurisprudence of the Family, volume 2, pp.179 - 213 (2011), and available through HeinOnline. 

* * * * *

It is possible for the law to grant autonomous power to the strong over the weak. If the law gives adults or healthy family members the right to choose between life and death for developing or ailing family members (for example, permission for infanticide or other non-voluntary, or even involuntary, euthanasia), that grant of power obviously may harm the object of choice.

But what about the harm that legal autonomy may bring to the official chooser herself?

The simplest case in which this can occur is that in which the legal chooser is not the de facto chooser, so that the law’s attempted empowerment of the nominal right holder has the unsought effect of really empowering someone else.

When someone is in subjection, any legal liberty for her will be exercised by the person who actually controls her life. While the conferral of a new legal right may appear on the surface to be a gift to her, in reality it will give him an additional option—and thus augment rather than diminish his power over her.

Examples abound: A laborer’s “right to work” (that is, to be employed without having to pay dues to a union) does not empower her but rather her employer, if the latter controls the terms of the contract. Similarly, although a “right to do sex work” may well liberate some educated adults, for vulnerable young girls and boys it empowers bad parents and pimps instead.

More familiar is the legal “right to abortion” (or a “right to assisted suicide” or a “right to voluntary euthanasia”). Wherever men make women’s sexual decisions for them, the option of abortion will be a man’s choice, regardless of how the law may label it. To the degree that a culture embodies male dominance, the legalization of elective abortion can make women relatively worse off by giving men another weapon to use to manipulate women. For example, insofar as an economy employs only men, leaving women dependent on economic handouts, women may be unlikely to resist pressures to make use of (or to refuse) abortion according to male preferences.

Even radical feminists have recognized this. One of its leading theorists, Catherine MacKinnon, wrote in 1987 “abortion facilitates women’s heterosexual availability. In other words, under conditions of gender inequality, sexual liberation … does not free women; it frees male sexual aggression. … The Playboy Foundation has supported abortion rights from day one … . [Roe’s] right to privacy looks like an injury got up as a gift. … Virtually every ounce of control that women won out of this legalization has gone directly into the hands of men … .”

Much of the resistance to the legalization of assisted suicide and voluntary euthanasia comes no doubt from the recognition of a similar coercive effect. Granting some sufferers an escape through death may at the same time cause others to die against their will.

This might happen in two ways: Insofar as the very old and the very ill are weak in body or mind, they may be pushed or tricked by family or other caregivers into choosing death, or perhaps merely into appearing in some casual remark to choose death, even though they really wish to live.

And a right to die also provides one more defense for actual murderers, for those who straightforwardly take the lives of victims known to be unwilling and then claim falsely to have assisted a suicide or to have provided requested euthanasia. (Adding any new justification for homicide creates new possibilities for deception, but this risk is especially great here, where the new justification is the consent of a peculiarly isolated victim.)

The tension between the liberating and the enslaving sides of the rights to abortion and to assisted suicide can, of course, be mitigated by empowering the potential victims either individually or collectively. If campus housing is provided for undergraduate parents and their children, a female student will be less easily pushed into abortion by a boyfriend. If workers are able to form a strong union despite a “right to work,” they may well resist many forms of exploitation.

Yet while domestic violence can certainly be curbed and women made stronger through education and good jobs, the greater physical strength of men, the dynamics of sex and sexual competition, and the limited possibilities of intimate collective action (that is, of some sort of women’s union setting down the rules for sex) may mean that women’s rights to abortion never become completely their own.

Even less likely must be the achievement of true, de facto autonomy for the medically dependent and disabled. While persons with disabilities have found some strength in unity, coming together (in groups such as “Not Dead Yet”) in order to call attention to the dangers inherent in any legal right to die, those speaking up must necessarily be those less imminently endangered. It is hard to see how the most helpless among us could ever be made strong enough to protect themselves in a world where they were given the option of death. Their nominal autonomy would sometimes both serve and mask their actual compelled extinction.

Few should disagree that policy planners ought to be careful in granting liberties to the oppressed (or to the potentially oppressed) wherever the causes of their vulnerability are not yet, and possibly cannot ever be, undone—for then the new autonomy will empower the oppressors.

Richard Stith is a Professor of Law at Valparaiso University, Indiana, USA. The above extract from his article is published with permission. Those wanting to read the full article can contact Professor Stith at [email protected]