The Right to Life Argument - Critiqued

In my last post, I explained that "right to life" anti-abortion arguments are fundamentally different from "sanctity of life" anti-abortion arguments. I also indicated that I think right to life arguments fail when applied to the early stages of fetal development. This post will defend that view (and only that view). Let me say this again for clarity - the only view the argument below seeks to defend is the view that right to life arguments fail, when they are applied to the early stages of fetal development. Other arguments may or may not justify the pro-life position regarding early stage fetal entities. I'm only commenting on the right to life argument.

So here goes.

The right to life argument rests on two premises. The first is the claim that human fetuses are rights bearing entities and, in particular, bearers of the right to life. The second is the claim that abortion violates a fetus' right to life by killing it without justification. The conclusion of this argument, derived from the first two premises, is that abortion should be illegal, because the right to life is morally fundamental and, in all but the most extreme circumstances, inviolable.

The argument seems pretty straight forward, but it involves largely unnoticed complexities. For one thing, it will be difficult to evaluate this argument unless we understand what it means for an entity to have a "right." Having at least a rudimentary understanding of "rights" will help clarify what the right to life requires of would be rights regarders.

A right, roughly speaking, is a claim that a rights bearer has against another entity, the rights regarder, that it act in a certain way towards the rights bearer.

For example, the right to free speech is a "negative" right. It is a claim that residents of our country (the rights bearers) have against our government (the rights regarder) that it not resort to force or threats of force to prevent us from expressing our opinions. It is called a "negative right" because it does not entitle us to be supplied with anything substantive - it only entitles us to be left alone and allowed to express our opinions freely.

The right to "remain silent," to the contrary, is a different kind of claim. It is what we call an immunity. The right to remain silent is a claim against our government (the rights regarder) that it not use its power to compel testimony from persons that it has accused of criminal conduct (the rights bearers).

The "right to an attorney" is, once again, a different kind of claim. It is a "substantive" claim - a claim against our government (the rights regarder) that it provide persons accused of crimes (the rights bearers) with legal counsel if they cannot afford to retain their own.

This is, of course, a very preliminary account of a right, but I think it is adequate for our purposes. A right, simply put, is a claim that one entity has against another to act in a certain way with respect to it.

However, not all legitimate claims can be considered rights. For a claim to rise to the level of a right, it must also be important enough to warrant social and/or legal enforcement. The claims protecting free speech, non-incrimination, and access to legal counsel have been deemed so important by our nation that our law imposes sanctions when our government fails and/or refuses to meet its obligations on these matters. That's what makes the claims rights.

Finally, rights are generally considered moral and/or legal "trumps." By that I mean rights, when invoked, are thought to trump consequential considerations in the way that any heart card trumps all other non-heart cards in the game of Hearts. The government may have a strong consequential interest in preventing the propagation of certain opinions, but once a speaker has invoked his right to speak freely, the right prevails.

Again, none of this is absolute. The law clearly restricts the exercise of recognized rights, including the right to speak freely, in various ways. I'm merely trying to explain the basic nature of a right and how rights work, while avoiding complexities that are irrelevant to the analysis of the right to life.

Now, based on this analysis of a right, it is clear (to me anyway) that the right to life is, at minimum, a morally defensible "negative" right. That is, the right to life is a morally defensible claim that everyone has against everyone else that they not kill you without justification. The right to life may also be a substantive right, e.g., a claim that you have against other entities that they provide you with what you need to stay alive. But that view is more controversial and not particularly relevant to the main issues regarding abortion.

The premise that we have a moral obligation to respect other peoples' rights to life is uncontroversial. It is equally uncontroversial that the law should enforce each person's right to life by enacting and enforcing criminal sanctions against those who would violate that right. Almost no one disputes either of these premises.

The controversy arises, as I indicated in a previous post, over the issue of when a fetus comes to possess the right to life. This is the crucial issue regarding the moral implications of the right to life argument.

If a fetus becomes a bearer of the right to life at conception (which, I have been told, is not actually a "moment," but a process taking up to 48 hours), the right to life argument justifies a blanket legal prohibition on abortion at all stages of fetal life. It would justify a prohibition in nearly all cases of pregnancy, including those originating from rape or incest. This is because the unfortunate circumstance of being a victim of rape and/or incest would not justify an exception to the prohibition, because rights are trumps, and the conceived embryo has a right to life, e.g., the right not to be killed without justification. The only legitimate exception to the prohibition would be the life and/or health of the mother. The life or health of the mother exception is akin to the self-defense justification, which is a recognized exception to homicide culpability.

On the other hand, if fetal entities do not come to posses a right to life until some later stage in their development, then the right to life argument does not justify legal prohibition of abortion prior to that point. Other arguments might justify a prohibition prior to that point, but the right to life argument will not. It cannot, because there is, by definition,no right that others must regard.

So, the key question is, when does the right to life arise?

My view, mirroring Dworkins' view, is that a necessary condition of being a rights bearer is being a "someone." It is not enough that a entity be alive - trees and grass are alive but lack rights. Nor is it sufficient that an entity be a "potential" someone. Potential students are not students and do not possess student rights. Potential voters are not voters and do not possess voter rights. Likewise, potential someones are not someones and, therefore, do not posses the rights that someones possess.

The "someone" standard also comports with our conviction that in order for a murder to occur, someone has to be killed. A murder requires a victim, e.g. a someone who loses their life. Without a victim, there can be no murder.

All of this means that the reach of the right to life argument depends on the reasonableness of calling a fetal entity a someone. Therefore, we need to figure out what we mean by "someone" and figure out when it is reasonable to think of fetal life as a someone.

I believe that to be a someone, an entity must possess, at minimum, some degree of mental life. I'm not saying that mental life is the entire definition of a someone. But I am saying that mental life is a necessary condition for being a someone. Grass, trees, individual cells, and worms are all living entities. But they are not, and never will be, someones. They do not possess mental lives. Conversely, as we ascend up the sentience scale within the animal kingdom, the claim that certain animals possess mental lives and self awareness, and thus rights, becomes increasingly plausible.

Mental life is foundational to what we mean by a "someone." A ghost with a mental life would be a someone. A corpse, to the contrary, is not a someone precisely because a dead body no longer contains mental life. When we refer to people who have died as "departed loved ones," we are referring back to the person we knew when they possessed their mental faculties. These illustrations convince me that the following proposition is correct: No mental life - no someone.

Human fetal entities develop mental lives at some stage during their gestation and long before a normal month nine delivery takes place. Some people claim that mental life appears as early as eight weeks. Others say it doesn't appear until much later, (up to the 23rd week on some accounts). To be honest, I really don't know exactly when mental life appears. I am confident, however, that no mental life is present at conception, and for a significant period of time thereafter. The no brain - no mental life premise is unassailable as far as I can tell. And this "no brain" circumstance of fetal life lasts for quite awhile after conception.

Therefore, from the foregoing analysis, I conclude as follows. The right to life argument is a decisive argument in favor of abortion prohibitions as soon as it is reasonable to think that mental life of some form is present in fetal entities. Its decisive in favor of prohibition despite the fact that I've only argued that mental life is a necessary condition of being a someone, because there's a good chance that mental life also a sufficient condition of being a someone, and this fact justifies prohibiting abortions). At that point they are (probably) someones and, therefore, entitled to the law's protection.

However, the right to life argument decisively fails to justify abortion prohibitions prior to the existence of mental life, for the reasons already given.

I leave it to the neurologists to tell us when mental life appears.

Joe H.

P.S. By the way, Dworkin makes many of these arguments in his book "Life's Dominion." Its a great work of moral philosophy and a relatively easy read.