Abortion: Legal Rights and Social Values

RIGHTS AND VALUES

Value is a teleological notion, relating to the ends we pursue. Our values are correlative notions to those ends. Right is a notion which establishes the position of the entities which have ends or values. Entirely teleological moral theories misconceive the nature of their subject by overlooking the point that ends (values) are the ends of individual entities (whether these "individual entities" are biological individuals, nations, cultures, etc. is another question).

THE BASIS OF RIGHTS.

Rights and the concept of right are systematically related. Rights are those claims that are derived from the concept of right as opposed to those claims which arise simply from our values in the ends which we pursue. Rights are those claims which must be recognized not because of ends or values but because of our status as entities having ends or values ourselves. The system of rights defines our set of categorical claims upon each other establishing our position under the concept of right. The values we pursue we pursue from that position. In this sense, right is prior to good or to values. (See Rawls, A Theory of Justice, 1971.)

WHO HAS RIGHTS?

It is traditional to recognize ordinary human beings as the general possessors of rights by virtue of the fact that not only do they have purposes, but also that they have rationality. Rationality in this context means the capacity and disposition not only to pursue ends but to form judgments about the world and about our ends. It is of the nature of judgments that they are universal in form.

I would suggest that it may have been a mistake in philosophy of this tradition to recognize only the rights of rational individuals. It would seem to me that the capacity for suffering also entails certain rights. Surely we would agree with Bentham and the classical utilitarian that suffering--even the suffering of animals--is bad. Suffering is related to consciousness. I think the argument should be developed that just as it misconceives the significance of purpose and rationality to view them teleologically (i.e., to maximize their realization without regard to the entities in which they reside and to which they pertain), so it misconceives the value we put on minimizing suffering to think of it as an abstract entity without regard to the entities to which it pertains.

To make these points consider the arguments against a system for punishing the innocent when this would maximize the sum of advantages, or for sneaking up on and killing lingering, seriously ill people in a painless way which they did not expect, thus sparing them even the pains of anticipation. The arguments against these have to do with the notion that it would violate the rights of those individuals. It violates their rights because they are rational beings who are capable of forming judgments about right and wrong actions. Consequently it would be necessary either to deceive them about our general principles (we are assuming we will deceive them about what it is we are going to do to them particularly on a particular occasion), or to put forward our general principle for their judgment.

But if we do the latter then we would be creating the very anxiety that secrecy is meant to eliminate. In short, consideration for human beings' capacity for judgment excludes this policy. However, it would not exclude it in respect to a brute animal, since the brute animal is capable of suffering but not of forming judgments about moral rightness and wrongness. The need and indeed possibility of putting forward arguments and explaining our policy of painless killing does not arise, and therefore whatever rights a brute animal has are not implicated in this way. It does seem, however, that a brute animal does have rights to be spared suffering, and that these rights are its claim and not just the claim of the abstract ideal of minimizing suffering.

RIGHTS AND VALUES IN ABORTION

Applying these considerations to the abortion debate, first let us ask whether we think that the fetus first has the rational capacities necessary to ground the full-blown rights of persons. Plainly it does not. Does the fetus have the capacity to suffer? It may have these capacities, and if it does then it has rights that derive from them. Obviously, the recognition of the possibility of suffering does not give the fetus as many rights as some opponents of abortion, and as our perhaps intuitive distaste for abortions of convenience seem to require. It may be that fetuses, after all, do not suffer, or that abortions can be made painless for them.

For reasons that may be developed, I have never been impressed by the arguments that the fetus has a potential for human capacities, for rationality and that its rights are therefore grounded on that potential. I think that arguments based on potential cannot convincingly be made to prove only what is plausible, that they inevitably prove too much, vesting rights in say, unfertilized ova. And it is striking that where the capacity for rationality is definitely lost, as in the hopelessly brain-damaged individual there are very few who would assert the full range of human rights. An interesting case is a temporarily unconscious person, a person asleep. An argument can readily be made to show why he has the same rights as a fully conscious person. After all, all fully conscious persons must sleep regularly and often.

My suggestion is that in addition to whatever rights might come from the capacity that the fetus has for suffering, it also represents a value. It represents the locus of human striving (the human strivings of others than the fetus) and the instrumentalities of human strivings. The fetus does represent a potential focus of human affections and relationships, of human capacities and the like. These values are, however, the values of presently fully rational beings.

Abortions of convenience and other procedures that treat the fetus too casually deny these extremely important values. Let me make a somewhat brutal sounding analogy, which nevertheless brings out the logical structure of my point. A rare painting, a manuscript, or some other intrinsically valuable product of the human spirit or entity that might speak to the human spirit (the human spirits of presently existing fully rational beings) represents important values. To destroy the manuscript, the painting, is a serious injury to those values. But it does not violate the rights of the entity destroyed. The painting's rights have not been injured when it was destroyed. In the same way, one might recognize the fetus as a focus of value without yet ascribing rights to the fetus. The consequence of this argument is that the kinds of treatment that might be accorded to the fetus will allow for arguments of balancing one value against another which are entirely inappropriate where rights are in question.

Finally, I recognize there are implications of what I am saying for the rights of newly-born infants which analogously to the fetus, also do not have developed rational capacities. To the extent that the argument really does carry through to them I reluctantly accept its conclusions. If abortion and birth control were unknown in a situation of intense famine, I would reluctantly allow my argument to be extended to a newly-born infant born to a family with many children, all of whom are on the point of starvation.

Our horror of infanticide might be accommodated within my argument in several ways: first, our growing uncertainty as the infant grows about the point where rudimentary rational capacities actually set in. Second, the fact that the infant represents a much more intense focus of value than does the fetus by virtue, if nothing else, of its greater capacities and potential, but also by virtue of its more visible presence. (I am clear that its visible presence could not be used to create or extinguish rights if they existed by virtue of another argument. If the fetus has rights, the fact that they can be violated without our "noticing it" by abortion, does not extinguish those rights.) Third, in a situation where many persons crave children, to dispose of this intense locus of value without consideration of this is itself an evil act.

Charles Fried is professor of Law. His article is based upon his guest lecture to History of Science 141. "Problems in Medical Ethics."