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Abortion, Abandonment, and Positive Rights: The Limits of Compulsory Altruism*

  • Roderick T. Long

Extract

We began with three propositions: that people have a right not to be treated as mere means to the ends of others, that a woman who voluntarily becomes pregnant nevertheless has the right to an abortion, and that a woman who voluntarily gives birth does not have a right to abandon her child until she finds a substitute caretaker. These propositions initially seemed inconsistent, for the prohibition on treating others as mere means appeared to rule out the possibility of positive rights, thus making it impossible to countenance the right to abort or the right not to be abandoned (both of which, it was argued, are positive in form).

But we have seen that the prohibition on treating people as mere means to the ends of others is best understood as ruling out basic positive rights while permitting derivative ones. Since a willing mother is responsible for bringing her child into the world in the first place, she cannot abandon it without violating its negative right not to be killed, and so such a child has a derivative positive right not to be abandoned. A pregnant woman, on the other hand, has a negative right not to have her body invaded, and from this negative right derives a positive right to abort her fetus, so long as doing so is not disproportionate to the seriousness of the threat (as it is not in the case of involuntary pregnancy, or of pregnancy which has become involuntary). Therefore, far from being in conflict, propositions (1), (2), and (3) have been shown to be in harmony with one another, the latter two being plausibly grounded in the first. Insofar as we have reason to accept (1), then, we have reason to accept (2) and (3). Moreover, we have seen that a proper understanding of (1) allows us to embed (2) and (3) in a larger moral perspective in which the limits of compulsory altruism are firmly drawn: enforceable rights to the use or assistance of others may be allowed into the moral domain only if they are “sponsored” by some negative right. Every putative positive right must find such a sponsor, or perish.

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1 I take (1) to make a narrower claim than (1*): “Every person has the right to be treated as an end in him or herself.” Proposition (1*) seems to require taking positive action on behalf of the rights-holder, in a way that (1) does not.

2 Am I arguing for the truth of these three propositions, or merely for their compatibility? Somewhere in between, actually. I shall not argue for the truth of (1), but I take it to be a plausible moral principle; and I shall argue that that principle, together with what I take to be plausible moral assumptions, yields (2) and (3) as consequences.

3 Discussions of rights sometimes founder on a failure to distinguish these varieties from one another. When Marthe's mother claims a right to Marthe's gratitude, she is presumably claiming an AB-right but not a Oright; Marthe ought to be grateful to her mother, but it would be illegitimate to enforce such gratitude at gunpoint. On the other hand, when Hector's friends tell him that he has no right to complain about the restaurant since he's the one who insisted they come there, they are denying him an A-right, but as First Amendment devotees they would no doubt grant Hector's BC-right to complain. Yet again, when Hobbes argues (Leviathan, part I, ch. 14) that in the state of nature everyone has an equal right to everything, he is asserting an AC-right, not a B-right. And so on. (In particular, discussions of abortion often fail to make clear whether it is A-rights or BC-rights that are at issue.) Traditional distinctions between perfect and imperfect rights, or between liberty-rights and claim-rights, capture some of the relevant distinctions, but not, I think, all of them.

4 That is, a just political system would refrain from violating these rights itself, and also protect its citizens from having these rights violated by others. In calling these rights “political rights,” I do not mean to suggest that their existence depends on or is an artifact of political institutions or conventions. I mean only that these are the sorts of rights with which a legal system might properly be concerned, whereas the right to gratitude, say, is not.

5 That is, political rights are at least BC-rights. A different issue is whether all BC-rights are also ABC-rights. On a liberal conception of politics, the answer will be no, since legal protection for some morally impermissible actions has a basis in one of the central tenets of liberalism, that political institutions should be neutral (at least in a broad range of cases) among their citizenś competing conceptions of the good. (It does not follow that this liberal neutrality may not itself be founded on a particular conception of the good.) But the liberal doctrine of institutional neutrality is often challenged; for example, a popular slogan among supporters of Pat Robertson's 1988 presidential campaign was: “People should only have a right to do what is right.” For the purposes of this essay I shall leave it an open question whether BC-rights must also be ABC-rights—though proposition (1) does seem to favor a reply in the negative.

6 I here ignore a possible complication, which is that it may be legitimate for some people, but not for others, to enforce the obligation in question. (In particular, the person to whom the obligation is owed might conceivably have different rights of enforcement from those enjoyed by third parties.)

7 The lack of such specification can lead to seriously ambiguous rights-claims. For example, is the right to life the right not to be killed? Or the right to be provided with the necessary means of survival? Or the right to be brought into existence? Is the right to work the right to guaranteed employment, or merely the right not to be interfered with in seeking a job? And interfered with how? And so on.

8 I am treating rights as all-things-considered rights rather that as prima facie rights. It follows that, on this understanding, conflicts of rights (that is, of DC-rights) can never occur. It may well be that this would justify placing some qualification or exception clause on (1).

9 For the purposes of this essay I shall assume without argument that a principled distinction can be drawn between doing and allowing (e.g., between killing and letting die).

10 I will be appealing to intuitions a lot. My epistemologist says that's okay.

11 The suggested claim is not that people never have positive obligations to act on behalf of others, or to let themselves be used by others; the claim is rather that such obligations, if they exist, are not legitimately enforceable. On this view, there may be positive B-rights, but no positive BC-rights. Positive rights are sometimes rejected, not because they violate (1), but because they are allegedly nonuniversalizable; but Melnyk, Andrew, “Is There A Formal Argument Against Positive Rights?Philosophical Studies, vol. 55 (1989), pp. 205–9, has argued persuasively against that view.

12 By “means” I shall henceforth mean “means to the ends of others.” I leave open the question of whether it is possible to treat someone as a means to his own ends without his consent. If so, then (1) appears to permit paternalism; if not, then it doesn't. I should think that the intuition behind (1) at least creates a serious presumption against paternalism, but I shall not argue for that claim here.

13 One might deny that running someone over counts as a violation of (1), since in running you over I may not be using you as a means (mere or nonmere) to any further end; I may simply be trying to drive through the space you are standing on, and killing you is not a means to, but rather a byproduct of, my pursuit of that goal—a foreseen but not intended consequence. This is true enough if the notion of “using as a mere means” is understood very narrowly; but surely I am forcibly subjecting or subordinating you to my ends, and that is what I take to be the central point of the notion.

14 The notion of “use” needs to be clarified somewhat. Suppose Professor Kant is so regular in his daily walks that the townspeople set their watches by him. Are the townspeople using Kant as a means (with or without his consent) to their own ends? Does their action lie within Kant's boundary? Surely not. The townspeople are not doing anything to Kant; they simply accept, and make use of, the information that he distributes gratis. (Recall the fable of the rich man who tried to sue his poor neighbor for enjoying the smells that emanated from the rich man's kitchen.) Using another person must involve subjecting him to one's ends, in a way that the Kant case does not. (See previous note.)

15 I take it that threatening to invade someone's boundary is itself an invasion of that person's boundary (since in announcing my intention of using you as a means I am already treating you as the sort of thing it is legitimate to use as a means). Therefore, the right to forestall a threatened invasion would follow from the right to end an actual one.

16 By “disproportionate” I mean, of course, disproportionate on the side of excess, not of deficiency.

17 These definitions entail that any use to which the used person consents is not a case of being used as a mere means. This follows from (1), since if it were a violation of my rights for you to cross my boundary even with my consent, then you would have an enforceable obligation not to cross my boundary even with my consent, which means that it would be legitimate to force you not to cross my boundary even with my consent, which in turn means—by definition (17)—that it would be legitimate to violate your boundary; and (1) prohibits boundary-violations if it prohibits anything. This does not entail, however, that all noninvasive boundary-crossings are morally permissible.

18 Proposition (20) is probably not true without exception as it stands. I am not so extreme a rights fanatic as to deny that minor boundary-violations may occasionally be morally permissible in order to prevent some great evil. But I do not think this qualification affects the central arguments of my essay.

19 I leave aside the question of whether there are property rights, and if so, what their foundation might be. If, as Aristotle, Locke, Hegel, and Marx thought (in very different ways), one's property is in some sense an extension of oneself, then (1) will entail the existence of property rights. (For a recent defense of such a view, see Wheeler, Samuel C. III, “Natural Property Rights as Body Rights,” Noûs, vol. 16 [1980], pp. 171–93.) But much more remains to be said.

20 Such a view of property rights has an unlikely source in Locke; see his First Treatise of Government, ch. 4, section 42, where welfare rights are treated as derivative positive property rights licensed by something like (1).

21 It might be objected that (I)'s ban on basic positive rights is toothless, since the case of welfare rights suggests that all basic positive rights can be rewritten as derivative positive rights. But that is a mistake. In order for a positive right to be admitted as derivative and so permissible, it must be possible to identify a specific negative right from which the putative positive right is supposed to arise; and there is no guarantee that such a negative right can be found in every case. From what negative right, for example, could a positive right to health care derive? (I am speaking not of a right to be enabled to purchase health care—as in Medicare, etc.—but of an actual right against some doctor that he or she expend labor in treating the patient—as in the alleged right, defended by J. S. Mill in the penultimate paragraph of Utilitarianism, to “kidnap, and compel to officiate, the only qualified medical practitioner” in order to save a life.)

22 Proposition (3) leaves open the question of how much the mother must do to secure such a caretaker. Must she locate a willing and suitable guardian? Or may she simply leave the infant in a shopping mall, confident that someone will take care of it? It is not my aim in this essay to determine precisely the most that others may ask of her (that is, the most that others may enforce; the mother's unenforceable obligations may well extend beyond her enforceable ones). The point of (3) is to set at least some lower limits: the mother may not, for example, abandon her infant in a deserted area, or dispose of it in a dumpster.

23 I do not see any way of generating an enforceable obligation not to abandon a child if that child was born against the mother's will. An unwilling mother might well have an obligation to care for the child until a substitute caretaker could be found, but that obligation could not be enforced without violating (1) or (20).

24 a. Aristotle, Physics, II.3.195all–14.

25 It may seem odd to speak of “voluntarily giving birth,” when the actual biological process of birth proceeds independently of the mother's will. But it is clear enough what is meant: if the mother wants to give birth, and has deliberately chosen to do so, in the face of opportunities to terminate her pregnancy, then she gives birth voluntarily. The same remarks apply to voluntary conception. (One can likewise be struck by lightning voluntarily, if one deliberately stays on the roof during a storm, holding up a pitchfork in the hope of getting hit.)

26 I leave aside the question of what responsibilities the father might have to assist her in fulfilling this obligation.

27 As will be obvious, my treatment of the abortion issue is greatly indebted to Thomson, Judith Jarvis, “A Defense of Abortion,” Philosophy and Public Affairs, vol. 1 (1971), pp. 4766.

28 It might be claimed that an early fetus is a person because, as a potential person, it has psychological capacities; it just cannot exercise them yet. But this is to confuse remote with proximate potentialities. Suppose that Pierre is a Francophone, and Zeke is not. Yet Zeke is capable of learning French; Zeke is a potential Francophone. So both Pierre and Zeke have the potentiality to speak French; but that does not make them both Francophones. Pierre's potentiality to speak French is proximate, while Zeke's is merely remote. Being a Francophone is defined in terms of the proximate potentiality to speak French, so Pierre is a Francophone while Zeke is not. So even if an early fetus has remote psychological capacities, it is not thereby a person, since being a person is defined in terms of (more) proximate psychological capacities.

29 Aquinas, following Aristotle, regarded the soul as the form of the body, and denied that a fetus could become ensouled until its matter had been sufficiently worked up to enable it to be informed by a human soul; accordingly, he did not regard early abortion as murder. Late abortion was another matter. (See On the Sentences, IV.31.2; On the Politics, VII.12; Summa of neology, II.II.64.8.2.)

30 While a non-Francophone could become a Francophone, no nonperson could become a person.

31 Since I am ultimately going to argue that all abortions are justified, I do not need to worry about fixing the precise temporal cutoff between early and late.

32 Since killing a person with that person's consent is only a boundary-crossing, not a boundary-invasion, such a killing presumably does not violate (20).

33 I am not arguing that abortion is morally permissible, but only that a woman has a BC-right to abortion. The view I am defending is thus compatible with any of the following three positions:

(a) A woman has a moral obligation to let an unwanted fetus use her body as an incubator, but it would be illegitimate to enforce that obligation. (I take this to be the position of a majority of the American public.)

(b) A woman has no moral obligation to let an unwanted fetus use her body as an incubator, but it would be morally praiseworthy (albeit supererogatory) for her to do so. (This is Thomson's position.)

(c) Not only has a woman no moral obligation to let an unwanted fetus use her body as an incubator, but she actually has an obligation (an unenforceable one, of course) not to saddle herself with the physical and psychological burden of an undesired pregnancy and childbirth—an obligation stemming from her duty to care for herself and to make the most of her life. (This is the position to which I incline.)

34 Self-defense is a derivative positive right; my positive right to fight off a mugger derives from my negative right not to be attacked by him in the first place.

35 For this style of argument, see Wilcox, John T., “Nature as Demonic in Thomson's Defense of Abortion,” New Scholasticism, vol. 63 (1989), pp. 463–84. Since Wilcox's conception of the “natural” is avowedly statistical (rather than, say, teleological), it is difficult to see how it can bear the normative weight with which he wants to invest it.

36 What makes the difference between voluntary and involuntary pregnancies? Pregnancies that result from rape are dearly involuntary; but pregnancies that result from failed contraception are a more difficult case. Proponents of the right to abortion usually argue that pregnancies that result from failed contraception are clearly involuntary, since steps were taken to avoid them. (Thomson, Recall's “people seeds” example in “A Defense of Abortion.”) On the other hand, opponents of the right to abortion usually argue that such pregnancies are voluntary, so long as intercourse was engaged in with full knowledge of the risk (just as actions performed under the influence of an intoxicant are voluntary if the intoxicant was taken voluntarily with full knowledge of the possible results; see Aristotle, Nicomadiean Ethics, III.5.1113b21–1114a21). Until recently, I was extremely suspicious of the latter argument; it struck me as analogous to the claim that a rape victim was “asking for it” by walking in a high-crime neighborhood or going on a date. But I have been made somewhat less confident by Wilcox's observation that if (as I believe) fathers have responsibilities with regard to pregnancies that they cause, even when those pregnancies are the result of failed contraception, then such pregnancies cannot be treated as mere bolts from the blue. It seems that fathers could have such responsibilities only if engaging in intercourse with knowledge of the risks somehow made even pregnancies resulting from failed contraception voluntary in Aristotle's broad sense. And if they are voluntary for the father, are they not voluntary for the mother? I need not decide this issue, however, since I shall argue that pregnancies may be terminated whether or not they were (initially) voluntary.

37 It may be objected that, in the context of the overt and covert pressures and attitudes of a male-dominated society, no act of heterosexual intercourse is fully voluntary on the woman's part, and so no pregnancy resulting from such intercourse could be voluntary either. I think this objection, while insightful, is overstated, and slights women's capacity to achieve and express genuine autonomy even in the face of an adverse social climate; but for those who accept this objection, it still makes sense to ask whether abortion would be justified in a society that was not male-dominated, and my discussion may be taken as relevant to that question at least.

38 To borrow an example that I believe I heard in a lecture by Claudia Card: If I start to eat a meal and then change my mind halfway through, you cannot use my original intention to eat the entire meal as an excuse to force the rest of the food down my throat.

39 Does this undermine the possibility of contractual obligation? No, but that is a long story which I cannot get into here. The short answer is that if I do not do what you paid me to do, I may not legitimately be forced to do so, but I do have a derivative positive obligation to give you back your money (plus, perhaps, another derivative positive obligation to compensate you for taking it under false pretenses). For useful discussion, see Barnett, Randy E., “Contract Remedies and Inalienable Rights,” Social Philosophy & Policy, vol. 4, no. 1 (1986), pp. 179202.

40 If killing Joshua were not necessary—if Miriam could remove him from her body without killing him—then she would, I think, be bound by (20) not to kill him. See Thomson, , “A Defense of Abortion,” p. 66.

41 In most cases anesthetic does not fully counteract the pain, and often cannot be administered early enough anyway.

42 “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

43 “The essence of rape isn't violence, but trespass.” Schulman, J. Neil, The Rainbow Cadenza: A Novel in Vistata Form (New York: Avon Books, 1986), p. 190.

44 I do not mean to imply that the fetus is a voluntary agent; Joshua may “use” Miriam's body in the same sense that a Venus' flytrap “uses” flies, mindlessly subjecting them to its ends. But nothing in the definition of boundary-violations requires them to be voluntary acts.

45 The frequently heard claim that women who have abortions are sacrificing human life merely for the sake of their own “convenience” overlooks the profoundly intrusive nature of the fetus's boundary-violation. Such remarks are on a par with the advice to rape victims to “lie back and enjoy it.”

46 If it is wrong to kill an innocent threat, it is difficult to see how the presence of evil thoughts in the threatening agent's head could suddenly make such a killing legitimate, given that nobody has rightful jurisdiction over the contents of another person's mind.

47 I leave aside the question of whether (20) also licenses the killing of innocent shields. For the distinction between innocent threats and innocent shields, see Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974), pp. 3435.

48 I would be willing to defend the stronger claim, but for the purposes of this essay the weaker claim will suffice.

49 It is true, of course, that a woman who deliberately hypnotized a man into attempting rape, and then killed him in self-defense, would be blameworthy for his death; but that is presumably because she violated his rights in the first place by voluntarily placing him in a situation where she would be justified in killing him. There is no analogous rights-violation in the pregnancy case; we surely do not violate a person's rights merely by bringing him or her into existence.

50 If Miriam were to voluntarily cut off or surgically remove some part of her body, she would then be able to alienate her right to that part (as organ donors do), since it would be possible to use the part without using Miriam. But as long as the part is organically attached to Miriam, she and it are a package deal, and her right over the part is inalienable. (One can never place oneself outside one's own boundary. Hence, the real problem with selling oneself into slavery is that such a contract is fraudulent; the seller offers something that cannot be delivered.)

51 For this objection, see Wilcox, , “Nature as Demonic”; and Beckwith, Francis J., “Rights, Filial Obligations, and Medical Risks,” American Philosophical Association Neivsletter on Philosophy and Medicine, vol. 89 (1990), pp. 8688.

52 Beckwith inexplicably calls these filial obligations. Surely a filial obligation is owed by a child to a parent, not the other way around.

53 One of these recesses is the mind of Alaska Senator Paul Fischer, who remarked in 1985: “I don't know how you can have a sexual act and call it forcible rape in a marriage situation.… I still believe in the old traditional bond of marriage.” Quoted in Okin, Susan Moller, Justice, Gender, and the Family (New York: Basic Books, 1989), p. 42n. Thank you for sharing that with us, Paul.

54 In ancient Athens every woman was assigned a kurios, a “boss”—either her husband or a male relative. Today, opponents of abortion may be viewed as assigning to the fetus the status of kurios.

55 One is reminded of Herbert Spencer's insightful remark that opponents of the full and equal rights of women are clinging to an evanescent form of the doctrine that women have no souls. See Spencer, Herbert, Social Statics: The Conditions Essential to Human Happiness Specified, and the First of Them Developed (New York: Robert Schalkenbach Foundation, 1970), p. 143.

56 Does this essay's stress on rights and individual autonomy, rather than on relationships of caring and connectedness, express an androcentric perspective inappropriate to the needs and concerns of women, and thus irrelevant to the abortion debate? (See Gilligan, Carol, In a Different Voice [Cambridge: Harvard University Press, 1982].) I hope not. To say that people have rights is simply to say that there are some things one should not be allowed to do to others; whoever grants the importance of that fact is committed to granting the importance of rights. Relationships of caring and connectedness are important as well; but if they are not to turn into a self-sacrificial trap, they must operate within a framework of rights. As for individual autonomy, it is precisely this that women have traditionally been denied, with devastating results. Women have been classified as objects, as resources, as property, and have been routinely subordinated to the will of others. A principle that grants every person the right not to be used as a mere means to the ends of others is a feminist principle if anything is. (For a defense of the importance of a “justice perspective” to feminist concerns, see Okin, , Justice, Gender, and the Family, p. 15, and indeed the entire book.)

57 Letter to Weightman, Roger C., 24 06 1826, in The American Enlightenment: The Shaping of the American Experiment and a Free Society, ed. Koch, Adrienne (New York: George Braziller, 1965), p. 372.

* An earlier version of this paper was presented to the Research Triangle Ethics Circle (Chapel Hill, North Carolina), whose participants provided useful and stimulating discussion. I am also grateful to David Schmidtz and Ellen Frankel Paul for helpful written comments.

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