Competing Rights

The right to not be killed supersedes the right to not be pregnant.

Politically speaking, abortion is an issue that involves competing rights. On the one hand, you have the mother’s right not to be pregnant. On the other hand, you have the baby’s right not to be killed. The question that must be answered is this. Which right is more fundamental? Which right has a greater claim? Abortion advocates argue that outlawing abortion would, in essence, elevate the rights of the unborn over and above those of the mother. “How can you make a foetus more important than a grown woman?” they might ask. In reality, outlawing abortion wouldn’t be giving unborn children more rights, it would simply gain for them the one most fundamental right that no one can live without, the right to life.

If a baby is not to be aborted, then the pregnant mother must remain pregnant. This will also require of her sickness, fatigue, reduced mobility, an enlarged body, and a new wardrobe. Fortunately, it is not a permanent condition. On the flip side, for a pregnant woman not to be pregnant, her child must be killed (unless she is past her 21st week of pregnancy, in which case the baby may well survive outside the womb). Abortion costs the unborn child his or her very life and it is a thoroughly permanent condition. This is what’s at stake, both for the child and for the mother. It is not an issue of who is more important, but rather who has more on the line.

Any time the rights of two people stand in opposition to each other, the law exists to protect the more fundamental right. We see this all the time. For example, if a car is driving down a street while someone is crossing that street, the law requires the driver of the car to slow down and stop (giving up their right to drive where they want, when they want, and at what speed they want) so that the pedestrian may cross the street in front of him. Why? Why must the driver temporarily give up his right to drive down the street just because someone else is walking across the street? Why is the right of the man on foot upheld while the right of the man in the car is denied? It is not because the pedestrian is more valuable than the driver but rather because, if the driver doesn’t stop, the pedestrian will likely be killed. In order for the driver to proceed down the street at full speed, at that moment, it will cost the pedestrian his life. In order for the pedestrian to finish crossing the street, at that moment, it will cost the driver a few minutes of drive time. The autonomy of the driver must be temporarily suspended to protect the life of the pedestrian. Though a pregnant woman gives up far more than a few minutes of drive time, she gives up far less than the baby, who would otherwise be killed.

At a basic level, the driver/pedestrian example helps illustrate how the law should respond when the rights of individuals conflict with each other. Namely, the less fundamental rights must yield to the more fundamental rights. There are still those who maintain, however, that the mother’s right to not be pregnant, is more fundamental than her child’s right to not be killed.

In 1971, Judith Jarvis an American moral philosopher and abortion advocate, published what some call “the most widely reprinted essay in all of contemporary philosophy”. A Defence of Abortion concedes that foetuses should be recognized as persons under the law, but argues that “the right to life consists not in the right not to be killed, but rather in the right not to be killed unjustly”. Jarvis then offers her “violinist argument” as an example of a situation in which most people would recognize the moral justice in allowing an innocent human being to die.

The example goes something like this. A pregnant woman is comparable to someone who has been kidnapped in her sleep by a fictitious music lovers society, so that her kidneys can be used against her will to sustain the life of another person. The embryo or foetus is comparable to a world-famous violinist, who is unconscious, who suffers from a fatal kidney ailment, and whose life can be sustained only by being “plugged in” to the kidnapped woman. Pregnancy is comparable to the nine months in which the music lovers society is forcing this woman to remain in bed, plugged into the violinist, until he is sufficiently recovered to survive on his own.

What’s the point of this rather bizarre analogy (besides putting us on our guard against the dangers of predatory music societies)? The point is to show that if it’s reasonable for a kidnapped woman to prevent an unconscious, violinist from using her kidneys, then it must be equally reasonable for a woman to end her pregnancy through abortion. Jarvis is arguing that even though the embryo or foetus is a living human being, it may be justly killed because it is “using” its mother’s body against her will (just as the world-famous violinist did). Here are some of the more obvious problems with her logic:

  • We can assume that most abortions in South Africa are performed on women who chose to have sexual intercourse. Since pregnancy is a frequent, natural result of sex, these women cannot be compared to someone who is kidnapped in their sleep. They engaged in a behaviour that naturally results in pregnancy. To date, there are no behaviours that naturally lead to being kidnapped in your sleep and connected to an unconscious, world-famous musician.
  • The relationship between a pregnant woman and the embryo or foetus in her womb is a mother/child relationship. It is not a relationship between strangers, as Jarvis makes out. Parents have a natural obligation to care for the their children. This is by no means unreasonable or extraordinary.
  • It is only in rare cases that pregnancy confines a woman perennially to her bed. The inconvenience to someone who is kidnapped and forced to stay in bed for nine months far exceeds the inconvenience of a normal pregnancy.
  • Finally, abortion is not just letting an innocent person die, or taking them off of life support. Abortion is an active, violent form of killing. This is an admittedly less substantial objection than the others (since abortion would be objectionable even if the embryo or foetus were simply removed from the womb, alive, and then left to die). Nevertheless, the ethics of Jarvis’ argument would be dramatically complicated if the violinist had to first be dismembered in order to be successfully removed. How many people could actually go with removing the violinist, if they had to first cut his body to pieces?!

The demands of pregnancy are real and significant, but they are temporary; they are on behalf of a helpless child, and they are perfectly natural. Moral philosophers can scheme to their hearts content, but it doesn’t change the fact that abortion permanently takes away the most fundamental right of an innocent human being. And we’re not talking about a disconnected stranger who has trespassed against the woman. We’re talking about her very own child, a child who does not trespass to live and grow in her womb.

Content adapted from Used with permission.