♀ A Question of Property Rights


Suppose a man has intercourse with a young woman who is a virgin but is not engaged to be married. If they are discovered, he must pay her father fifty pieces of silver. Then he must marry the young woman because he violated her, and he may never divorce her as long as he lives.

This is a quotation of the Mosaic law from Deuteronomy 22:28–29. The practice outlined seems strange to 21st-century Westerners because it is based on an understanding of women as property that was common in the cultures of the day (and in some contemporary cultures). Women had value to their fathers only if they could bring in money from a potential husband; otherwise they were a financial drain because, unlike sons, they could not grow up to become wealthy of their own accord and support their parents in their old age. Since men wanted to marry virgins (in much the same way that everyone likes shiny new things, not tarnished used things), women who had had sexual intercourse were nearly worthless for this purpose, which is why this law was, for its day, compassionate: it prevented men from making a woman worthless on the marriage market by having sex with her but refusing to pay up, or leaving her destitute by divorcing her after a shotgun wedding.

This explains why the law does not bother to distinguish between a man who rapes an unengaged woman and one who has consensual sex with her: because the market did not distinguish. Men wanted intact vaginas, and women who have been raped don’t possess them. The preceding verses of Deuternomy make this clear:

Suppose a man meets a young woman, a virgin who is engaged to be married, and he has sexual intercourse with her. If this happens within a town, you must take both of them to the gates of that town and stone them to death. The woman is guilty because she did not scream for help. The man must die because he violated another man’s wife. In this way, you will purge this evil from among you. But if the man meets the engaged woman out in the country, and he rapes her, then only the man must die. Do nothing to the young woman; she has committed no crime worthy of death. She is as innocent as a murder victim. Since the man raped her out in the country, it must be assumed that she screamed, but there was no one to rescue her. (Deuteronomy 22:23–27)

In this case, another man has already paid for this woman, so the rapist is essentially committing a robbery for which he cannot make restitution. As with nearly every other sexual sin mentioned by Moses, the prescribed penalty is death.

The model of women as property persisted in our culture until much more recently than we would like to admit, and some of its symbolism yet lingers. Many still find it romantic for a man to ask a father’s permission to marry his daughter, and nearly every man in our culture gives his female fiancé an engagement ring—essentially a downpayment offered so she will withdraw herself from the market. Even some language that reinforces the concept is only just beginning to fade from popular use: older people still use expressions like “ruined woman” or “damaged goods” to refer to women who have engaged in sexual intercourse before marriage.

The first-wave feminists fought for women to be recognized as individuals separate from their fathers or husbands and their value as property. They wanted, and achieved, property rights (among others) for women in the eyes of the law, but the cultural shift and scientific advancements that would put women in charge of their own sexuality and fertility had not yet occurred. The concept of virginity as a valuable possession to be surrendered only to one’s husband remained prevalent, and the bearing and raising of valuable children who would assure a family’s long-term prosperity and status continued to be a woman’s primary function in society.

When, therefore, the feminists of the 1960s began to awaken and rouse others to action on behalf of the stifled and stunted women of their day, they naturally focused on sexual and domestic liberation. The battle for a woman’s control over her own fertility waged both wars simultaneously, promoting sexual activity free from the threat of pregnancy via two methods: easily obtainable contraception and legal abortion. Activists framed both issues in an idea that resonated strongly after centuries of patriarchal oppression: a woman’s right to her own body.

Of course, the United States eventually got legal abortion on the principle of a woman’s right to privacy—a concept distilled from the Fourteenth Amendment, which protects citizens from being deprived of life, liberty, or property without due process. Essentially, the Supreme Court decided that a woman’s body was her own property with which the State had no right to interfere.[1]

Decades later, and in the face of renewed and more-successful efforts to limit abortion rights, debate on the issue waxes ever more vehement and personal. Feminists understandably still regard the right to abortion as fundamentally based on the principle of liberty: that a woman should be free to choose what happens with and to her own body. Consequently, they perceive anti-abortion activism as a reassertion of patriarchy—an attempt on the part of a still male-dominated legislature to take back control of women’s bodies.

Giving credence to this belief, many of the principal voices for the anti-abortion movement do, in fact, sound remarkably like the voice of ancestral male privilege. Rape denialists try to rationalize away exceptions to proposed anti-abortion legislation with junk science. The same groups that oppose abortion also oppose readily-available contraception (another important feminist achievement), even though increased use of contraception has led to lower abortion rates. Opponents of abortion rights even tend to vote against unrelated issues women feel are important.

But as progressive an issue as legal abortion once was (and still may be), in this one respect feminists are behind the times: anti-abortion activists, with some notable exceptions, are no longer out to take back ownership of women and their bodies. They just want to factor another person into the equation.

Aside: If you’re a feminist, this is probably the point at which you might be tempted to bail. I’ve invoked the much-reviled “personhood” concept, so even if you continue reading to the end of this post, you’ll probably be so angry that nothing I say will make much of an impression.

I’ve been there—trust me—but I think if you take a moment to remind yourself what a reasonable, open-minded person you are, you’ll be able to keep reading without calling me names in your head. And hopefully you’ll be able to see my point, even if you still disagree.

Opponents of abortion rights usually employ the rationale of fetal personhood as the basis for their views. The argument goes something like this: “The fetus is a person, too, and therefore it has rights, including the most fundamental right, the right to be alive. So even though the pregnant woman has a right to privacy and control of her own body, those rights do not trump the right the fetus has to continue living.”

Validation for the concept of fetal personhood usually seems to come from one of two sources: common sense, and the Bible.

Now, this isn’t the time to delve into the Bible’s reliability as a science textbook or its divine authority. The passages usually referenced to validate fetal personhood are much of the same sort; you can read a few here, here, here, and here. Ignoring also the question of how literally to interpret what are for the most part verses of poetry, what actually matters is that the Bible is not a valid basis on which to make legislative decisions. The First Amendment won’t let us get away with that.

We’ll therefore exclude the Bible. That leaves us common sense. The common-sense argument for fetal personhood goes something like this:

“Of course unborn children are people! Otherwise how could they be born so many months early and still live and develop into fully-functioning humans just like those carried fully to term? They start out as zygotes, but they must turn into people at some point. We don’t know where that point is, but to be on the safe side so we don’t end up killing any people, we should just assume that point is as early as possible.”

The problem is, the argument against fetal personhood is also an argument from common sense. “Of course fetuses turn into people at some point, but we don’t know where that point is. To be on the safe side, so we don’t infringe on anyone’s right to privacy, we should assume it’s as late as possible. After all, we know for sure that the pregnant woman is a person. We’ll focus on making sure she has all her rights.”

That, in essence, is the true nature of the debate. Obscured as it often is by extremist views on rape, religiously-based sexual ethics, conflation of the issue with contraception, and political partisanship in its rawest form, the issue of abortion rights boils down to whether we should care more about protecting the right of a potential person to live or the rights of a definite person to control her own body and destiny.

Even with this as the starting point, the debate is so multi-faceted and emotionally-charged for both sides that discourse on the subject will probably be impassioned and true consensus impossible, but let us first understand each other. And as I wrote last week, we should try to assume the best of one another, even when we disagree.

  1. Within certain limits, namely the State’s interests in “protecting prenatal life and protecting women’s health”. I haven’t studied this particular aspect of the decision, and in any case its applicability lies outside the scope of this post. I realize this understanding of Roe v. Wade is somewhat reductive, but I don’t think it’s misleading.  ↩