Fair Questions: Is Sex a Right?

I was recently engaging in discussion on Matt Walsh’s post in which the topic of contraception coverage was discussed.  Walsh was making the argument that folks should be responsible for their own sexual choices, but of course not everyone agreed.  I do agree, and I pointed out that (as a poor college student working on my second degree) I am living this idea by choosing to not have sex when I can’t afford the consequences of sexual activity.  This requires real work against temptation when it’s incredibly easy to have sex on a college campus these days if you’re reasonably fit, friendly, and a few years older than average but still young enough to be in their age bracket.

One respondent advised that I should not deny myself sex under these circumstances, pointing out that it is a great stress reducer.  This prompted me to consider an interesting question.  If it is true that I should be able to have sex even if I cannot afford to pay for the contraception, treatment of STDs, or pregnancy/child-rearing, then is sex a right? The typical moral intuition for many people these days is that a person should be able to have sex without paying directly for the attendant costs of sex in much the same way that they believe that a person should be able to get healthcare without paying directly for the attendant costs of healthcare (i.e. “people have a right to healthcare” or “people have a right to an attorney”). Should I be able to have sex while my fellow citizens pay the price for the consequences of my actions? 

The next obvious question is: what is a right?  Without getting into the distinction between positive liberty and negative liberty or the issues involved in choosing which ethical framework we should use, let’s examine what it would mean within the context of the U.S. legal system since that is the context for the discussion mentioned above.

There are three types of rights in this context: political, civil, and natural.  Sex is obviously not a political right.  Some people might be tempted to claim that sex is a civil right, but this would imply that one could take legal action against a party for denying you access to sex and have that issue settled in a civil court.  Most people would not accept the idea that a person could sue them for refusing to grant them sexual favors.

Natural rights are the last category we could search for a place to park a right to sex.  Within the existing legal framework of the U.S. there is no right to sex listed among existing natural rights (right to life, free speech, etc), so we have to ask if it makes sense to add sex to the list of natural rights.

To help us in this endeavor, let’s compare a right to sex to existing rights enumerated in the Constitution and see whether sex fits in among them.  If it does fit in, we can see where it would fit.  If not, we must consider comparisons to rights not enumerated in the Constitution.

  • Would a right to sex be like a right to life?  The way our right to life is protected by law is that the State will act to redress the wrong if we are deprived of life without due process.  So upon our murder, the State seeks to hold the person who deprived us of our life accountable for the harm they caused.  Would it make sense for the State to hold someone accountable for depriving us of sex and the harm caused by doing so?  Could a husband press criminal charges against his wife for not having sex with him?
  • Would a right to sex be like a right to free speech?  The way our right to free speech is protected by law is that the State seeks to ensure that we have no prior restraint on our speech.  Within the confines of how the Supreme Court has defined free speech, we can say whatever we like.  This does not mean that we do not have to deal with the consequences of our speech, of course.  Another party can still bring suit against us for libel or slander.  Our spouse can still divorce us for being verbally abusive to them.  If a right to sex is like a right to free speech, then we have to deal with the consequences ourselves, and the State has no obligation to ensure that we can get loudspeakers to make it so that our voice is heard.
  • Would a right to sex be like a right to healthcare?  There is not currently a right to healthcare in the U.S. Constitution, but on a practical level, there may be one to the limited extent that hospitals cannot refuse emergency treatment.  If sex is comparable to emergency healthcare, is there a type of institution which must provide us with sex in an emergency in which we haven’t been able to achieve release after several hours?

The only option here that makes any sense at all to me is that the right to sex is like the right to free speech, but that doesn’t get us to the point at which contraceptives, treatment for STDs, or pregnancy/abortion costs are paid for by taxes.  The courts have already rejected the idea that abortion costs should be paid for by the State, and it’s not easy to see why we would treat the other consequences of sexual activity any differently.

I could be missing something here, so feel free to point out any rights which are closely analogous to a proposed right to sex.  Alternatively, feel free to point out how we might guarantee people consequence-free sex without turning it into a right.  I can already think of some arguments along those lines, but I’ll address them individually.

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3 Responses to Fair Questions: Is Sex a Right?

  1. ampbreia says:

    Good questions. You’ve put a lot of thought into them and that tells me a few things about you: you are most likely assiduously careful, self-conscious, and thoughtful about everything you do. Maybe a bit obsessive. You have a law student sound to you. You are suffering a severe case of lackanookie but you have really strong will power, so I’m sure you’ll survive it somehow.

    I agree with you that the right to sex should be treated the same way as free speech: you have the right to the act and the responsibility for the consequences, I don’t think it should be legislated though. In some countries, like Iran, sex outside of marriage is an infraction punishable by death even if it’s the result of rape. More cases are processed against girls and women than boys and men because women can get pregnant, thereby showing “guilt” and also because their word is only half that of a man in court. That’s one hell of a reason to be executed in my opinion.

    On the other hand, the right to bear children really should be legislated because it’s very costly to society overall when the parent(s) are living in poverty or turn out to be otherwise unfit to give their children a decent shake at life and sanity. Over population is a drain on resources and ecology alike and birth control patches (or other forms of birth control) are cheap and easy.

    As to medical consequences; like free speech, you take your own chances and pay the piper when he stops by.

    Just my opinion. I’ve been let to know many times that it’s not a popular one. But it’s mine… all mine! Though I am willing to share now and then.

    • I’ll take that as a compliment. 🙂 I’m far from a law student, actually. My friends who are lawyers would probably think I was being too unspecific and nontechnical, but I didn’t want to get technical. It’s impossible for my most of my audience to read overly technical legal gobbledygook, and it’s difficult for me as well.

      I agree with you that we should not legislate consequences for sex (assuming it’s consensual). That is dangerous for some reasons you’ve already mentioned and some others I have in mind.

      I’m less inclined to think that we need to regulate child-bearing by government fiat. That has historically worked out very badly, and the imperative to combat overpopulation is probably too late anyway. The current demographic trend is for countries to stabilize either near replacement rates or below replacement rates. In the U.S. we would not be growing in population to any significant degree without immigration, and even that is somewhat reduced now by a recession here and improving opportunities elsewhere in the world.

      I enjoyed reading your opinion and I’m glad you chose to share it. 🙂

  2. dispennett says:

    I enjoyed your post, Sam. Having worked in a primary-care healthcare setting for over two years, I have been much exposed to the demand for contraception services. How the medical world deals with it is a little different from how the government deals with it. In the medical model, you basically weigh risks and costs for both intervention and non-intervention groups, and then you decide which way is going to give you the best outcomes. There are even medical diagnoses related to sexuality that we use all the time in patients’ charts. For example, “Contraceptive Management” and “Sexual Behavior, High Risk” are two of the most common.

    So getting into your risk assessment, you would weigh the risks and benefits of the birth control versus risks and benefits of not using birth control. Those who say birth control pills and injections are completely without risks are living in a fantasy land, because there are risks: Risks of lost of bone mineral density, risks of thromboembolitic events, etc. However, the risks of those events are weighed not against their non-occurrence, but against the medical risks associated with pregnancy, which are much greater. In our industrialized society, we lose sight of the fact that pregnancy does expose women to a lot of health risks, up to and including death. Although our medical technologies have mitigated these risks significantly, they are nowhere near zero.

    Thus, for a provider who is using this medical model wants to make sure that his/her patients have their medical risks managed as well as possible. Even providers who are very conservative in their sexual ethics know that, given genetically hard-wired human behavior patterns in combination with a social milieu that encourages free sexual expression, they are not likely to convince their young patients to accept continence as their calling. Thus, though they might have misgivings about doing so, they prescribe the birth control in order to lower the risk of pregnancy, especially for younger women and adolescents who do not yet have the means to provide for children who might come into existence as a result of their actions.

    That brings me to the next point of my theory, which could be wrong but makes sense of what I’ve seen transpire over the course of my own lifetime. I theorize that it is the increased use by providers of these methods of artificial birth control, coupled with an increased interest in socialized methods, and the self-interest of all insurance payors to keep down costs, which have helped to drive the whole “birth control as a right” phenomenon. Think about it first from the perspective of an insurance payor. Let’s pick an insurance company–say, Anthem. Whether they’re administering Medicaid for the state in a managed care role (as they do in Indiana), or whether they’re providing services directly to consumers, the best way that they have of maximizing profits is to reduce the number of claims payments. The insurance company does not share the joy of your family at a new arrival, especially when that new arrival means that you’ve hit your deductible and they have to start forking over the big bucks. Thus, insurance companies don’t mind at all when they have to dish out $100 a month for birth control, because they see the big picture, and they know that, in the long haul, it’s going to reduce their overall costs by limiting the number of pregnancies.

    As healthcare moves toward a more socialized model, the government, too, has a vested interest in providing contraception for people. States want insurance payors to compete for managed care contracts in their state, but they know that cost-controlling measures are the only way to do this. Cost controlling measures include a lot of things, such as prior authorization requirements, investments in preventive care, and coverage of birth control, but the bottom line–cynical as it may be–is that no government and no private company wants to just sit around and foot the bill for people having lots and lots of babies. So people get used to having easy–and often free–access to contraception, so–over time–they come to expect it as a right. And since there’s no easy way to change patterns of human sexual behavior without also challenging and transforming the societal paradigms that undergird that behavior, its much easier to simply deal with the behavioral patterns that are already in existence than it is to try to change them on the macro level.

    Your analysis of why the right to sex is not analogous to the right to healthcare is good, but because sexuality is so closely intertwined with health (because of pregnancy and STDs, mostly, but for other reasons as well), we have come to the point where access to contraception is increasingly perceived as a right, in the same sense that access to healthcare is increasingly perceived as a right. You approached the issue from the perspective of individual rights, which is one good way to look at it, but I think that most people who would argue for access to contraception as a right are starting out by looking at overall public health trends, and then are extrapolating that level down to the individual. For example, they might point out the economic disparities in access to contraception, that young women and adolescents from poorer families have much less access to contraception, and therefore have higher rates of STDs, teenage pregnancy, have more children who are born to and raised by single mothers, and who grow up trapped in a life of poverty. Therefore, meaning to help these young women, people will advocate for an individual right to contraception, in order to help combat these trends. Feminist theorists, too, would point out (rightly, I think, though I don’t agree with all their conclusions) that the consequences of unprotected sex hit women particularly hard, so they would portray access to affordable contraception as one of the most important women’s health issues of our time.

    All of this might make it sound like I agree that access to contraception is a right but, at the end of the day, I still don’t. I do understand, though, the reasons that people advocate for its being a right. I think that their hearts are in the right place. Most of them really hope to help other people by providing access to birth control. I have trouble with the medical model because, in this case, it fragments the human person, enshrining those attributes of our existence which are observable and measurable, and setting aside the spiritual and the transcendental–the higher demands of the moral law. I just think there’s a better way–not necessarily an easier way, but a better way to teach our children about what authentic sexuality is supposed to be. That way involves countering the prevailing social paradigm of copulo ergo sum, and showing them that the better way of life is not to be served, but to serve; not to take for oneself, but to give of oneself; not to make pleasure our meaning, but rather to find pleasure in centering our lives in the Truth. One of the biggest heresies (if I may call it that) of our time is that to express one’s sexuality is to live and that, unless you are fulfilling all of your sexual fantasies (caveat: as long as they are consensual, and with other adults), that you are stifled, stodgy, and not fully alive (2nd caveat: If you are asexual, you find your identity in not having sex, which is OK, too). Of course, this doesn’t explain the predicament of many people who are fully expressive of their sexuality and are still miserable.

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