The leaking of a document coming before the Supreme Court in the USA has re-ignited the abortion debate. The views involved are often expressed with such fervour and conviction that 'ignited' might turn out to be an apt word. I do not intend to argue for a specific point of view – indeed, according to some women, men have no right to express an opinion. Rather, I want to examine the logic of some of the arguments. My right to do this is part of my job description.
But simply to examine arguments is to be open to another accusation: sitting on the fence. All I can reply is that you can see both camps better if you are sitting on the fence. In one camp, it is easy to see the banner flying with the right to choose, so I'll begin with that.
It will be said that what is chosen concerns a woman's body and we all (even men) have a right to determine what happens to our own body. But that is not quite correct. For example, another controversial issue concerns the right to choose assistance in committing suicide – something that affects our bodies even more fundamentally than abortion. At the moment, there is no such right.
Moreover, according to the law and medical ethics, we do not have a right to choose whatever treatments we want (at least in the UK). For example, some treatments might be too expensive or too risky. We can choose among the treatments we are offered and we can choose to refuse what is offered. So the 'right to choose' for men and women is not completely unqualified.
No doubt, it will be replied, but a termination of pregnancy does not fit into these categories. It is not risky from a medical perspective (although there may be long-term psychological consequences) and it is not expensive (although it is much more expensive than contraception).
What kind of right is the right to choose a termination of pregnancy? Some women claim that it is a human right. From the time of the UN Declaration (1946), human rights have multiplied and include rights to holidays with pay, unemployment benefits, etc. My point is not to argue for or against such alleged human rights but only to note that such rights are very different from those envisaged by writers on natural rights in earlier centuries.
It could be argued that we have a more developed sense of human nature and its rights than our predecessors, but it could also be argued that we have trivialised the language of human rights. If every claim becomes a human right, then the language of human rights is degraded. Those supporting the idea of a human right to a termination will argue that a termination is anything but trivial and that it is our more developed sense of human nature which puts that right into the category of a human right.
But more needs to be said about rights because the vocabulary of rights extends far beyond that of human rights. For example, rights can refer to powers – a policeman has a right to stop traffic but the rest of us don't. They can refer to privileges – the master of the college has a right to walk on the college lawn but tourists don't. They can refer to exemptions – people with certain medical conditions have rights which the rest of us don't.
The two most common uses of rights terminology involve rights as freedoms to do or forbear, and rights as claims against one or more people. For example, I have a right to walk down the street whistling. That is a right as a freedom, meaning that no-one has a right or duty to stop me, at least for the reason that I am whistling. But if you have my ladder on loan, then I have a right or a claim against you for the return of the ladder and you have a reciprocal duty to return it.
What kind of right is the right to choose a termination? Clearly it is a reciprocal right. In other words, it is a right which requires someone else to recognise a duty to carry out what is required. The duty would presumably be that of an obstetrician and would also require support services. The right to choose a termination would therefore require an escape clause for anyone who did not recognise the right to choose termination and who therefore did not recognise the reciprocal duty. Any attempt to enforce such a duty might hit human rights problems.
There are serious medical conditions which might affect the health of the mother or the foetus. A majority of people (but by no means all) would support termination in such circumstances. But supporters of the woman's right to choose are usually concerned with a right to choose in any circumstance. But I have tried to show that a 'right to choose' from the moral and legal point of view is not open-ended; it can be qualified by assorted considerations.
My reflections on the 'right to choose' do not settle the abortion issue one way or the other but they do suggest that the moral issue cannot be settled simply by chanting 'a woman's right to choose'; complexities are hard to chant.
On the other side of the fence on which I am sitting, there is the 'pro-life' camp. The claim from that camp is that abortion is killing a human being, that from the moment of conception an unborn child exists. But that is obviously not correct in terms of what we mean by a 'child' or even a 'baby'. What is correct is that what exists at conception is a fertilised egg that has the complete genetic material of the adult. It can therefore be considered a potential adult, even a potential specific adult. This scientific fact can then be developed into the argument that the potential adult can be vested with the right to be allowed and assisted to develop that potentiality.
But there are weaknesses in potentiality arguments of that kind. Firstly, it does not follow from the fact that something is potentially an X that it should be encouraged or assisted to become an X. An acorn is potentially an oak, but not every acorn should be encouraged or assisted to become an oak.
Secondly, in the weak sense in which a fertilised egg is potentially a child, an unfertilised egg is potentially a fertilised egg. In each case, the potentiality will be realised only if a large number of other events which might or might not take place do take place. For example, the potentiality of an unfertilised egg is realised only if a male fertilises it. But there is no duty on males to do so. In a similar way, there is no duty to enable or assist the fertilised egg to realise its potentiality as a baby, although this is what the majority of mothers would want.
Thirdly, it does not follow from the fact that something is potentially an X that we should treat it as if it were now an X. We are all potentially dead, but please don't treat us as if we were now dead. Thus, the fact (if it is one) that a fertilised egg is potentially a child does not give grounds for investing the egg with the rights of a child.
To argue as I have done is by no means to say that human genetic material has no moral significance. The way forward, as often in philosophy, may be to change the question. I have been considering the question of whether the fertilised egg has moral significance because of its potentiality. A better question might be: How much moral significance does it have?
In answering the new question, we can assume there is a continuance of development from conception and that our moral attitudes should be moulded by the stage of development. In recognition of this, the Warnock Committee decided in 1985 that experiments should be carried out only by properly licensed bodies and only during the first 14 days. After 14 days the nervous system develops, and later what has become known as 'quickening' takes place, to the joy of the mother to be. Liberal debate usually centres on the circumstances, if any, in which termination should be allowed before this date and whether it should ever be allowed after it.
I appreciate that there are other arguments for and against abortion and that my arguments about rights and potential persons will not really settle the question. But I have tried to show that complexities emerge when we examine slogans.
Robin Downie is Emeritus Professor of Moral Philosophy at the University of Glasgow
