A while ago, in a post on abortion, I had a brief discussion with Jeremy Pierce about the distinction between rights and obligations. Since we are discussing abortion again, I thought now would be a good time to clarify what I mean by this distinction. I will also discuss briefly how this applies to the abortion debate.
First and foremost in this distinction is this: rights belong to the province of public or political morality, whereas obligations belong to the province of private or individual morality. Political morality has to do with the existence and nature of morally appropriate government, what it may and may not do, what people may do to one another, etc. Rights belong to this realm, because it is morally permissible, in terms of political morality, for you or your agent to enforce your (negative) rights against me. If I violate your negative rights, you or your agent (e.g., the government) may punish my transgression. Obligations do not belong to this realm, because it is not morally legitimate for you to force me to fulfill my moral obligations, even my moral obligations as regards you - with the exception, of course, of my obligation to respect your rights.
That paragraph might be a little opaque, so let's take a real example. I believe that the rich have a moral obligation to help the poor, but the poor do not have a right to the assistance of the rich. What this means is that if a rich person fails to use his wealth to help the poor, this is a moral imperfection, i.e., a sin. However, because the poor do not have a right to his assistance, they have no legitimate political grievance against him, and neither they nor the government may justly punish him for his immoral behavior, because this is a matter of personal morality. On the other hand, the poor have a right of self-ownership, which includes a right not to be forcibly enslaved by the rich. If the rich do enslave the poor - literally enslave them, and not merely "exploit" them in the Marxist sense - the rich not only act immorally, but transgress the rights of the poor, and therefore the poor or their agents may justly punish them.
Now, the situation begins to get sticky when individual morality and political morality cover the same area in seemingly contradictory ways. For instance, Christians are commanded to "turn the other cheek" to someone who assaults them (Matthew 5:39), but, according to my (libertarian) political theory, they have a right to exact punishment. What this means is that there is a case in which a person has a right to do something, but an obligation not to exercise that right. This is indeed a little sticky, as I said, but it is not terribly troubling. After all, it is easy to see other similar cases that are more straightforward. For instance, I have a right of free speech, but there are some things that it would be immoral for me to say. So there may be some cases where a person has a right, while at the same time has an obligation not to exercise that right, or perhaps not to enforce that right against those who violate it. No problem.
Now, as to abortion, like I said I just want to sketch how this distinction will apply to the debate, not develop a detailed account of the morality of abortion. I think it is absolutely indisputable that a couple who voluntarily and intentionally brings a child into being has a moral obligation to care for that child and bring it to healthy adulthood insofar as they are able, even from before it is born. I think that, while not as indisputable, this is equally true in cases where the couple did not intend to create a child, but nevertheless does so by engaging in consensual sex. In fact, I think it is probably the case that the parents of a child have such obligations in all cases, even rape and birth-control failure. However, in order to justify illegalizing abortion (or even exposure of infants!), it is not sufficient that the parents have such obligations; the baby must have a right to their care, or at least a right to the use of his mother's womb until birth, and this is difficult for libertarians, because this looks, on the face of it, like a positive right, which libertarians, including myself, don't believe in. In order to establish such a right, we would either have to say that the parents somehow took that obligation upon themselves voluntarily (which will be difficult to say in the case of failed birth control, and impossible to say of a woman who was raped), or that this is somehow, contrary to appearances, actually a negative right.
If we wish to take the second route, it may have profound consequences for our overall understanding of private property. For instance, we may say that if someone comes to be on your property through no fault of his own, expelling him from your property in such a way as to physically harm him constitutes an act of aggression against him, and therefore violates his (negative) rights. This will then also apply to the fetus's presence in the womb. This doesn't seem like a bad position for a libertarian to take overall, but I'm having trouble seeing clearly what, if any, are the ramifications for the case of, for instance, forcibly expelling a burglar from one's house. In this case, you are defending against an act of agression, and this makes our exercise of force acceptable. If the person didn't know he was trespassing, or something, he wouldn't be agressive, and therefore we couldn't expel him by force in such a way as to harm him. Sounds good to me. Interestingly, the Talmud (don't ask me for the exact citation, but I know I read this in Jewish Law class freshman year) says that when the mother's life is endangered, the fetus becomes an agressor, and describes in graphic terms cutting the fetus to pieces in the birth canal in order to save the mother's life, saying that this is not only permissible, but obligatory, but nevertheless prohibits abortion in the general case.
At any rate, my general point is this: if the parents have an obligation to the fetus to care for it, abortion will be immoral, but only if the fetus has a right to the care of the parents will the illegalization of abortion be legitimate. I do, in fact, think that the fetus has such a right, in addition to the parents' obligation, but I think that the right is much more difficult to establish than the obligation.
I am a regular reader of the New York Times, and I must admit that I often sympathize with the assertion of many conservatives that the Times is biased toward the Democratic party. However, I think this concern is much overstated. The Times routinely portrays both sides of issues on the Op-Ed page, and also in factual reporting. Biases of omission, or phrasings that seem to make value judgments rather than report fact, do occur and tend to occur in a decidedly liberal direction, but if there is real persistent bias in the Times, I would say that it has to do primarily with the persons they choose as representatives of various positions and people-groups. For instance, the Bush administration is taken to represent all conservatives (sometimes even all non-Democrats), Pat Robertson is taken to represent all Evangelicals (sometimes even all Christians), etc. When the debate on certain issues is represented as being between the Bush administration and a few leading Democrats in the Senate, without considering other positions, biases of omission that make both sides appear extremist and tend to motivate alarmist positions are a common result. What I want to point out here is a one-line comment about abortion in this article about the Alito hearings. After reporting some sensationalist remarks by Senator Durbin to the effect that Alito might become a decisive vote illegalizing abortion because of his statement some years ago that abortion was not consitutionally protected, the Times comments, "Overturning Roe would not make abortion illegal but would leave the question in the hands of states."
Now the staff editorialists of the Times are, I would say, even more vehemently anti-federalist than anti-Bush. I remember seeing a staff editorial during the Roberts hearings about how the increasing federalism of the Supreme Court could undermine all the functions that we have become used to the "national" (I hesitate to use the word "federal") government performing. However, this comment is very well placed, and brings about a very important question. Why is this outcome so unacceptable? After the re-election of President Bush, many liberals began to make sarcastic remarks about "blue states" seceding. If liberals are so opposed to living under the rule of the Republican leaders the majority of the nation elects, why is it that they are also opposed to limiting the power of those same leaders, and leaving decisions about these divisive issues on the state level? Everyone seems to see the abortion debate as centering around the Roe v. Wade decision and I don't understand it - Samuel Alito doesn't seem to either. Alito keeps saying that Roe was substantially modified, though also substantially upheld, by Planned Parenthood v. Casey. Furthermore, these decisions are about what the government can and can't do. Why are liberals so afraid of allowing this issue to be decided by the proper legislative process? Why does it belong in the judicial branch?
The above notwithstanding, I think there does exist a good reason why the Supreme Court has been making deicsions on abortion: it is indeed, just as the fanatics on both sides point out, an issue of rights. The question is really about whether the fetus has a right to life and whether this right trumps the mothers right to exclusive control of her body, and this is a very difficult issue. It seems to me that even if the fetus was not a person but only a potential person, it would have at least some rights, and these rights would probably increase as it went to term (Jewish law sees the issue this way). However, it seems to me that it makes a lot of sense to say that the fetus is a complete person from the perspective of legal rights from the moment of conception (the fetus is at this point a living organism with unique human DNA, and that seems like a reasonable definition of person for the purpose of legal rights), and if not at conception certainly at first brainwave (although this makes the issue far more difficult, as not all fetuses have their first brainwave at the same number of weeks after conception, and detecting brainwave activity is difficult). This makes the case (at least after first brainwave) like the case of an unwanted guest who somehow comes to be in your home through no transgression of his own (e.g. he stumbles in during a blizzard, quite by accident). Now, certainly it would be wrong to actively kill this individual in the course of removing him from your house, which, I understand, is what happens in "partial birth" abortions. But what if you remove him from your house, back into the blizzard, without your personally doing any active harm to him, but knowing that he will die of exposure? Certainly this is immoral, but ought it to be illegal? I lean toward yes on this issue, but I'm not entirely sure. The thing to do, if you are unwilling to take care of this person, is to call the police to come and get him. But what would happen in a "state of nature" with no government? Or what if the police can't get there? How long are you expected to keep him in your house? If there were no police, would you be expected to find someone else to take care of him? If he had a "right" to be taken care of in that way, that would be a "positive right," therefore he has no such right. Furthermore, there is no real analogue to just calling the police in the abortion case (although we can imagine a situation in which the government or some charity will pay for the cost of removing the fetus and transplanting it to a willing host, and technology is not far from being able to make this happen, I think), so what happens here? Does the analogy break down at this point?
Weighing these kinds of questions about rights is one of the primary things that the Supreme Court does, and so it certainly makes some sense that abortion cases would come before them. However, the Supreme Court is only supposed to deal with rights protected by the Constitution, not with all "natural rights" (although one may claim that the 9th and 10th amendments are intended to protect all natural rights) - if we discover new natural rights that aren't in the Constitution, we should amend it. The Supreme Court may be right to say that if a woman is prohibited from having an abortion in a case where she will die if she does not, she is "deprived of life ... without due process of law," but does the fetus have due process rights as well? This at least is an issue of Constitutional interpretation and belongs in the Supreme court. The first section of the 14th amendment reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Suppose, however, that the fetus is not protected by the 14th amendment (or any other part of the Constitution), and that the mother's life is not endangered. How is this now a constitutional issue? Why should the Supreme Court make decisions in this case? Does anything in the Constitution really have to do with this decision? If not, it should be decided by legislatures, preferably on the state level (unless Article I Section 8 gives some kind of authority to the federal government to handle the issue).
These are just some thoughts, and not necessarily a considered position. I think this issue is much more complicated than most people on either side want to admit and, further, that the Bible is not so clear as most Evangelicals want to admit (most of the arguments from Scripture I've heard would lead to the conclusion, once taught by the Catholic church, that there was a moral duty to attempt to ensure that every time a man ejaculates it results in the creation of a child, since the Bible is always saying that God knew us before we were conceived, see e.g. Jeremiah 1:5, Psalm 139:16 - this is of course also connected with the theory of Van Leeuwenhoek and others that humans are "pre-formed" in either sperm or ova). As I said, I lean toward the position that the fetus is a person from conception and should therefore be protected, I just think that there is more room for doubt than most people want to acknowledge. This gives rise to the question of what the government ought to do when acting under uncertainty in cases like this, an issue I hope to address in a later post.