Most pro-choice arguments beg the question concerning the status of the unborn, and thus are only good arguments if we already assume that the unborn are not human beings. But one argument – probably the most popular one – does not make this assumption. Instead, this argument holds that even if the unborn are human beings, abortion is justifiable because a woman has an absolute right to bodily autonomy. In this article I want to say why I don’t think this pro-choice argument is a good one. My attack will be double-pronged: firstly, the language of “moral rights” that appears in the argument is misleading; rights are legal constructs, not abstract moral entities, and secondly, there is no good reason to think the legal right to bodily autonomy should be absolute.
Firstly, then, what sort of thing actually is a right? The concept of rights is equivocal, and can be used with either a legal meaning or a moral one. Take the pro-choice claim that abortion is a fundamental right. What sort of language is this? There are two ways to construe the claim: (1) abortion is a legal right, or, (2) abortion is a moral right. If the pro-choice defender is talking of legal rights there would be no point in claiming abortion is a “right” in a State in which it is forbidden. That would simply be factually incorrect. Rather, what pro-choice advocates mean when they talk of “rights to bodily autonomy” or the “right to an abortion” is moral rights – things which exist independently of the State, and upon which the State should not infringe. But where does such a right come from if not from the State? Perhaps we are to take this as some sort of natural right that springs from our nature as human beings. But if so then it’s a right we possess simply in virtue of our being human, and thus from conception. This would lead to the rather odd outcome that an unborn human has a moral right to an abortion but not to life.
The idea of rights as abstract moral entities which all humans somehow naturally possess (or which somehow pop into existence once a certain level of biological complexity is reached) isn’t clearly a coherent one. Unless the right to an abortion is enshrined in law then it isn’t clearly a right at all. What the pro-choice advocate must do is to either provide and defend some plausible theory of “moral rights,” whereby humans have a right to an abortion but not to life (good luck with that!), or to present adequate reason why our law should provide such a legal right.
Since the law attempts to balance competing desires, wants, and needs, legal rights are rarely absolute. What then of rights to bodily autonomy? There is already an implied legal right to bodily autonomy. You are free to choose your job, your food, your sports, and much else besides. But should such a right be absolute, such that it trumps all other rights? Consider this thought-experiment, proposed by Dr Rich Poupard. A pregnant woman suffering from a chronic sickness insists on taking thalidomide to counteract her symptoms. Her doctor tells her of the high risks of horrible birth defects but still she insists on using thalidomide because her right to bodily autonomy is absolute, and thus the foetus has no rights whilst in her body. Her doctor refuses to provide thalidomide, but she manages to acquire it nonetheless, and as a result, her child is born without arms.
Alternatively, imagine a woman has just had a baby and is leaving the hospital to go home. She doesn’t want the baby and is planning on having it adopted. It’s a long drive and the weather is very cold. It soon begins to snow heavily, and the woman finds herself driving through a forest where her car breaks down. Spotting a wooden cabin, she makes her way over to it. She finds the cabin deserted, lights the fire, and sits down to wait out the storm. However, the baby is getting hungry, and the only way to feed it is with breast milk. But the woman has an absolute right to bodily autonomy and therefore she has no obligation to feed the baby at all. She lets the baby cry. Soon she hears a scraping noise at the door and discovers a small kitten that has got lost in the woods. She likes this kitten and decides to help it survive. Rather than feed her baby she decides to give her breast milk to the kitten. The baby dies, but at least the kitten survives.
If human beings have an absolute right to bodily autonomy, then these women will have acted perfectly legally, and yet there seems something very wrong here in thinking their actions morally excusable to the point of being legally permissible.
Regardless, many pro-choice defenders defiantly maintain that women should not be forced to use their bodies to sustain the life of another human being. I have no right to demand the use of my neighbour’s kidney should mine fail; and likewise, the unborn should have no legal right to use the body of the woman if she chooses to withhold her support.
But is it really the case that because we have no obligation to, say, provide a kidney to a neighbour that we shouldn’t have any legal obligation or duty towards our own offspring? There’s a shaky assumption here that a parent should have no more duty towards their own offspring than they do to a neighbour. Moreover, portraying abortion as the mere cutting off of life support or the refusal to donate an organ is quite incorrect. The baby in utero is killed through either dismemberment, poisoning, or crushing. (As an aside, there is controversy concerning the perception of pain by babies in utero, with the consensus being that babies can feel pain at least by the 3rd trimester, and arguably even earlier. Abortion practices in light of this growing evidence are nothing short of monstrous). So, even if withholding support is morally justified in some cases, actively killing is something else entirely. Suppose I come across a starving man in my house who will die unless I feed him. Now, suppose also I have no obligation to feed him. Should I be permitted to bludgeon him to death with a baseball bat?
The bodily rights argument succeeds if and only if the woman has an absolute right to bodily autonomy, allowing her to do what she wants with her body regardless of the impact on the unborn child. As shown earlier, that assumption is false on two fronts: (1) There are no moral rights, and (2) The legal right to bodily autonomy cannot rightly be absolute. Whilst a woman’s claim to bodily autonomy is important, it doesn’t supersede her obligation to the unborn child, which includes – at minimum – a level of care to ensure the child’s health and survival. Parents have sometimes burdensome responsibilities and obligations towards their offspring that make demands on their personal freedom. Such obligations are ours whether we consent or not. That’s why fathers have an obligation to pay support for children even if they never consented to raise them. It’s why parents are rightly prosecuted for abandoning children even if they no longer “consent” to raise them.
The fact of the matter is that when a woman is pregnant we are now dealing with two human beings, two bodies; not one. This is why the matter isn’t, contrary to popular pro-choice opinion, merely private. The law needs to balance the well-being of two humans, and since the legal right to life is as important as any other protection, it must (in most cases) be given preference over bodily autonomy. The legal right to bodily autonomy is not more important than the right to life, and thus whilst abortion may be permissible in some cases – such as where the life of a woman is at stake – it isn’t justified in any or all cases simply out of respect for bodily autonomy.
Stephen J. Graham