Applying the principle of individual rights to concrete issues is not always easy or clear-cut. But it is doable and necessary, once one understands the fundamental nature of rights. Every human conflict, issue, or controversy – including today’s “hot-button” issues – is ultimately a matter of applying the principle of rights. This is true of the political turmoil surrounding the so-called social issues. In the case of gay marriage, which I have already addressed, the matter is simple and straightforward. The issue of abortion, however, is more complex (and emotional) - given the nature and facts about human procreation; the nexus of the actual with the developing human being. Abortion thus represents the greatest challenge for rights advocates.
Abortion is defined variously as follows:
1- the termination of a pregnancy after, accompanied by, resulting in, or closely followed by the death of the embryo or fetus.
2- the removal of an embryo or fetus from the uterus in order to end a pregnancy.
3- In medicine, an abortion is the premature exit of the products of conception (the fetus, fetal membranes, and placenta) from the uterus. It is the loss of a pregnancy and does not refer to why that pregnancy was lost.
4- expulsion from the uterus of the products of conception before the fetus is viable.
There are questions raised here. Where precisely does viability definitively fit in with the concept "abortion?" In common usage, #1 is the definition most people think of when they hear the term “abortion.” It is also the broadest definition. But does abortion necessarily have to be followed by the death of a fetus? In the pre-viable stage, the answer is obviously yes. What about the latter stages, when a fetus is viable (can live on its own, outside the womb)? This confusion need not be a distraction. Of necessity, as a matter of law and politics, the issue of abortion relates to the entire length of the pregnancy. However, for the sake of argument and simplicity here, I use #4 as my reference. Later, I'll broaden my focus to the post-viable stage, where the abortion issue diverges along parallel paths.
I’ll begin by properly framing the debate. The question is not, “when does life begin.” In a real sense, life precedes conception. The Catholic Church – for better or for worse the leading Christian voice – capitalizes on this. As the Church will tell you, both the sperm and the unfertilized egg represent a potential human life, and it is only God that may determine when they forge an actual embryo – which is why the Church all forms of “artificial” birth control except the allegedly God-sanctioned rhythm method. In other words, not just abortion but also birth control stops a human life. Framing the debate around when life begins can have dangerous consequences, as we shall see later. That aside, the fact that conception represents the beginning of a process that may lead to the development of a new human being is not relevant to the issue of abortion. Rather, the relevant and proper question surrounding the abortion issue is: When do rights begin? (In regard to this last point, I have long believed that the issue of abortion is a matter of rights. Ari Armstrong and Diana Hsieh make this crucial conceptual identification, thus clarifying the abortion issue immensely. See their position paper concerning the “Personhood Movement” and their article in the Winter 2011-2012 Objective Standard, which is available for free and to which I will return to later.)
Abortion rights opponents largely base their case on the idea that a fetus or unborn child has a “right to life” equal to that of other human beings, including the mother. But it is not merely a matter of the “right to life”. The right to life does not mean merely to exist – to be fed or protected from the elements; i.e., to exist merely as a mindless, soulless chunk of tissue and bones. On that premise, slavery is not a violation of the right to life, as long as the slave is minimally fed, housed, and clothed. The same would be true of political prisoners rotting in North Korean or Cuban dungeons, on the anti-abortion rights premise. But that - a mindless, soulless chunk of tissue and bones - is the premise upon which the grossly misnamed “pro life” movement bases its case. Notice that the individual that actually has a life – the pregnant woman – is given no consideration at all.
No, the right to life entails much more. In this regard, I want to focus on the precision of the Founding Fathers, who clearly articulate the point. Note that the Founders were generally relatively wealthy, productive achievers living under what was in their time the freest regime in world history – the English Crown. Yet, that was not enough. They still saw themselves as people whose right to life was being systematically violated by the Crown’s economic regulations and laws. For the colonists, to live meant to live free … free from coercive restrictions by other men, private or public. Thus, the key phrase in the Declaration of Independence ties together several crucial concepts:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.
There is no accident here. Clearly, the Founders intended this statement as an integrated whole. The right to life, which abortion opponents base their case upon, is a broad concept. The right to life depends upon liberty, which depends upon the principle of unalienability, all of which are vital to every individual’s ability to pursue his own happiness. In other words, each individual must be free to act for his own benefit in a way that does not infringe upon the rights of another. Since all men are created equal, all men (and, of course, women) possess the same rights, equally, at all times. There is only one concept of rights that fits with that Declaratory statement, the rights to freedom of action in a social context – i.e., freedom of speech, of religion and conscience, of voluntary trade and contract, of production and use of property, etc; in a word, liberty. Furthermore, there is only one fundamental purpose involved – the setting and pursuit of one’s own goals, values, and welfare; in other words, the pursuit of one’s own happiness. This formulation implies a logically undeniable corollary - the right to one's own body.
The principles involved in this integrated whole is the only rational - i.e., reality oriented - frame of reference in which to understand the abortion issue. Armstrong and Hsieh conclude that rights begin at birth. It is at birth that the human being becomes truly independent, and emerges into a social context – the only context under which rights are relevant or necessary. In their Objective Standard article, The Assault on Abortion Rights Undermines All Our Liberties, Armstrong and Hsieh write:
An embryo or fetus in the womb, in contrast, is not an individual. It is a wholly dependent being, contained within and supported by the body of the pregnant woman. The fetus does not act independently to sustain its life, not even on the basic biological level possible to a day-old infant. It does not breathe independently, eat independently, move independently, or even defecate independently. The fetus cannot know or interact with the world outside the womb in any meaningful way. It is not an individual member of society, but rather a part of the pregnant woman. None of this changes until the fetus departs from the woman’s body at birth and thereby becomes an individual human person.
Birth is a radical biological and existential change for the fetus, more significant than any other change over the whole course of life, except death. The newborn infant lives his own life, outside his mother. Although still very needy, he maintains his own biological functions. He breathes his own air, digests his own food, and moves on his own. He can leave his mother, either temporarily or permanently, to be cared for by someone else, and still live and prosper. His mind, although in its nascent stages of development, now enables him to grasp the world and guide his actions. The newborn infant is no longer a dependent being encased in and supported by the body of another; he is a person in his own right, living in a social context.
From birth, the child has a lot to learn, including such basic functions as how to focus his eyes. The learning process is self-generated and knowledge is self-attained, regardless of the fact that a lengthy period of rearing requiring extensive adult supervision and intervention is required – a requirement imposed by nature on all of the higher life forms. The parents have the first responsibility to do the rearing, but any adult may fulfill the task. During the long process of rearing, the child is engaged in a self-generated, progressive acquisition of the ability – the knowledge, mind training, life experience, skills etc. – to exercise the rights acquired at birth. His rights to a proper rearing are grounded in the parents’ decision to bring him into the world; a decision that encompasses the abortion choice.
But, say Armstrong and Hsieh, the child has no such rights between conception and birth. (Partial birth, or late-term, abortion needs special consideration, as we shall see in part 3. That is where the principle that “rights begin at birth” needs qualification. For now, though, we’ll stay on this line of thought.) First and foremost, the principle of equality and unalienability rests upon the principle that rights do not and logically can not conflict. The “right” of the fetus (or unborn or developing child, or whatever term one chooses to use) do not and can not negate or infringe upon the rights of the woman to decide whether or not to carry the pregnancy to term. The right to life entails the right to control, as far as is possible, the function of one’s own body, which is one’s own property, and no one else’s. The decision on whether to end or continue a pregnancy belongs to the woman, and only the woman. The issue is not about the morality of abortion. It is about who makes the moral choice about a being carried inside of an individual human being.
The principle of rights alongside its corollary – a limited rights-protecting government – recognizes only the individual’s right to make moral choices on his/her own behalf - including a woman’s reproductive choices, abortion included – so long as those choices do not involve the violation of the rights of others. The question is, in regard to the abortion choice: If it is not the pregnant woman’s choice, then whose is it? The woman’s sole right to make that choice on her own behalf is grounded in the very reasons why that fully integrated statement appears in the Declaration of Independence. (Of course, the doctor has a right to refuse to perform abortions. The woman’s right to choose is not a right to demand that any doctor is obligated to perform the procedure, or that other people have an obligation to pay for it.) Denying that woman’s abortion rights negates the entire principle of rights, and thus the American Revolution’s rejection of the individual’s dependence upon state permission for his freedom. The idea that a fetus’s “right to life” – the right to make decisions pertaining to the use of his own body – ends at birth is absurd on its face.
Quite simply and logically, support for a legal ban on abortion is utterly incompatible with the unalienable rights to life, liberty, and the pursuit of happiness. Rights, properly understood, can not and do not conflict. If the unborn have rights, then the mother does not. If the rights of the mother can be negated by the state in favor of the "rights" of the unborn, then any rights can be negated in favor of anyone else’s “rights”, with the state as the arbiter of whose rights take precedence. The principle is crystal clear: When rights cease to be unalienable, then rights cease to exist, and freedom disappears into the muck of statism.
The crucial point to understand here is that a right is a concept that applies to, and only to, actual living human beings, not potential human beings. This is not a callous statement, but recognition of the facts of reality. A right is an attribute that is possessed by every human equally, and that places no unchosen positive obligation on another. Further, a right is something that a person possesses throughout his life. The idea that a person has a right (the rights of the unborn) that is automatically lost at birth is a contradiction, both of logic and of the facts of reality. Whatever anyone's moral evaluation of the procedure, the overarching moral principle of unalienable individual rights is absolute. The rights of the mother reign supreme, and one who denies those rights cannot claim to be a defender of the “rights of the unborn.” The concept of “the rights of the unborn” implies an impossible conflict…that the rights of some supercede and negate the rights of others…an idea that in fact negates the very concept of inalienable rights.
The “pro-life” case is based on faulty logic, is contradictory, and is self-defeating. If the unborn have rights that supercede the rights of the mother to control her own body (her property), then her rights are not unalienable. If her rights are not unalienable, then the whole concept of rights is invalid, which means no one has rights, including the unborn.
Support for abortion rights does not mean approval of abortion. It means support for rights across the board, period. Those who champion the “rights” of the unborn, while disregarding the rights of women, can not be and are not champions of anyone’s rights.
This now leads me to so-called partial-birth abortion, to be addressed in my next and last post in this series. Remember that, properly understood, abortion means “the removal of an embryo or fetus from the uterus in order to end a pregnancy.” What about the period between the time a fetus becomes viable - which varies according to such things as race or gender, but usually occurs around the end of the second trimester - and birth? This is where the principle that “rights begin at birth” must be more deeply examined.
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