The Volokh Conspiracy
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Kamala Harris's Unduly Narrow View of Bodily Autonomy
She rightly backs "my body, my choice" on abortion, but goes against it on many other issues.
Vice President Kamala Harris, President Biden's likely replacement on the Democratic ticket, is known for her advocacy of abortion rights. I think she's largely right on that issue. But she—and many others—overlook the reality that bodily autonomy rationales for abortion rights also justify abolishing a wide range of other restrictions on people's rights to control their bodies. If you really believe in the principle of "My Body, My Choice," the implications go far beyond this one issue. Washington Post columnist Monica Hesse recently highlighted an episode from Harris's career that illustrates the problem:
Listen, nearly everything you need to know about the presidential candidacy of Kamala Harris can be summed up by 19 words she uttered at the 2018 confirmation hearings of Supreme Court Justice Brett M. Kavanaugh.
Harris, then a senator from California serving on the Judicial Committee, had used up several minutes trying to pin down Kavanaugh's opinion on Roe v. Wade. Like nearly every senator on the topic, she was mostly unsuccessful….
"Can you think of any laws," she asked the nominee, "that give the government the power to make decisions about the male body?"
"Um," Kavanaugh replied, furrowing his brow. "I am happy to answer a more specific question, but — "
"Male versus female," Harris offered, smiling, and when Kavanaugh still expressed confusion, she repeated her 19-word question: "Can you think of any laws that give the government the power to make decisions about the male body?"
Kavanaugh responded, "I am not thinking of any right now."
Kavanaugh got caught flat-footed here, thereby enabling Harris to score a rhetorical point. But it's not hard to think of a wide range of laws that "give the government the power to make decisions about the male body." Some of them impose constraints whose consequences are even more severe than those of abortion restrictions. I listed some of them here, noting the implications of "my body, my choice" for these policies:
1. Organ markets should be legalized. People should be free to sell kidneys, for example (subject, perhaps, to informed consent requirements). If someone wants to sell a kidney, the response to prohibitionists should be: "you can't tell her what to do with her goddamn body, ever." Your kidney is part of your body, and the decision to sell should be your choice. As an extra bonus, legalizing such sales would save many thousands of lives.
2. Laws against prostitution should be abolished. They most definitely restrict people's freedom to control their own bodies (both prostitutes and their customers). The prostitute's body belongs to her, and using it for prostitution is her choice. Prostitution bans also restrict the bodily autonomy of customers. Thus, we should reject laws that punish them, while letting the prostitutes themselves go free. The "johns" own their own bodies no less than the prostitutes do. The kind of consensual sex you engage in with your body should be your choice.
3. The War on Drugs should be abolished. All of it. Not just the ban on marijuana. Its whole purpose is to restrict what sorts of substances you can put in your body. What you put in your body should be your choice. And, like the ban on organ sales, the War on Drugs harms large numbers of people, both in the US and abroad, in countries like the Phillippines and Mexico.
4. The government should not try to control people's diets through "sin taxes," or restrictions on the size of sodas, and other such regulations. Here too, the goal is to restrict what we put in our bodies. If that leads to increased government spending on health care, the right solution is to restrict the subsidies, not bodily autonomy.
5. Draft registration, mandatory jury service, and all other forms of mandatory service should be abolished (if already in force) or taken off the political agenda (if merely proposed). All such policies literally expropriate people's bodies. What work you do with your body should be your choice.
6. We should legalize and use challenge trials for testing new vaccines against deadly diseases. The resulting earlier authorization of Covid-19 vaccines might have saved many thousands of lives. And it could save many more if we permit the use of challenge trials in the future….
8. People should be allowed to take experimental medical treatments not approved by government regulators. That's especially true if the treatments have a significant chance of saving people from death or serious illness.
With the notable exception of mandatory draft registration (which remains limited to males), these policies all constrain women, as well as men. But they are still severe restraints on bodily autonomy, including that of men. Some of them—especially the bans on organ markets and medical treatments approved by the FDA—literally kill large numbers of people.
Moreover, most of these other issues pose easier cases than abortion, where pro-lifers at least have a plausible argument that restrictions are needed to preserve the lives of innocents who did not consent to the procedure. I largely agree with the pro-choice side of the issue; but the moral status of the fetus makes abortion a comparatively difficult question. By contrast, most other restrictions on bodily autonomy—including the War on Drugs and bans on organ markets—are paternalistic in nature. They invade the bodily autonomy of consenting adults, supposedly for their own good.
Elsewhere, I have explained why efforts to distinguish these other cases are either wrong, would justify abortion bans, as well, or some combination of both. For example, the argument that bodily autonomy can be restricted when payment is involved, or when people enter into transactions in part because of poverty, can also be used to justify a wide range of abortion restrictions.
Yet, with rare exceptions, such as her commendable advocacy of marijuana legalization, Harris supports most of these other policies restricting bodily autonomy. It doesn't seem to bother her that they "give the government the power to make decisions about the…. body." In that respect, she is hardly unusual. Most other mainstream politicians take similar stances.
I am not politically naive. The obvious reason Harris and many other political leaders take contradictory stances on bodily autonomy is that abortion rights enjoy broad popularity, while most other bodily autonomy issues are either less salient, less popular, or some combination of both. Being pro-choice on abortion may well help Harris win over crucial swing-voters. Being pro-choice on organ markets or drugs other than marijuana probably won't. It could well hurt.
Right-wing politicians are also often inconsistent on bodily autonomy issues. They too prioritize political expediency.
I don't expect Harris and most other politicians to adopt a more consistent stance anytime soon. But I hope that calling attention to these contradictions might lead more people to give thought to the broader implications of arguments for bodily autonomy. The government should indeed get out of the business of exercising control over people's bodies. On that, Kamala Harris is more right than she herself is willing to admit.
