Unwanted Pregnancy: Sex, Contraception, and the Limits of Consent

By DEBORAH TUERKHEIMER. Full Text.

Rape exceptions to abortion bans, widely popular among the American electorate, are cleaved from a rule that defines pregnancy as the byproduct of choice. According to the logic of this rule and its remarkably limited exception, a person who is not raped consents to sex and therefore to the pregnancy that results. An empirical analysis of women’s experiences with sex and contraception upends this logic, exposing the narrowness of abortion law, rape law, and law’s underlying conception of consent. In particular, the legal consent paradigm conceals a range of harm to marginalized women. My account of unwanted pregnancy contests this understanding along with its supremacy within and outside law. As an alternative to the consent paradigm, I describe a theory of reproductive agency that centers persistent structural constraints on women’s sexual and reproductive lives. By surfacing law’s deep entanglement in these background conditions, the theory bolsters a case for an affirmative state obligation to provide comprehensive sex education, contraceptive access, and abortion care.