The Role of Rights in the Abortion Debate

Three of the most fundamental rights that people are entitled to are laid out in Article 3 of the Universal Declaration of Human Rights, which states that “Everyone has the right to life, liberty and security of person” (UDHR, 1948). In this piece, that is sadly far too short to truly be fit for purpose, I would like to explore what happens when two of those rights conflict – namely, the right to life and the right to liberty – and I believe there is nowhere that this debate is so often had than in the context of whether abortion is an ethical choice that all women should be entitled to, or the committing of countless murders that we should condemn as morally unacceptable.

It is interesting to note that in Article 1 of the UDHR it is stated that “All human beings are born … equal in … rights” (ibid.) the key word being ‘born’. As such, under the criteria of who should be rights-bearers according to this document, the right of a woman (who has been born) to liberty trumps any right to life that a foetus (that has not been born) may or may not possess. Were this account of who should have and who should have not have rights broadly accepted, however, we should not see the vigorous debate over the topic that we do. The question then, is what alternative conceptions of who should possess rights lead to foetuses being classed as rights-bearers, and do these different frameworks have persuasive reasons for why we should accept them over the UDHR’s criteria?

For instance, one common way to establish who should have rights is to start from the uncontroversial basis of assuming that all adults able to make reflective choices about their lives based on their interests should be considered to be rights-bearers (Kramer, 2010; Andersson, 2013). Then, building from this position, we can exclude or include others as necessary. For instance, a sleeping adult should be included, as there is no reason to think that the defining something that allows them to make reflective choices has disappeared, even though while they are asleep there is an impediment to their making choices. Similarly, a comatose adult, who could awaken at any point given the necessary sustenance and a lack of outside interference, should also be thought of as a rights-bearer, even if they are unable to exercise those rights while in a coma. Given the similarities in potentiality between an undeveloped foetus and an adult human in a coma, it makes rational sense to suggest that if the former should be a rights-bearer, so should the latter. I have greatly abbreviated the argument here for the sake of space, so for a more persuasive and in depth account, please see AKM Andersson’s “Choices, Interests, and Potentiality: What Distinguishes Bearers of Rights?” where this argument is made in far more depth.

In the meantime, let us assume that my (borrowed) argument has merit, and that we should consider a foetus a rights-bearer. What implications does that have for the position we should take in the abortion debate? It would appear to me that this understanding of who should have rights leads to the conclusion that the foetus has a right to life just as much as a woman should have a right to liberty and to make choices. The fact that the woman thinking of having an abortion is in a position where her she is able to actually make choices in the present, does not, in my eyes, override the foetus’s right to make choices in its future.

As the foetus would, we can reasonably assume, choose to live if it were able to argue on its own behalf, it would appear that an injustice is being committed when abortion takes place. On what grounds, you might ask? Well, I think if one follows the same logic that establishes that a foetus is a rights-bearer, I believe it becomes eminently apparent. Let us take two adults humans – A and B – who are both cognizant. We would not consider A to have the right to choose to end B’s life (provided B does not wish that and A’s life is not being imperiled by B) simply because A wishes to do so. We would also, presumably, not consider this morally acceptable even if B were asleep (and therefore unable to act), or feel unable to feel pain, or in a coma. If we agree to the logic above then it follows that the right of the foetus to live should trump the right of a woman to have an abortion, unless, perhaps, in cases where her life is in danger.

But even if this is, ethically, the way things should be, we come to a practical question – women have always had abortions, or long enough for ‘always’ to not be a hyperbolic choice of word. Even if we were to re-criminalise abortion (based on its violation of the foetus’s right to life) women would likely still have abortions, with many of them taking place in locations and using methods that substantially increase the risk to the life of the woman having one. If making abortion illegal was to have very little effect on the number of abortions taking place (debatable, but let us assume it would not lead to a significant reduction in the number of abortions) but imperil the lives of many women, is there a practical case for dismissing the rights of the foetus?

I am inclined to say no. I believe rights should be based on moral reasoning, not on practical considerations. We can imagine many situations where life might be made easier by trampling the rights of some because of practical considerations. Why should people have the right to a fair trial if one of their friends turns out to be a terrorist for instance? Or why should you have a right to privacy if suspected of a crime? Or to due process? I would suggest that overriding rights for the sake of expediency or convenience is a slippery slope. One of the key reasons for having human rights, is the idea that they are universally applicable, even if in a sheerly utilitarian sense it would make sense to disregard the rights of some for the greater good.

I have no doubt that my argument here is controversial, but I believe that it is fundamentally a sound one. I am more than happy to discuss my conclusions – that foetuses should have rights, that these rights mean that it logically follows that abortion is unethical, and that even if it were the case that on a practical level more lives in total would be imperiled by re-criminalising abortion, we would still not be justified in overriding fundamental rights because of these practical concerns – via email. I will end by saying that I hope that some of the argument here has been, at the very least, thought provoking, and may lead some of those who are concerned with supporting or decrying practices based on reason rather than dogma to give some serious consideration to their position on abortion.

By James Stopa-Hunt


  • AKM Andersson, 2013, ‘Choices, Interests, and Potentiality: What Distinguishes Bearers of Rights?’ in The Journal of Value Inquiry, Volume 47, Issue 3, pp 175-190
  • Cf. M. H. Kramer, 2010, ‘Refining the Interest Theory of Rights’, in The American Journal of Jurisprudence, vol. 55
  • Universal Declaration of Human Rights, 1948

One thought on “The Role of Rights in the Abortion Debate

  1. I have some comments and criticisms of your argument:

    Answering the question “who gets rights?”, you say “all adults able to make reflective choices about their lives based on their interests should be considered rights-bearers”, and then extend that to any being with potential to reach such a state, e.g. comatose people, foetuses, etc.

    My major concern with this response to the question is that it seems to exclude certain persons/beings which we should agree have rights. It depends on what you think qualifies as “ability to make reflective choices about their lives based on their interests”. But it seems to me that your definition may exclude A) some persons with serious mental disabilities and B) some animals with fairly advanced cognitive systems e.g. dolphins.

    Regarding A, you might say that such persons have potential to be cured of their disability, thus giving them rights. But say we were given certain knowledge that a particular disabled person would never overcome their disability, I would still say they have rights.

    To try to persuade you this is the better approach I would ask you to consider this: in your argument you rely on the premise that the right to life in most cases trumps the right to liberty. Does this not strongly suggest that you yourself are committed to the thesis that a life without liberty is still worth living, i.e. liberty/ability to make reflective choices is just one of the various features which makes a life valuable? I suggest that a person with severe mental disabilities who lacked ability to make reflective choices can still have highly important life qualities, e.g. a positive emotional relationship with another person.


    A second problem with your argument is that including things which have the mere potential for sentient life in the spectrum of rights/morality has some strange implications: if foetuses have rights, why shouldn’t individual sperm cells and egg cells have rights too? And if so, shouldn’t male masturbation, which basically ensures that thousands of sperm cells will never become living, be made illegal too? What about the use of contraception?

    I also have doubts about your argument that abortion should be made illegal.
    You write that, just as the institution of giving a free and fair trial to people accused of crimes is a fundamental right, and should be maintained even if the expected consequences of maintaining it look bad. However, in the case of the right to a free and fair trial, there is a plausible story to be told about how, in the long run, maintaining that right will have good consequences for society. For example, we can talk about how there is a tendency to make mistakes when judging in criminal cases, and that without free trials the number of wrongful convictions would increase. The condemnation of many innocents would be likely to seriously harm society directly and indirectly; it could lead people to constantly fear that they will be persecuted for no good reason next.

    Absent a plausible story for why making abortion illegal would have good practical consequences, resorting to asserting the moral importance of rights is essentially dogmatic. Why is this right so important exactly? If you are proposing to criminalize an action which is overwhelmingly carried out by women in very vulnerable situations and punish them for doing it, making their position even worse, I think there needs to be quite a convincing story. (Saying that consequences are important for evaluating a moral position does not commit one to consequentialism, the view that consequences are the be all and end all when it comes to evaluating a moral position).

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