Does the Fetus Have Rights?
Written: Apr 27 '00
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Pros: Darned if I can think of any
Cons: My mind is overwhelmed with an infinite number
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| TheAdvocate's Full Review: Abortion |
Well, does the fetus have rights? As the Supreme Court sees it, no. But nobody's ever explained why not. Because the fetus was never specifically mentioned in the Constitution (women weren't mentioned, either), the attorneys arguing for Roe ducked the issue by simply noting that a determination had never been made. The case, however, never legally proved the fetus did not have rights; in fact, Roe's attorneys admitted that "in civil law... a fetus had some rights in proprietary matters."
Beyond the muddy issue of fetal rights, we're still rather unclear, as a species, on the basic philosophy of human rights - what our rights are, where they come from, how many exist, or who gets to enjoy them. Why, for example, don't animals enjoy Constitutional rights? The founding fathers never addressed this question (I can't believe it ever occurred to them), but with a basic understanding of the Constitution, the Federalist Papers, and a smattering of human history, we can reasonably conclude that rights are presumed by our Constitution to exist for human beings and not animals because humans possess two distinctive traits: sentience and the ability to reason.
These two traits (and one might argue a third, self-interest) allow us to grasp the general "social contract," fleshed out and complicated beyond most of our reasoning capabilities in the writings of Rousseau, Hobbes, Locke, Spinoza, Hume, and Rawls. The social contract is really nothing more than our implicit agreement to live "in harmony" - not violating the lives (and/or "rights") of others.
With that stipulation in mind, defenders of the "right" to abortion figure that since a fetus has not yet fully developed the ability to reason, he or she is unable to participate in our tacit social contract. Without that ability to participate (tacitly or otherwise), the fetus doesn't qualify for rights.
This is a fine philosophical argument, but it fails as a legal one. Consider newborn babies, brain damaged, anesthetized, or severely retarded persons - even children as old as one year, none of which exhibit the ability to consider, let alone enter into the implicit social contract. Neither do they exhibit the ability to take on the responsibilities that rights theoretically require. But for some reason, their right to live (i.e., their right not to be killed) continues to exist under the law.
What reason is that? It works out to be our lowest common denominator: human genetics. We start using any other criteria (basing rights on health, intellect, merit, ability, talent, age, sex, income, race, etc.) and we're facing the proverbial slippery slope with well-waxed skis on our national feet.
The bottom line is this: under the law, our rights continue to exist even when our human traits aren't manifest, or when our sublime motivation of self interest (predicating our tacit agreement to the social contract) is not borne out by our own actions. Sentience, reason, and self-interest are reduced to chicken scratches when considering the basic human rights. As long as we're human, and haven't criminally violated the social contract in such a way that forfeits it, our legal right to keep on living is assured.
I don't think the fetus is particularly cute or cuddly, and I don't revere the condition of pregnancy. When I ask myself if the fetus has rights, I'm looking for an answer devoid of romanticism, sentimentalism, emotionalism or religious justification. So does the fetus have rights? If we're consistent, it ought to. Constitutional rights can't be granted or denied, they are presumed to exist for all human beings. H-U-M-A-N beings. That our federal justice system fails to recognize the rights of our youngest constituency is only a 20th century loophole paving the way for age-based discrimination. That, and it satisfies nicely my definition of "hypocrisy."
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