(This is the first of three posts in a series on this topic)
“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”
The Universal Declaration of Human Rights
Practically everyone has heard the phrase, ‘My body, my choice.’ This is a catch-phrase for the bodily rights argument for abortion. But what does that actually mean? And how can pro-life activists have any foundation for telling women what they can and cannot do with their own bodies?
There are two common versions of the bodily rights argument. There is the ‘Right to Refuse’ argument, and the ‘Sovereign Zone’ argument. But first, I’d like to talk more generally about human rights, and the conflict that we see arising when we consider the abortion debate. It will be the focus of this post, whereas the Right to Refuse and the Sovereign Zone arguments will be addressed in subsequent posts.
In order to recognise that there exists a conflict of rights, we first have to recognise that the unborn child is an entity worthy of having such rights. In favour of this, please consider the following points:
- (Thank you to Josh Brahm for introducing me to the following argument) I imagine that most people arguing from a bodily autonomy standpoint would agree that all of us, or least those already born, are entitled to human rights. Furthermore, that we are each entitled to these rights in equal measure. It follows, therefore, that whatever quality we have that supports this entitlement is something that we must each have in an equal measure. This means that it cannot be a capacity-based quality, since we all have differing levels of capabilities. Thus, to bestow human rights equally, without subjective judgement, there must be an intrinsic quality that qualifies us to receive them. What is it that we all posses equally without regard to what we are capable of? The answer is that we are all human; we all possess in common our humanity. What does the unborn child also possess, regardless of stage of development? Humanity; it is a human from the moment of conception – human parents, human DNA, self-directed, growing etc. As a human being, the human embryo or foetus should be entitled to human rights.
“Human rights, viewed at the universal level, bring us face-to-face with the most challenging dialectical conflict ever: between “identity” and “otherness”, between the “myself” and “others”. They teach us in a direct straightforward manner that we are at the same time identical and different.
Thus the human rights that we proclaim and seek to safeguard can be brought about only if we transcend ourselves, only if we make a conscious effort to find our common essence beyond our apparent divisions, our temporary differences, our ideological and cultural barriers.
In sum, what I mean to say, with all solemnity, is that the human rights we are about to discuss here at Vienna are not the lowest common denominator among all nations, but rather what I should like to describe as the “irreducible human element”, in other words, the quintessential values through which we affirm together that we are a single human community!”
- Consider a foetus at 23 weeks gestation, and an infant born prematurely at 23 weeks gestation. The former is legally allowed to be killed. The latter is protected by law from intentional killing. Given that the only difference between them is their location (in utero versus ex utero), and that as an entity they are inherently the same, how can we then say that there is any intrinsic property or quality that entitles one to human rights whilst depriving the other? I would say that we cannot, and that both are equally entitled to human rights (if you disagree, I would be very interested to hear your thoughts on why). To take it further, having said that the 23 week old foetus is entitled to human rights, and with the knowledge that human development in utero is a continuum from conception to birth, how can we deny the unborn child at 20 weeks human rights? At 8 weeks? At 4 days? The only way to do this is to move to a capability-based requirement for human rights, and the problem with this is addressed above, and also in one of my earlier posts.
So now we can consider how the human rights of the unborn child come into conflict with the human rights of the pregnant woman. The pertinent human right of the unborn child is fairly obvious:
“Everyone has the right to life, liberty and security of person”
The Universal Declaration of Human Rights
“Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”
International Covenant on Civil and Political Rights 1966
The relevant right of the pregnant woman:
The right to “security of person” is often used as the basis for the right to bodily integrity, but different countries have elaborated upon this differently, often through case law. In Australia, it was recognised in Department of Health & Community Services v JWB & SMB (“Marion’s Case”) 1992:
“Every human being of adult years and sound mind has a right to determine what shall be done with his own body”
The argument from bodily integrity is that the pregnant woman has a right to decide what to do with her own body, even that means terminating the physiological support necessary for the continuation of the life of her unborn child; an action which clearly violates the unborn child’s right to life. So there are two rights in conflict. How is this conflict to be resolved? There are two opposing viewpoints:
- The right of the pregnant woman to bodily integrity outweighs the right of the unborn child to life.
- The right of the unborn child to life outweighs the right of the woman to bodily integrity.
It may seem unnecessary to have stated the viewpoints like this, but I wanted it to be clear that we are talking about which human right takes precedence over the other. Let me now introduce the term, ‘absolute right’. This is a right that is not subject to limitations. A non-absolute right, on the other hand, is one which can be limited according to certain parameters. The right to bodily integrity is not recognised as an absolute human right (I won’t give examples here, as I’m planning to talk more about it when I discuss the Sovereign Zone argument. Suffice for now to say that this is the case). The right to life is also not an absolute right. However, it is a non-derogable right, which means that it cannot be suspended even in a state of emergency. Other non-derogable rights are:
- freedom from torture or cruel, inhuman and degrading treatment or punishment; and freedom from medical or scientific experimentation without consent
- freedom from slavery and servitude
- freedom from imprisonment for inability to fulfil a contractual obligation
- prohibition against the retrospective operation of criminal laws
- right to recognition before the law
- freedom of thought, conscience and religion
All of these, except for the right to life and the right to freedom of thought, conscience and religion, are also absolute rights. Note that the right to bodily integrity, or security of person, is not listed here. This highlights one method of resolving a conflict of human rights, which is to consider the ‘higher ranking’ right (as determined by its classification as an absolute or non-derogable right) as taking precedence over the lower ranking right. By this method, the right to life would take precedence over the right to bodily integrity. As a general example, a person carrying an infectious disease may be quarantined against their will in order to protect people they may otherwise come into contact with and endanger. This is a conflict between the infected person’s right to liberty and other’s right to life, where the right to life takes precedence.
There are two more perspectives that can be taken into account when considering a conflict of rights. One is to consider the magnitude of sacrifice that would result from the deprivation of either right involved, and the other is to consider the broader societal implications. The latter is an acceptable approach in Australian law, as shown by the goals that are determined to be legitimate for the purposes of imposing limitations on human rights, including preservation of public safety, public order and the rights and freedoms of others
From this we can see that the right to bodily integrity could be legitimately limited to order to (1) preserve the right to life of the embryo/foetus, and (2) in the interests of preserving the safety of a sub-section of society, i.e. the unborn. This doesn’t actually answer the question of which right ought to be limited in this particular conflict (because you can make similar statements about limiting the right to life), but it does give legitimacy to the idea of limiting the right to bodily integrity.
To look at the magnitude of sacrifice is to take a more intuitive perspective. It’s to ask; which party makes the greater sacrifice if their right is violated? In the case of the abortion, the foetus makes the sacrifice of its life. One could suggest that there is no greater sacrifice than this. This is not to minimise the sacrifice of the pregnant women if her right to bodily integrity is violated; not only is there the physical burden of the pregnancy, but there are also social and emotional aspects that should be considered. For example, the main reasons women give for having an abortion are:
- Having a child would interfere with education
- Having a child would interfere with employment
- Having a child would impair the ability to care for other children
- Could not afford a child
- Did not want to be a single mother
- Relationship difficulties
- Already had enough children
- Not ready to have a child
So it is clear to see that there would likely be sacrifices on the part of the pregnant woman were she to be made to forgo an abortion and bear her child. There are also the physical risks entailed in the birthing process. Adoption may negate many of these sacrifices, but nonetheless may come with its own difficulties and emotional struggles.
A useful way to consider the magnitude of sacrifice approach is to consider how the respective sacrifices (the life of the foetus versus the varied sacrifices of the pregnant woman) would be considered if the situation in question was a conflict of rights between a mother and her infant child. There is little question that few would consider the sacrifices that the mother has to make in order to sustain her child sufficient reason to end the life of that child. Thus I would suggest that this is also the case with the embryo/foetus, as I have argued that it holds equal human rights to the hypothetical infant and should therefore be treated equally in resolution of this conflict.
So what I’ve covered in this post could be summed up as the following:
1. The unborn child is entitled to human rights by virtue of its humanity, including the right to life.
2. The right to life can legitimately take precedence over the right to bodily integrity.
3. Therefore abortion could legitimately be a violation of the unborn child’s right to life without sufficient justification.
A final note: I quoted the International Covenant on Civil and Political Rights (1966) above: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” The argument could be made that the unborn child is not arbitrarily deprived of their life through abortion, because the decision to abort is not made on a whim, but is instead a carefully thought-through and agonised over decision. Furthermore, it is a procedure carried out under the auspices of laws created as a result of non-arbitrary processes.
I will point out that this still would not prevent the act itself from being arbitrary, i.e. based upon the personal opinion or will of the individual; a decision made not because it is the right/correct thing to do, but because it is the desired thing to do. For comparison, take any reason for depriving the unborn child of life, and try to apply it to a situation where we talking about a newborn infant (again). For example, one of the reasons given for abortion is that the pregnant woman is unable to afford a child. Would we consider this a valid and justifiable reason for her to take the life of her newborn? Or would we say that the newborn in this case was arbitrarily deprived of their right to life? Remember that I have equated the unborn child and the newborn as both human and having equal right to life. That being the case, any process that results in the newborn being deprived of life that would be considered arbitrary should also be considered arbitrary when applied to the unborn child.
It is worth noting that both the Australian Capital Territory and Victoria have, in their charter of rights, made specific mention of the fact that these rights do not apply to the unborn child. It’s telling that they felt this necessary; that special mention had to be made in order to exclude the unborn child. It is suggestive that the logical course would otherwise be to apply these rights to all humans, born or unborn.
My next two posts will look specifically at the Sovereign Zone argument and the Right to Refuse argument. If you have any questions, disagreements, refutations, suggestions etc., please feel very welcome to add them to the comments.
** Further quotes to support the entitlement of the unborn to human rights **
“WHEREAS the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”
Declaration of the Rights of The Child
Adopted by UN General Assembly Resolution 1386 (XIV) of 10 December 1959
“Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.”
International Covenant on Civil and Political Rights
Adopted by the General Assembly of the United Nations on 19 December 1966
“I will maintain the utmost respect for human life, from the time of its conception, even under threat, I will not use my medical knowledge contrary to the laws of humanity”
Declaration of Geneva, 3 months before the 1948 Universal Declaration of Human Rights
(now states only ‘I will maintain the utmost respect for human life”.)