In a previous post, three foundational questions in the debate about abortion were raised.
- Does a right to life even exist for anyone?
- If it does exist, how and when is the right to life conferred to an individual?
- Are there instances where a person’s choice has more value than another person’s right to their own life?
This post will seek to address the third question. The heart of the problem is the conflict between the right of a woman to control her own body and the right of a fetus to not be aborted. When examining conflicting rights, such as these, it is useful to consider Hohfeld’s analytical system. According to Hohfeld, all rights can be divided among four distinct classes (also call Hohfeldian incidents) that are described below.
- Claims—A has a claim that B x if and only if B has a duty to A to x.
- Liberties—A has the liberty to do x if and only if A has no duty to not do x.
- Powers—A has a power if and only if A has the ability within a set of rules to alter A’s own or another’s Hohfeldian incidents.
- Immunities—B has immunity if and only if A lacks the ability within a set of rules to alter B’s Hohfeldian incidents.
Many describe ‘claims’ as ‘claim-rights’ and ‘liberties’ as ‘privileges.’ Hohfeld further categorized these fundamental incidents into tables of opposites and correlatives. For example, if A possesses a power, then A does not possess a disability. However, if A possesses a power, then some other individual, B, possesses a liability.
With Hohfeld’s system, we now the conflict of woman and fetal rights discussed above, following the excellent work of Dr. William May. In this discussion we only need to concern ourselves with the first two Hohfeldian incidents: claims and liberties. There are three possible logical relations between two persons, A and B, and some incident, x.
- A has a claim that B should x if and only if B has a duty to A to x.
- B has a liberty (relative to A) to x if and only if A has no-claim that B should not x.
- B has a liberty (relative to A) to not x if and only if A has no-claim that B should x.
Notice that claims involve actions (i.e., the x) performed by the party other than the one possessing the claim. In contrast, the action is done by the person who possesses a liberty. For example, people claiming a right to smoke are really claiming a liberty to smoke (i.e., the smokers actually smoke) relative to other people. Fetal right to life involves action performed by another party (the mother) and, therefore, represents a claim. In the most fundamental sense, the right to life means a person should not be unjustifiably killed by another person. An abortion necessarily results in the killing of the fetus. Therefore, the corresponding Hohfeldian incident represented by the fetal right to life is,
The fetus (A) has a claim that the mother (B) should not abort him/her (x) if and only if the mother has a duty to the fetus to not abort him/her.
The right of a woman to control her own body is more nebulous because it shifts from circumstance to circumstance. A grown woman certainly has the right to not eat green beans for dinner if she desires to not eat them. In this context, the phrase means that a woman has sufficient autonomy over her body to enable her to abort her child should she so choose. Thus, the right of a woman to control her own body is actually a liberty in the Hohfeld system, for she is performing an action over her own body relative to the fetus.
The mother (B) has a liberty (relative to the fetus, A) to abort her child (x) if and only if the fetus has no-claim that the mother should not abort him/her.
We now clearly see that the crux of the issue is whether or not a fetus possesses the claim that the mother should not abort him/her. If the fetus has such a claim, then this claim will curtail the mother’s liberty to abort the child. This is an important observation because it significantly clarifies the conflict between the right to life of the fetus and the right of a woman to control her body into the single question of whether or not the fetus has a claim to not be aborted. If the fetus does not possess the claim to not be aborted, then the mother does in fact have the stated liberty.
To answer this question, we need to know if abortion satisfies the criterion of being a justifiable killing. It seems hard to think that it is. No one has such a strong sense of personal autonomy that it eclipses another person’s right to their life. This is because a person’s right to life flows from their ontology and is therefore inviolable. If the fetus does have a right to life (see this previous post for an argument), then the mother is duty bound to not abort the child.