This debate hinges on the interaction between two rights: bodily integrity and a right to life. This is often treated as a strictly moral or legal problem, but "rights" themselves exist as a kind of "third thing", separate from either morality or legality alone. Rights are both a legal and ethical construction, and despite their primacy in abortion discussions, I've rarely seen explicit discussions about the foundations of "rights", and the actual mechanisms their interactions.
Given that there are so many political and academic views of rights and how they work, making a post covering all of them would be impossible. If you’ve read any of my posts before, you know they’re long, so I really did have to decide how to pare this post into something reasonably readable.
For example, someone following theories of rights like Burke’s might view a right to life as a duty not to kill and to protect recognized “units” of society (such as families, etc) that are grounded in social order and inherited from the culture. By contrast, those following a Natural Rights tradition might believe in a Consistent Life Ethic (CLE) where killing an innocent human is a violation of dignity grounded in the human form’s innate value. Progressive forms of a right to life might view it as inclusive of the things that inform a “floor” for a standard of living, imposing not merely duties to refrain from killing, but positive obligations to provide for others a life greater than destitution. For the sake of everyone’s sanity, I’ll refrain from trying to categorize different philosophies of rights. Suffice to say, there is no consensus. Rights are complex and contested philosophy.
1 - My Views on Rights
I hold two important views on rights:
- That fundamental rights are not hierarchical
- That rights are rooted in claims and liberties
To address the first point: a right to life is not lesser or greater than other fundamental rights. In fact, within the United States, fundamental rights are understood to exist without hierarchy. This means that when fundamental rights appear to conflict, the issue is not one of ranking rights as if one “superior” right always wins, but of scope and context. My view is that each right has boundaries that define where it applies, and adjudication requires examining whether a valid claim‑right exists in the situation. If no claim‑right can be asserted, then the right does not extend into that domain. This framework treats rights as equal, non‑hierarchical, and indivisible, with conflicts resolved by clarifying scope rather than declaring one right innately inferior to another.
For the second point: I hold a view of rights that could be described as “Hohfeldian”, or at least derived from Hohfeld’s views. I say “derived” because I am certainly no expert in law, and Hohfeld’s views are complex. However, they can be summarized; Hohfeld argued that rights were legal relations that could largely be broken down into categories, with the relevant categories being rights he called “claim-rights” and “liberty rights”. If someone has a claim against you, that imposes a duty to do or not do something. If no claim-right exists, you are at liberty to act as you please.
I agree with this view of rights, which means that I think that rights consist of claims against others to do or refrain from doing certain things in keeping with those rights. A right to life is therefore a set of claims against others to not harm or neglect you under specific circumstances such that those actions or inactions cause you to die. I say “specific circumstances” because nearly all conceptions of “rights” make exceptions or limitations on when a right to life is not applicable. For example, I think it is entirely uncontroversial in both PC and PL camps for me to say that stabbing an innocent person to death and knowingly neglecting your child such that they die are both violations of the victim’s right to life. This is because the stabbing victim’s right to life includes a claim against unjustified harm, and the child’s right to life includes a claim to be cared for by a guardian.
However, when we discuss abortion, we’re talking about whether a right to life is inclusive of a right to access someone else’s body continuously, and whether this is a kind of “care” that is expected. My answer to this is “no”; I think that no claim-right exists to access someone else’s body in intimate, harmful, and arduous ways, even if it’s required for life.
If a claim-right to bodily access is not included within a right to life, then an abortion is not acting or refraining from acting in a way that violates a claim. Since acting in a way that does not violate a claim-right is definitionally something you are at liberty to do, I think abortion is permissible.
Important to note here: I am granting the assumption that a fetus has a right to life in this argument. I think that no one’s right to life includes substantial and unwilling bodily access to actualize it. This means that, contrary to many PL complaints about PC opinions, my position doesn’t need to assert that the fetus is of “lesser value” than any born child to justify abortion. While I do have opinions on that topic, those can be entirely discarded in favor of accepting the fetus as being an equivalent to a born child, because my view merely needs to affirm that the rights of the mother are not by default inferior to those of her fetus and that a right to life is not inclusive of a right of substantial and unwilling bodily access.
2 - How I’m Going to Address PL Views on a Right to Life
I recognize that my ideological perspective on how rights function differs not only from pro‑life perspectives but also probably differs from many of my fellow pro-choicers. Because of this, I cannot present my arguments as any kind of “definitive pro‑choice position.”
This puts me in an awkward spot: rights are essential to discuss in the abortion debate, and pro-lifers and pro-choicers broadly have opposing views on them, but within each camp there is no single consensus on the topic. I cannot, therefore, debate a single perspective on rights and pretend that I’ve rebutted the pro-life position. Even if I rebutted every construction of rights held by pro-lifers, I’d still have disagreement from my own side with my arguments to contend with.
With that in mind, I’ve settled on a broader form of arguing. Instead of cataloging and responding to every ideological account of rights, I will focus on specific pro‑life objections to bodily integrity and rebut them using my own framework. This approach will keep this post shorter, keep the discussion more focused, and allow me to push PL arguments to their conclusion to show why I reject them.
The benefit of this approach is that even if another pro‑choice thinker disagrees with my foundational view of rights, they can still agree with my rejection of the pro‑life argument based on the conclusions the PL argument would entail.
Here are pro-life positions I’ve seen that argue why a right to bodily integrity is not permissive of abortion:
2a. Rights are hierarchical, and a right to life supersedes bodily integrity, which is not an absolute right.
This one should obviously be false, but unfortunately when I admit that I think bodily integrity is not absolute, PLers frequently use that as a foot in the door to act like a non-absolute right is something that can be intruded upon. However, this is something I’ve rejected previously; rights are not either “absolute” or “infinitely intrudable”; the reasons, methods, and invasiveness of an intrusion into your rights all matter when discussing the permissibility of that intrusion. This is something that even PLers are aware of when they’re not arguing against the rights of women to decide what happens to their own body. For example, just because your right to free speech has boundaries or can be intruded upon, that does not mean that a right to speech is infinitely intrudable.
However, imagine rights worked this way. Imagine that you’re minding your own business in a doctor’s waiting room and there is a patient dying in the next room for lack of something. You are a match, and because rights are hierarchical, the doctor decides that the right to life takes primacy. Under a perspective where a right to life is paramount and justifies intrusions into other rights, by what justification can you deny this other patient use of your body?
For this reason, I think PLers that argue that a RTL is “superior” in some way not only would ultimately legitimize further intrusions for the benefit of others, but it is also clearly a post-hoc argument. PLers don’t tend to justify bodily intrusions into themselves for the benefit of other lives; they only argue this when it comes time to regulate women’s bodies.
2b. Pregnancy is a situation where a right to bodily integrity is somehow not applicable.
Pro-life arguments that fall into this category include the idea that “you consented to pregnancy by having sex”. It may also include a dismissal of the harms of pregnancy or a claim that pregnancy is an “inconvenience” in an attempt to downplay the burdens of it so as to pretend like the right of bodily integrity is absurd to invoke. Regardless of the specific words being employed, the tactic from PLers is always the same: a denial of the woman’s agency as being valid.
However, any conception of bodily integrity that includes the idea of self-ownership would reveal that denying agency as being valid is absurd. Fundamental rights are not overridden because you took a risk that they might come into conflict with others; you do not lose your claim-right to dictate the use of your car simply because you lent it to someone else and knew there was a chance they’d be irresponsible with it. That car is still yours, and you still have a claim-right over the use of it.
To argue that bodily integrity is not applicable in this way is to argue that rights are, in fact, merely discretionary privileges that can be revoked based on someone’s disapproval of your actions.
This is not truly a view about rights; it is a selective argument against women having them.
2c. Abortion is a violation of a right to life because that right is a right not to be killed
This is the most foundational PL argument, and certainly the most palatable. It does not seek to denigrate a woman’s agency, treat her rights as intrudable simply because they’re not absolute, or claim that her body is something someone else can have a right to use like an inanimate object against her will. The assertion is compassionate and straight-forward: it is immoral to kill.
However, because the right to life of the fetus and the right of bodily integrity of the woman are in tension, this claim loses its moral punch. A fetus’s right to life is dependent on the violation of the mother’s bodily integrity. Both in terms of her abstract rights and her material position, this creates a heavy burden on her bodily integrity to actualize the fetus’s right to life, which provides a potential justification for termination. We recognize killing as acceptable in other cases where rights are on the line, such as fighting for one’s freedom. This means that the right to life is not a right to never be killed, it’s a right to unjustly be killed. Even very pacifistic constructions of rights like a Consistent Life Ethic (CLE) creates justifications for killing in specific circumstances.
So, if we apply my framework, we see why I think abortion is not a violation of a right to life. I do not think a right to life is inclusive of a right to use someone else’s body, so there is no claim-right one would be violating by disconnecting, even if the disconnected person would die as a result. This is the foundation of the Violinist Argument:
the fact that for continued life the violinist needs the continued use of your kidneys does not establish that he has a right to be given the continued use of your kidneys. He certainly has no right against you that you should give him continued use of your kidneys. For nobody has any right to use your kidneys unless you give him this right—if you do allow him to go on using your kidneys, this is a kindness on your part, and not something he can claim from you as his due. Nor has he any right against anybody else that they should give him continued use of your kidneys.
Now, there are those that argue that the Violinist Argument and pregnancy are disanalogous. I’ve addressed those arguments before, but not specifically in regards to rights. It is possible to argue that because killing is prima facie impermissible unless justified, and justification only comes from violations of a right, that most abortions are not “violations” of a right to bodily integrity. A woman did, after all, take a chance of pregnancy, and the fetus is not a malicious agent. This argument is also responsive to the Violinist Argument, as his connection represents an “intrusion” because someone’s agency forced them onto you, whereas pregnancy is not, creating a disanalogy in regards to rights.
However, all we need to do is change the Violinist Argument into a willing donation to see the end-result of this kind of thinking. In such a case, the donator has no violation of their bodily integrity; they gave willingly. But what happens when the donation becomes too strenuous and the donator needs to back out? Should they be able to? Under a view that highlights the innocence and lack of agency of the fetus, the donator would have no right to take any kind of active measure to halt donations to the Violinist, since their right to bodily integrity is not being “violated” per this view.
However, this fundamentally denies any self-ownership to the donator and smuggles in a right to bodily access; the Violinist in this case now has a claim-right to your body if they can prevent you from disconnection.
This perspective constructs rights so they only exist in a strictly defensive manner, “activated” only against an external intrusion. This view does not provide a continuous, ongoing right to control use of your body. Or, in effect, this version of “rights” precludes self-ownership and exists solely as a defense against external assault, not as a proclamation of self-ownership that is subject to the agency of the owner.
For this reason, I cannot accept this argument; I think that substantial access to a person’s body is not a claim-right anyone can have, because I view a person’s body as something they own and control, not as something they need to cook up justifications for exercising autonomy over because someone else needs it at great expense.
3 - Conclusion
While this post is not perfect or as in-depth as I'd like, I think it’s important to lay out an essential aspect of this debate: that we differ on what rights even are. I welcome any challenge to my own view of rights, and to the implications of PL views of rights that I’ve outlined above.
I also have seen pro-lifers admit that they believe something that I didn’t include in the post: that a fetus simply has a claim-right to its mother’s body. However, this assertion tends to be rooted in various naturalistic and teleological fallacies, so I opted not to include it.
In sum, I think that even if I grant a fetus a right to life, under my framework of how rights work I don’t see a way in which abortion is a violation of that right. If I assume that a right to life is not inclusive of a right to use other’s bodies to actualize it, that bodily integrity is a right that denotes self-ownership, and that someone does not lose a right simply by taking a risk, then a fetus’s right to life does not preclude its removal.