The leaked US Supreme Court draft decision in Dobbs v Jackson Women’s Health Organization does not outlaw the practice of abortion, but overturns the finding in Roe v Wade, which holds that a woman has a constitutionally protected right to abortion. The removal of this constitutional protection will allow states to outlaw the practice. Thirteen states have already passed trigger laws, indicating that they will do so if the draft ruling is confirmed.Joe Biden’s reaction has been typical of the pro-choice side. For Biden, a woman’s “fundamental” right to an abortion derives from her right to “bodily autonomy.” But what is the right to bodily autonomy and why do we have it?
Bodily autonomy is defined as the right to “make decisions about one’s own life and future.” Allowing states to ban abortion would seem to be a straightforward violation of that right. However, no citizen can have an absolute right to act upon any decisions she (or he) makes about her life and future, since such decisions may impact another person’s freedom (e.g., in the case of someone who decides to become a murderer).
Amnesty International defines bodily autonomy more narrowly as the ability to “make our own decisions about our health, body and sexual life.” But here too, the right is restricted in practice. A 2010 ruling by the Connecticut Superior Court found that a prisoner on hunger strike can be force-fed: his bodily autonomy is overridden by the authorities. Many states require visitors to have a number of vaccinations before they are allowed entry. During the pandemic, several countries announced proposals for mandatory vaccination, either for the population as a whole or for specific sectors of the workforce. These plans were rescinded because the measures were deemed unnecessary for public health—not because they were seen as an unjustified breach of civil rights.
In such cases, the state must balance the interests of the individual against the interests of another person or persons. This is at the heart of much of the abortion debate, too. If the mother has rights, does the foetus have rights too? And if so, when are they acquired? Some believe that life begins at conception, and rights accrue at that point. Abortion can, therefore, be outlawed because the mother’s right to bodily autonomy is trumped by the foetus’ right to life. Others—often citing the Bible—argue that life, and therefore rights, begin at the first breath. Because a foetus has yet to breathe, it is not a living human, and thus has no rights that could conflict with its mother’s.
There is no consensus on this and attempts to derive an answer often have troubling implications. For example, if we argue that a foetus has no rights because it cannot support itself, the same argument could be made about newborns and especially about babies with certain degenerative or developmental disorders. In addition, foetal viability will tend to increase as medical advances allow more children to survive increasingly premature births.
Underlying all these arguments is the assumption that some rights accrue to humans merely because they are human. But why is this?
In the Middle Ages, the Dominican friar Bartolomé de las Casas argued that the residents of Spain’s New World colonies should be granted rights, writing in In Defence of the Indians, “Christ wanted love to be called his sole commandment. This we owe to all men. Nobody is excepted.” His recommendations were enshrined in the 1512 Law of Burgos, which forbade the maltreatment of indigenous peoples. However, it is in the work of John Locke that the concept is first fully developed. Locke argues that God grants all individuals inalienable rights to “life, liberty and property”—an idea echoed in the US Declaration of Independence. Supporters of abortion cite the right to liberty, opponents the foetus’ right to life.
However, Locke was clear that these rights derived from a divine source. In a secular society, we need to locate them elsewhere. Tom Holland argues that, for the French revolutionaries and American founding fathers, “These [human rights] … existed naturally within the fabric of things, and had always done so, transcending space and time … quite as fantastical a belief as anything found in the Bible.” But is Holland right?
Human rights apply exclusively to humans—we do not posit a right to liberty for cows—so there must be something about our species that means that we have rights, while other animals do not. But—as I have written elsewhere in this magazine—the scientific discoveries of the past two centuries have diminished our faith in human exceptionalism. It is increasingly difficult to point to a unique feature of Homo sapiens. Bottle-nose dolphins, for example, can pass tests of consciousness that children under eighteen months fail. As Bertrand Russell puts it, “An adherent of evolution will maintain that … the rights of man must be condemned as unbiological since it makes [sic] too emphatic a distinction between men and other animals.”
Scepticism about human rights can be traced back at least to Edmund Burke, who describes them as “vague, speculative”: “What is the use of discussing a man’s abstract right to food or medicine? The question is upon the method of procuring and administering them.” Jeremy Bentham argues that there are “no rights anterior to the law” and that the notion of natural human rights is “nonsense on stilts.” Former British Supreme Court judge Lord Sumption has argued that the only essential rights are those that facilitate a functioning society, such as freedom from arbitrary detention, and those vital to the functioning of democracy, such as freedom of assembly. Similarly to Burke, Nigel Biggar argues for a reduced focus on natural rights and a greater focus on legal rights, which can be defined more precisely than the more nebulous concept of human rights.
If rights derive solely from the law, what does this tell us about the proposed change to abortion law? On this understanding, the change would not violate a right, but remove it. Any subsequent legislation by the states would not violate a woman’s right to an abortion because that right would no longer exist. In this view, rights are what the law says they are, and nothing more. There is no extra-legal category that we can apply. The leaked judgement in Dobbs v Jackson simply overturns a previous ruling. As Britain’s Lord Nicholls writes, “For centuries, judges have been charged with the responsibility of keeping this law abreast of current social conditions and expectations … the law was one thing yesterday and another tomorrow.” If rights derive purely from the law, and the law can change, then rights must change too.
In its proposed judgement in Dobbs v Jackson, the Supreme Court, whose role is restricted to discerning rights in the Constitution, is considering is treating abortion as a Benthamite right—derived from the law alone—rather than a Lockean one—a right inherent to being human—while the pro-choice lobby takes the opposite approach. If, however, we do not accept that abortion is a right, that does not imply that abortion is wrong. There are many things that people are permitted to do, without having an explicit right to do them—the European Convention on Human Rights, for example, contains no right to work, but most adults subject to it have jobs. If the court decides to overturn Roe v Wade, the pro-choice lobby will have to persuade the pro-life states that abortion should be one of those things.