The ongoing public debate between “right to life” and
“freedom to choose” advocates, seems to be falsely suggesting that a choice
must be made between irreconcilable positions. The debate overlooks the legitimate
reasons that people have to support both “right to life” and “freedom to
choose” in different contexts. I argue in this article that opportunities for
human flourishing are likely to be greatest when the political/legal order recognizes
the validity of both “right to life” and “freedom to choose” in contexts where
those concepts are most relevant.
The article is addressed to people who believe that our
main focus in considering the appropriateness of laws relating to termination
of pregnancy should be on their implications for human flourishing. I hope that includes all readers.
My starting point is the proposition that opportunities for
human flourishing are likely to be greatest within a political/legal order which
allows individuals with differing values to flourish in different ways without
coming into conflict with each other. The underlying idea here is that individual
flourishing is an inherently self-directed process. The advocates of differing
values may all think that they have the best recipe for human flourishing, but
no-one can flourish if they are forced to live according to values they oppose.
The “live and let live” view presented in the preceding paragraph is not original. It is explained more fully, with references to major contributors to relevant philosophy, in my book Freedom, Progress, and Human Flourishing.
The line of reasoning sketched above suggests that people
who hold widely differing views about issues such as termination of pregnancy
may be able to live in peace and seek to flourish in their own ways, provided
they refrain from attempting to coerce one another to modify their behavior. Such
attempted coercion usually involves groups of people using their political
power to impose their will on others.
Of course, we may have good reasons to believe that some
people are seeking to flourish in ways that are unlikely to succeed. We can try
to persuade them to alter their ways but use of coercion to modify their
behavior has potential to reduce further their potential to flourish. Putting
people into jail does tend to diminish their opportunities to flourish.
When should the legal order recognize the right to life?
To this point I have obviously been writing about behavior
that does not infringe the rights of others. When behavior does infringe the
rights of others, it is appropriate for it to be subject to legal constraints. Infanticide
is the example that is most pertinent to the current discussion.
The proposition that infants have a right to life is not
controversial. Even so, legal systems tend to recognize that extenuating
circumstances are often associated with the crime of infanticide. In
high-income countries, infanticide is often attributed to post-natal
depression. In 18th century Britain, when infanticide more commonly occurred
for economic reasons (for example, to give other children in a family a better
chance of survival) it was apparently common for juries to practice “pious
perjury” to avoid convicting offenders for murder. In the 19th
century, laws gave explicit recognition to the possibility that extenuating
circumstances might exist in cases of infanticide.
There are strong grounds to argue that late term abortion is
tantamount to infanticide because the unborn child is at that stage capable of
living outside the womb. It makes sense to argue on that basis that in the
final weeks of pregnancy the unborn child has a right to life almost equivalent
to that of an infant. The “almost” qualification is appropriate because the
mother’s life may sometimes to be endangered if an unborn child is accorded the
same right to life as an infant.
When should the legal order recognize that women have a
right to choose?
In my view the legal order should recognize that a woman has
responsibility to decide what status should be accorded the embryo in her womb
in the weeks immediately following conception. She is best placed to make such
judgements because the embryo is only capable of existing with the life support
that she provides it.
The most common alternative is for politicians to assert that
they have a right to decide the status of embryos. They may follow the advice of
religious authorities, philosophers of various kinds, the majority view of
electors, swinging voters, party leaders, their spouses, their best friends
etc. or they may rely on their own intuitions and feelings. Some politicians argue
that embryos should be sacrificed to achieve their objectives concerning
optimal growth of population, or to enable other species to flourish. Others argue
that abortion should be illegal because human life is precious from the moment
of conception.
Politicians should show some modesty when contemplating laws
that over-ride the natural rights of individual pregnant women to make judgements
about the status of the embryos in their wombs and to act according
to their consciences. They have a right to seek to persuade pregnant women to
adopt their views on the status of the embryo, but there is no good reason why any
of their views should constrain the actions of a woman who is not persuaded by
them.
There is nothing in human nature that ensures that every woman
with an embryo in her womb will view it as having the status of an entity that
is worthy of being provided life support, given the opportunity costs that
might entail for herself and her family. If the woman does not wish to maintain
life support to the embryo, the use of force to require her to do so imposes a
form of involuntary servitude upon her.
The authoritarianism involved in denying women the right to
choose in the early stages of pregnancy is compounded by the invasion of
privacy that is required to ensure compliance with this policy.
The transition
If it is accepted that right to life should prevail at the
late stages of pregnancy and that freedom to choose should prevail at the early
stages, that leaves the question of what rules should apply between those
stages. It makes sense for the option of termination to be progressively
restricted as pregnancy proceeds, rather than legal one day and illegal the
next.
A personal view
The views presented above have focused on what should be
lawful or unlawful in a society which rejects authoritarianism and recognizes
the rights of individuals with differing values to flourish in different ways.
The discussion has been about the ethics of alternative legal orders, rather
than personal ethics.
In case anyone thinks they can infer my views on the personal
ethics of abortion from what I have written above, I will make them clear now. I
subscribe to the view that because human embryos have potential to become human
persons they should not be lightly discarded. I think the world would be a
better place if more people were persuaded to adopt to that view, but it has
potential to become a much worse place if governments attempt to impose it.
Conclusions
Opportunities for human flourishing are likely to be
greatest in a political/ legal order which allows individuals to flourish in
different ways without coming into conflict with each other.
When behavior infringes the rights of others it is
appropriate that it should be forbidden. Infanticide obviously falls into that
category. It is appropriate to recognize an unborn child as having a right to
life almost equivalent to that of an infant in the final weeks of pregnancy.
The issues involved in the early weeks of pregnancy are
quite different because the embryo is totally dependent on a woman to provide
it with life support. The woman should be recognized to have responsibility to
decide the status of the embryo at that stage. If she does not consider it to
have a status worthy of being provided ongoing life support, her view should be
respected. Laws requiring women to provide life support against their impose a
form of involuntary servitude upon them.
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