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.