This is This is the sixth post in the Philosophy Notes series. Each post is a supplement to my philosophy study guides, designed to help beginning philosophy students read, understand, and think critically about the classic books of philosophy.
Abortion, Natural Rights, and the Limits of Philosophy
The debate about the constitutionality of abortion has become much louder during 2021. The U.S. Supreme Court has heard pro and con arguments about a law in the state of Georgia that would prohibit abortions after 15 weeks of fetal development. Another law from the state of Texas has put the limit on abortion at 6 weeks.
Justices of the Court are cautious not to confuse the constitutionality of abortion with their own moral opinions. But most of the popular debate about abortion ignores the Constitution in favor of joining battles about the morality of killing a human fetus versus the morality of forcing pregnant women to carry the fetus until birth.
In the popular
debate about the morality of abortion, some argue that killing a human fetus violates the natural right
to life of the fetus. On the other side
of the debate are those who argue that all humans have the natural right
to liberty, including the freedom to control what happens in and to one's own body.
As we have seen in previous posts, we know that philosophers can at least analyze the concepts that frame the debate, even if this task is not sufficient to settle the debate about the morality of abortion.
1. There are eight concepts involved in the question: natural, human being, fetus, pregnancy, abortion, rights, the right to life, and the right to liberty.
1.1. Natural.
We should begin with the word “natural” because this word is at the heart of concept analysis. In the context of concept analysis, a natural property or attribute of a thing to which a concept applies is essential to that thing being the kind of thing that it is. For example, being three-sided is a natural property of a triangle because three-sidedness is essential to a shape being a triangle. If a shape is not three-sided, then it is not a triangle. Being unmarried is a natural property of being a bachelor. If an adult male is married, then he is not a bachelor.
The word “natural” is also used as an antonym for “conventional,” “artificial” or “man-made,” as in the sentence “That ice cream has only natural ingredients.” “Natural” is a synonym for “caused by nature; not made or caused by humankind, as in “The flowers in the vase are natural.”
Some natural ingredients of an object found in nature are not essential to the thing that has the ingredient or is caused by nature. For example, multiple mutations or variations of a virus caused by nature are not always declared essential to the kind of virus that has been mutated.[i] And explosions of a volcano are caused by nature but such events are not essential to the volcano being a volcano. Dormant volcanoes are volcanoes.
1.2 Human.
1.2.1. Science
What is essential to the concept of humans? Let’s begin with the example of an anthropologist who wants to find out whether the bones recently discovered in a pit are human. What she is looking for are the bones of a bipedal primate mammal (Homo sapiens). If she has an insufficient amount of bones she might have to do a DNA test to determine whether the bones are first, the bones of a mammal, second the bones of a primate, and finally, the bones of a bipedal primate.[ii]
1.2.2 Dictionary
There are several popular uses of “human.”
a: of, relating to, or affecting people: for example, the human body; the human brain; human suffering; problems that have occurred throughout human history: for example, “The accident was blamed on human error.” [=the accident was blamed on a person's mistake rather than on the failure of a machine]; a story that has human interest = a human-interest story [=a story that is appealing because it involves the experiences of real people] “The need to be loved is simply part of the human condition.” [=part of being a person]; “an area where ancient human remains [=parts of the bodies of dead people] have been found.”
b: typical of people, a human failing/weakness
c: having good or bad qualities that people usually have, for example, "She is a kind and human person."
1.2.3 Philosophy
1.2.3.1 In philosophy, the word “person” is a common substitute for “human.” Persons are humans who have special attributes or properties (“a rational nature”) that make them unique in the class of animals. Here is a quote from Boethius (427-525 CE):
Person is an individual substance of rational nature. As individual it is material, since matter supplies the principle of individuation. The soul is not person, only the composite is. Man alone is among the material beings person, he alone having a rational nature. He is the highest of the material beings, endowed with particular dignity and rights. (De Persona et Duabus Naturis, ii, iii, in P.L., LXIV, 1342 sqq).
1.2.3.2 Are human children persons “having a rational nature…endowed with particular dignity and rights”? One thousand years after Boethius, Thomas Hobbes (1588-1679) rejected all talk about children having rights. In his Elements of Law, Hobbes writes that children have only duties of obedience to their parents. Like the family dog or the cattle in the pen, children are the property of their parents and can treat their children in the same way that they treat their animals. Children “are in the most absolute subjection to their parents.”
"And the parents may alienate them, that is, assign his or her dominion, by selling or giving them, in adoption or servitude to others, or may pawn them for hostages, kill them for rebellion, or sacrifice them for peace, by the law of nature, when he or she, in his or her conscience, think it to be necessary" (23:8).
It does not take much thought to deduce what Hobbes would say about the human fetus. If the law of nature allows parents to kill a child when, “in his or her conscience” they think it to be necessary, then the law of nature must also allow parents to abort a fetus.
1.2.3.3 One hundred years after Hobbes, the philosopher John Locke (1632 – 1704 CE) appears to take a middle ground:
"[A person is] a thinking intelligent Being, that has reason and reflection, and can consider itself as itself, the same thinking thing in different times and places; which it does only by that consciousness, which is inseparable from thinking, and as it seems to me essential to it." (Essay on Humane Understanding, Book 2, Chapter 27, Section 9)
The difference between Boethius and Locke is that Boethius begs the question (“Does a human have rights?”) by assuming that all humans are persons, thereby making “dignity and rights” a part of the definition of “person.”
Locke says nothing about rights in the quoted paragraph. His idea of a person suggests that personhood does not emerge until a human acquires “reason and reflection.” This would come at a later age when the child can understand the law of nature and use it to guide his or her own choices.
This does not mean that a young child has no rights at all. Against Hobbes, Locke writes in Second Treatise of Government that children have rights that are parasitic on the natural obligations of their parents to defend, protect, feed, clothe, shelter, and educate them until they reach “the age of reason” (§63). Where Hobbes sees children as property to be exploited, Locke sees them as irrational humans in need of care.
1.2.4 Fetus (zygote, embryo)
An embryo is termed a fetus beginning in the 11th week of pregnancy, which is the 9th week of development after fertilization of the egg. A zygote is a single-celled organism resulting from a fertilized egg. The zygote divides to become a ball of cells that eventually implants in the wall of the uterus. (Medicine Net Embryo v Fetus)[iii]
1.2.5 Pregnancy
Pregnancy is a state or condition in which a woman carries a fertilized egg inside her body.
1.2.6 Abort, abortion
To abort a human zygote, embryo or fetus is to kill it before its birth. Abortion is the procedure of killing the zygote, embryo, or fetus before the birth of the infant.
1.2.7 A Right
The word “right” is as ambiguous as the word “natural.” In the form of an adjective, we say “You did the right thing when you returned to the owner the wallet you found on the sidewalk” and “It is never right to break a promise or tell a lie.”
But in the form of a noun, we say “a right,” as in “I have a right to not wear a face mask when I go out,” “Every person over the age of 18 should have a right to vote,” and “Everyone has a right not to be killed.”
It is the noun form that is relevant to our analysis. In this form, to say that there is “a right” to do or refrain from doing an act means that one has a valid claim, entitlement, or is privileged to do or not do it. To say that Esther has a right to a piece of land she inherited from her parents is to say that she has a valid claim to it, a claim that will be “backed up” or “enforced” by society. To say that her 16-year-old has the right to drive a car (if he passes the licensing examination), is to say that he has a privilege that he did not have when he was 15.
When one says “I have a right to
P,” this implies the existence of a society or a community of persons who will back
up or enforce the claim or privilege. Imagine a solitary person on a desert island pointing to a tree
and saying “I have a right to cut down that tree.” This makes no sense because without the support of others, his claim to the tree is not valid.
In Utilitarianism (1860), John Stuart Mill defined a right as “a valid claim on society to protect [the claim holder] in the possession of it, either by force of law or by that of education and opinion.” (52). In my study guide to Mill (Understanding John Stuart Mill, 2017), I point out that a claim of any kind involves three parties: “the right holder, actual or potential offenders, … and society.” To repeat, the valid claim is made on society because it is a society that will use the power of negative public opinion to protect the right-holder against interventions.
1.2.8. Right to life
In the abortion debate, the right to life is the right not to be killed. Few would say that the right not to be killed is absolute. Most would say that it is conditional because the person who did the killing might have done so in self-defense, to save their own life.
1.2.8 Right to liberty
The right to liberty is the right to be free from impediments to doing what one wants to do. (For example, DeShawn complains that he is not free to travel on Highway 101 because of work being done there). Again, few would say that the right to liberty is absolute. Most would say it is a conditional right because one cannot use their liberty to harm others unless one is acting in self-defense.
In the abortion debate, the right to liberty is the right of a pregnant woman to be free from impediments to the act of aborting the fetus. Many would say that this right is conditional because killing is a kind of harm, and one cannot use their liberty to cause harm to others unless one is acting in self-defense.
2. Putting all concepts together.
Does a human fetus have an absolute or conditional natural right to life? Does a pregnant woman have an absolute or conditional natural right to liberty?
We are now ready to use the preceding analysis of key concepts (1 – 8) to draft three new questions:
(a) Does a fetus of the bipedal primate mammalian class have a valid claim on society to protect it from being killed?
(b) Does a fetus of rational nature have a valid claim on society to protect it from being killed?
(c) Does a pregnant human female have a valid claim on society to protect her from the attempts of others to prevent her from killing the fetus she is carrying?
If the claim on society in (a), (b), and (c) is essential, then both questions are open. As explained in earlier blog posts, the answer to a closed question is to be found in the question. Hence, it should be a contradiction (a logical impossibility) for the human fetus (as defined) not to have a valid claim on society to its protection. And it should also be a contradiction (a logical impossibility) for a pregnant woman not to have a valid claim on society to protect her from the intervention of others.
But (a), (b) and (c) are not self-contradictory! They do not state logical impossibilities. Therefore, they are not closed questions. There is nothing in the two analyses [(a) and (b)] of the concept of “human fetus” that logically implies a valid claim on society to protect the fetus from being killed. And no analysis of “pregnancy” or “pregnant human” logically implies a valid claim for societal protection of the pregnant women who want to abort the fetus.
To put it another way, in (a), there is nothing in the scientific concept of any animal (including the human-animal) that logically implies a valid claim on society to protect members of the Mammalia class (including humans) from being killed.
In (b), there is nothing in the philosophical concept of “human” that logically implies a valid claim on society to protect beings of a rational nature from being killed.
I can ask, without contradiction, “I know that the human fetus is now in the second term of the pregnancy, but does it have a claim on society to protect it from being aborted (killed)?”
I can also ask, without contradiction, “I know that she is now in the second term of her pregnancy, but does she have a claim on society to prevent others from interfering with her decision to abort?”
Both of these questions are open. We can answer with a “yes” or “no”, but in each case, we must go outside of the question and find evidence that will support the existence of a valid claim.
Recall the earlier example of an open question: “I know he is a bachelor, but does he want to get married?” The answer to this question is not to be found in the question. We must go outside the question and do empirical research to find the answer. The answer must be evidence-based. Data gathered from observation and experience must be provided, for example: “He told me he wants to get married.”
The answer to the open question “I know that the pregnant woman’s fetus is now in the second term of the pregnancy, but does it have a valid claim on society to protect it from being aborted (killed)?” is also empirical. Since our discussion is about moral rights, the valid claim for protection might be based only on public opinion. For example, polling data in a state or country might show little support for abortion in the second trimester of pregnancy, or it might show great support for protecting a woman’s right to choose abortion at any stage of pregnancy. In the former case, there is a claim but not a valid claim. In the latter case, the claim is valid.
3. From “does” to “ought”
It might be objected that the important question is not “Does a fetus have a valid claim on society to protect it from being killed?” but “Ought a fetus have a valid claim on society to protect it from being killed?” Similarly, the important question is not “Does a pregnant woman have a valid claim on society to protect her from the inference of those who would prevent her from having an abortion?” but “Ought a pregnant woman have a valid claim on society to protect her from the interference of those who would prevent her from having an abortion?”
The fact that the fetus does or does not have a valid claim on society for its protection does not logically imply that it ought or ought not to have such a claim. There are societies in which there is strong support for early abortion of the fetus but this does not imply that there ought to be such support. There are also societies in which there is strong support for prohibiting abortion at any stage of fetal development.
The “ought” must be supported in a way that does not make the argument circular. For example, we cannot say that a fetus ought to have a valid claim on society for the protection of its life because as a human being it has a natural right to such protection. This just takes us back to where we started.
If there are no natural rights, then we must be satisfied with rights (valid claims on society) that are conventional (artificial, man-made). The open question is: “What conventional rights (valid claims on society) regarding abortion does the fetus and the pregnant woman have?”
If we change the question fron "does have" to "ought to have", here is John Stuart Mill’s brief response: “I can give no other answer than general utility” (Utilitarianism, ch. V).
And how do we determine the general utility of aborting the fetus at an early stage (or any other stage) of fetal development? How do we determine the general utility of forcing pregnant women to carry the fetus until birth? These are empirical questions that take us far outside the boundaries of philosophy and conceptual analysis. We are now in the land of social science. Philosophers should now turn back and leave it up to the scientists to decide what rules regarding abortion promote the greatest good for the greatest number.
But wait! Isn’t the empirical task of the scientist dependent on the normative assumption that there is a moral obligation to promote the greatest good for the greatest number? An affirmative answer to this question brings the philosopher back into the game. What is needed is an argument for general utility.
Does this seem familiar? See Philosophy Notes, Part 5, John Stuart Mill's Utilitarianism, and Laurence Houlgate's Understanding John Stuart Mill ( www.philosophyfriend.com )
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[i] “Immunologist David A. Ostrov, Ph.D… found Omicron has substantially more mutations than the Delta variant at four key sites within the virus.” And the Omicron is itself a variant of COVID-19. https://www.news-medical.net/news/20211209/Analysis-finds-substantially-more-mutations-in-the-omicron-SARS-CoV-2-variant.aspx
[ii] “A 2005 study found that chimpanzees — our closest living evolutionary relatives — are 96 per cent genetically similar to humans. … A 2007 study found that about 90 per cent of the genes in the Abyssinian domestic cat are similar to humans…. Domesticated cattle share about 80 per cent of their genes with humans, according to a 2009 report in the journal Science.” (https://www.independent.co.uk/news/science/human-dna-share-cats-cattle-mice-same-genetics-code-a8292111.html)
iii Medicine Net. https://www.medicinenet.com/embryo_vs_fetus_differences_week-by-week/article.htm
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