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.
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.
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.