Abortion and the Question of Rights

The decision of the American Supreme Court, in effect reversing Roe v Wade, echoed in Europe. There was debate in France as to whether the right to abortion should be written into the constitution and in Britain as to whether it should be included in a Bill of Rights. “Liberals” were much more exercised about it than conservatives because abortion on demand has been conceded, de facto if not de jure. But “liberals” need grievance, even if it is only in anticipation.

The British law on abortion did not envisage abortion on demand, at least not explicitly, though it might have been in the framers’ minds. It is, in fact, difficult to frame a law in such a way as to limit abortion to cases in which even most conservatives would concede that it was justified, and which does not soon become the legalisation of abortion on demand.

The doctor in Britain, faced with a request for an abortion up to twenty-four weeks’ gestation, almost always accedes at once. There is more than one reason for this. First, there is the futility of resisting: another doctor will soon be found to accede, and therefore refusal is only to create a pointless distress for the patient. Second, refusal often offends, as notices on shops used to say about requests for credit by customers. Doctors do not like scenes in their offices and do their best to avoid them. Giving the patient what she wants is a good way to do so.

Third, there are always a couple of straws at which doctors can always grasp to justify their pusillanimity. The first straw is that any termination of pregnancy is safer for a mother than any pregnancy itself carried to term: therefore, the doctor can always tell himself that he is preserving life by agreeing to an abortion. Of course, the mortality rates of both pregnancy carried to term and medical abortion are tiny, and the absolute difference tinier still, but the urge to rationalisation is strong.

The second straw is that the law puts mental health on the same level as physical health. This, of course, is a perfect get-out for any doctor whose conscience might be troubling him. The fact is that any patient who does not get what she wants is perfectly capable of manufacturing mental ill-health for herself. As Violet-Elizabeth, a spoilt girl with a lisp in the Just William series of books for boys by Richmal Crompton, put it, “I’ll thcream and thcream and thcream until I’m thick. I can.” Anyone can make a suicidal gesture—150,000 people do so every year in England and Wales—and while the great majority do not end in death, some do, even unintentionally. The suicide of his patient as a consequence of something the doctor has or has not done is traumatic for him and liable to cause him legal problems. Best, then, just to agree and sign the paper.

In Europe, there was a wide misapprehension of the meaning of the Supreme Court ruling, particularly among “liberals”. It was seen as a direct attack on the human rights of women, an attempt, in essence, to return to the coat-hanger era of abortion. The constitutional issue escaped them entirely: as, indeed, it seems to have done the dissenting voices on the Supreme Court.

Nor was there any discussion of what a right to abortion actually meant. There are at least two possible interpretations of that supposed right. The first is that no one woman can, a priori, be legally denied the possibility of an abortion; the second is that she must be guaranteed an abortion in actual practice if she wants one. The two are not the same by any means; and the second interpretation imposes on the government the duty to ensure that any woman who wants an abortion has one. Since such tangible benefits come at a financial cost, this in turn imposes upon governments the duty to tax their citizens to pay for them, and tax can only be paid from the labour of those citizens (or borrowing, of course). In other words, citizens are to be put to forced contributions to pay for other people’s abortions. The morality of this is far from clear; nevertheless, “liberals” are inclined to interpret rights not as permissions but as existing only if they are actually exercised. This is the Soviet view of rights: the old criticism that the Ritz is open to all, the beggar and the millionaire alike.

Now some act may be better, kinder, more economic, without it being the fulfilment of a right. But the language of rights so constricts the moral imagination that if you say something like “People have no right to housing”, the almost invariable response is, “So you believe it is all right for people to be homeless?”—as if the only reason for people to be housed and not to be homeless were that they had a right to housing. So it would be perfectly possible to say that women could or should have access to abortions (with or without restrictions) without their having a right, in the “liberals’” expansive sense of the term, to such access.

Part of the reason why the debate in the United States has been so bitter is that it has been couched almost entirely in the language of two opposing rights, that of the right to life and that of the right of the woman to dispose of her body as she sees fit. And these are, to quote “Dover Beach”, ignorant armies that clash by night. Where two rights that are taken to be absolute are incompatible, all that can result is a bitter power struggle that, where opinion is divided, is likely to endure.

Let us take the first right, the right to life. This would seem to entail perfect pacifism, and while such pacifists exist, they are very few. Moreover, it would also entail that a ten-year-old girl, pregnant as a result of rape, would be obliged to go through to term; and while again there might be some people who would claim this, I think they would be very few and would be considered by most to be fanatics.

If it is conceded that in the case above an abortion is morally permissible, then the right to life is no longer absolute, and the question then becomes under what circumstances abortion is permissible. This, of course, is the beginning of a slippery slope, but slippery slopes cannot be avoided in human affairs: they have to be negotiated. Almost all human actions are the beginnings of slippery slopes, and many are not slid down, though many are.

The right of women to autonomy over their own bodies is not absolute. Again, that autonomy has two senses. The first, which almost everyone would concede, is that which gives the woman a right of veto over what is done to her. A surgeon has no right to operate on her against her will even if he thinks the operation will save her life (men, of course, have the same right to autonomy). But even this autonomy has its limits: the wishes of a person without mental capacity to decide for herself may be overridden, indeed ought sometimes to be overridden, in her own best interest. The fact that such power to override can be, and often has been, abused is not an argument against the occasional necessity of its exercise: Nature does not arrange things for us in such a neat way that everything is unequivocal and judgment, which may be mistaken, does not have to be exercised.

The second kind of autonomy is the right to do with herself whatever she wishes. Again, this is limited, even severely limited. She has a right, perhaps, to throw herself off a cliff, provided she injures nobody but herself and damages no property below (though by doing so, she imposes obligations on others, for example clearing up and determining the circumstances which led to her action—if, indeed, it was her action, and she was not pushed); but she does not have the right to throw herself off the cliff in front of others, who will be called upon, possibly at some hazard to themselves, to stop her. (This is not purely theoretical. Once a patient in the hospital in which I worked climbed up on to the roof and threatened to throw himself off. A hospital porter and I rushed up to the roof and the man jumped. We managed to hold him, but only just. “Let me go, you bastards!” said the man, followed by “Help, I’m falling!” On the grounds of patient autonomy, I suppose, the late Thomas Szasz, for whom I had great respect as a man and a polemicist, would have let him go. Fortunately, the police happened to arrive just then and, with no thought for their safety, managed to haul the man to his own safety. In such a situation, the supposed right to personal autonomy doesn’t come into it.)  

While a patient has a right to refuse an operation, he has no right to demand one independent of the judgment of the surgeon who is to perform it. Again, this is not purely theoretical. There is a rather bizarre sexual predilection—if one is allowed these days to call any sexual predilection bizarre—in which the person can (or says he can) achieve sexual satisfaction only if he is an amputee, a condition called apotemnophilia. It is rare, and whether or not it is of purely neurological origin is a matter of discussion.

Another matter of dispute is whether or not surgeons should oblige apotemnophiliacs by the amputation of a perfectly healthy limb. If the patient threatens to carry out such an amputation for himself, the logic of harm reduction would suggest that a surgeon should amputate, for then the risk of death is reduced almost to zero. There was, in fact, a Scottish surgeon who did precisely this—for a time, until he was forced by the licensing authorities to stop. The doctrine of harm reduction treats all anticipated harm as if it were a natural fact of the same order as, say, the eruption of a volcano, something over which humans have very little say or control.

A person does not have a right to an operation just because he wants it or threatens to harm himself if he is not given it, even if his threat is genuine. I faced this kind of threat many times in the prison in which I worked. A prisoner would demand a prescription for a tranquilliser (a kind of currency in the prison) for which I saw no strict medical indication, and claim that he would harm or even kill either himself or another if I did not accede to his request, adding that, when he carried out his threat, it would be on my conscience. I could indeed never be quite sure that he did not mean what he said, but outwardly I maintained a firm line that what he did was up to him, not to me, and that if he harmed either himself or another, he, not I, would be responsible. The doctrine of harm reduction makes of doctors their brother’s keeper, rather than his adviser, a role fraught with dangers, both for brother and keeper. On the other hand, too strict or dogmatic a refusal of the role on purely abstract philosophical grounds might lead to avoidable hardship and tragedy.

There is a further consideration with the bodily autonomy that supposedly gives the woman an inalienable right to dispose of a foetus if she so wishes, and that is that, while the foetus is in her body, it is not completely of her body. For the moment, at any rate, until parthenogenesis becomes possible or the norm, the foetus is produced of the union of two persons’ gametes. The woman is biologically more invested in the child within her, so to speak, but this is not the same as saying that the father of the child has, or ought to have, no real interest in it, that pregnant women are, or ought to be, socially isolated atoms who should have no one to consult but themselves in the matter of child-bearing. A society in which this was the case would be a crude or brutal one, with little regard for human life as something, if not sacred exactly, at least something not merely dispensable like a tissue paper or a drinking straw. One possible interpretation of the extreme enthusiasm for the right to abortion among those who are least likely to avail themselves of it is that it is a subliminal return to the days of eugenics: since, statistically, the women who are most likely to need it are of low class, of poor education and black, abortion is the means of ensuring that such a population does not grow disproportionately, especially in times of low natality elsewhere.

In fact, women do not on the whole regard abortion as just another operation, equivalent to, say, the removal of a blemish on the skin. Some do so, for nothing is true of absolutely all human beings; as in the Soviet Union of old, some use abortion as their means of birth control. But most women, at least in my medical experience, agonise over the problem and exhibit none of the ideological triumphalism of the proponents of a constitutional right to abortion. They may deem an abortion necessary, but it is for them a regrettable necessity.

The difficulties, ambiguities and subtleties of the question are what is lost in an irresolvable clash between two supposedly absolute, but contradictory, rights—neither of which is based on sound premisses. The result is a kind of shouting match of megaphone philosophers. It all boils down to Lenin’s eternal question, “Who whom?”, that is to say who does what to whom. This is a recipe for conflict, the enjoyment of which for its own sake we should not underestimate, but which, taken far enough, can tear a society apart.    

It is the constitutional question that the Supreme Court addressed, and it was this that the liberals of Europe, outraged by the Supreme Court’s answer, either failed to see or saw only too clearly. Many of them being themselves in favour of the administrative omnipotence of the ideologically virtuous, and dreaming of a society so perfect that, in the words of T.S. Eliot, no one will have to be good, they saw in the Supreme Court’s decision a check to their vision, an assault on their worldview, and not merely one legal decision among others. In a world in which the struggle for existence has largely been replaced, at least for the moment, by the struggle over symbols, many people are more concerned for the preservation of their worldview than with the world.

A good example of European liberal commentary on the Supreme Court’s decision came, as perhaps was to be expected, in the Guardian newspaper. It quoted, with approval, Justice Breyer’s dissent in the case of New York State Rifle & Pistol Association v Bruen (for the record, I believe that the supposed right of Americans to carry arms is based upon a misinterpretation of the Constitution and the Second Amendment, but that is not germane to my present argument). Justice Breyer was quoted as follows:

In my view, when courts interpret the Second Amendment, it is constitutionally proper, indeed often necessary, for them to consider the serious dangers and consequences of gun violence that lead states to regulate firearms.

And the article goes on, again with approval, to quote the dissenting judges in the case of Dobbs v Jackson Women’s Health Organization:

 Closing our eyes to the suffering today’s decision will impose will not make that suffering disappear. The majority’s refusal even to consider the life-altering consequences of reversing Roe and Casey is a stunning indictment of its decision.             

These two quotations capture exactly and concisely what is at stake. It seems to me obvious that Justice Breyer and the other liberal judges are in favour of what might be called Red Queen jurisprudence, that is to say sentence first, verdict afterwards. They see their job as being to determine what is socially desirable, for example the avoidance of deaths by shooting or by coat-hanger abortion, and then twisting a text to produce the result they first thought of. They see themselves not as poets, the unacknowledged legislators of the world, but as the rightful legislators of the world, with their special insight into what is good for society, and it is their duty to bring about this good by means of the law.

The original decision in Roe v Wade was a natural consequence of this mindset. The majority of the judges thought (and here it is irrelevant whether they were right or wrong in this) that it would be desirable for women to be able to have an abortion more or less on demand, and therefore, no doubt with an inner moral warmth like a drop of whisky on a cold day, tortured the Constitution until it yielded the correct answer, rather as referenda are held in Europe until the population gets the answer right.

Now it seems to me perfectly obvious that, on any unbiassed or straightforward reading of the Constitution, there can be no constitutional right to abortion, the latter being in a certain sense transcendent and independent of particular circumstances. Most legal rights are not of this kind, for example that to paid holidays, say. These rights are contingent and revocable. It is true that once the word right attaches to a legislated benefit of some kind, it has, psychologically, the effect of entering a platonic or transcendent mental sphere, such that it is believed not to be subject to revocation: hence the French expression for a benefit received as an acquis, something acquired that, like private property, cannot be alienated. But this is surely a mistake.

The problem with Justice Breyer’s view is that it makes the Supreme Court the supreme and arbitrary power. If you can derive a transcendent right to abortion from the Constitution, you can derive almost anything from it that you regard as socially desirable. And, of course, there are an infinite number of rules that might be desirable from the point of view of doing good, at least in theory if not necessarily in practice, but which the principle of stare decisis will make difficult to revoke if they lead to harm or the idea of what is good changes. It is precisely for this reason that the Constitution is so limited in what it promises; it does not promise a reduced murder rate or a healthy childhood, desirable as these undoubtedly are.

It would be very easy, for example, to make out a case, in Red Queen jurisprudence, for the constitutional right of drug addicts to receive free naloxone (the antidote to overdose) using the argument that, if it is not granted, drug addicts will die who might otherwise have been saved. The American Constitution would become like the Stalin Constitution of 1936, that promised everything and delivered tyranny. Perhaps the basic point is this: that if men will not restrain themselves, even in their desire to do good, no constitution will bind them. A sense of limitation is necessary to a free people.

But it is precisely this sense of limitation that the modern liberal rejects. Since he knows what is good, his end must justify his means. The fact that the Supreme Court has referred the abortion question back to the states appals him, since he dreams of a world without demurral from his own standpoint. His dream is the abolition of politics and the establishment of a benevolent despotism—his own, naturally.

Anthony Daniels has contributed his Astringencies column to Quadrant since October 2015