Abortion: The Tyranny of Rights

I am hard pressed to find a more polarizing issue in American politics today outside of abortion. Sure, you have critical race theory, division over LGBTQ+ ideology, and other crucial issues. However, abortion has remained on the top list of quarrelsome social issues for nearly half a century thanks to Roe v. Wade. Since the monumental decision in 1973, abortion has found its way to the courts on multiple occasions. In this year’s term (that commenced a few weeks ago), the Supreme Court will be taking on a monumental abortion case: Dobbs v. Jackson Women’s Health Organization. In Dobbs, Roe v. Wade is directly challenged as being unconstitutional--not just appalling jurisprudence on part of the 1973 bench, but a direct violation of the 14th Amendment. I will not be dealing with this case directly in this piece, but I encourage you to read a powerfully lucid and succinct summary of the case, and a great brief from Princeton University’s renowned political philosopher and legal scholar, Robert P. George.

I felt led to mention this case because it will be garnering inordinate amounts of attention over the next few months, as it should. It also led me to write this piece and begin detailing my opinions on abortion as I will be writing two separate pieces dealing with two separate aspects of abortion. I hope that in both, our readers will find fresh thoughts on this pressing issue as I attempt to use the conservative ethos to compose these arguments. This piece will directly confront the liturgical cries that “abortion is a women’s health right.” The proper place to start is in asking quite an important question: What is a right?

Read an opposing viewpoint: Georgia Hinders Women's Right to Choose

In the wonderful HBO miniseries “John Adams,” the prudent author of the Articles of Confederation, John Dickinson is found in a disagreement with John Adams over whether or not there should be an Olive Branch Petition. Dickinson, arguing for it, makes a sagacious statement to Adams (who has just given a speech on the violation of their natural rights by the English government):

I have looked for our rights in the laws of nature and can find them only in the laws of political society. I have looked for our rights in the constitution of the English government, and found them there.

I am not sure as to whether or not this is an actual quote from Dickinson while convening with the Second Continental Congress, but it is a profound statement and does seem consonant with Dickinson’s philosophy. Contextualizing this quote, and the sentiments of the Congress at large, we can see that not everyone was quiet on board with Jefferson’s radical liberalism. That is why there was an Olive Branch Petition before a Declaration of Independence: Many of the founders understood, keenly, that the human individual is a social artifact and that the self does not exist prior to society but is created through civil association. After all, as many political philosophers point to, Aristotle did claim that we were political animals. This idea comes from The Politics, and I believe it is true--perhaps so true that is has been one of the primary building blocks of Western Civilization--but I think he makes the same point, more romantically, in The Nicomachean Ethics:

Now by self sufficient we do not mean… one who lives a solitary life, but also for parents, children, wife, and in general for his friends and fellow citizens, since man is born for citizenship.

John Dickinson and others like him knew they were Englishmen who deserved their birthright, and thus they first sought reconciliation with their country before ever declaring independence. They feared that in leaving their country they would lose their rights as Englishmen, rights that had been established and refined for centuries through resolutions of conflict, customs of morality, and the common law tradition. They were right to fear this. Returning to the above quote from HBO John Dickinson, there is no appeal to “natural rights” but to their rights established in the English constitution. Now, one may argue that those are natural rights, and I believe this is correct. The issue is not necessarily that natural rights do not exist, but that natural rights are entirely unnatural. In what is perhaps one of the most famous lines since pen met paper, Thomas Jefferson writes:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Thomas Jefferson eloquently details his view on rights: They are self-evident truths. Sure, they come from our Creator--but they are self-evident and made manifest outside of and separate from him. I have many qualms with this view of rights, and would like to turn to the definition of rights detailed by Nigel Biggar in his book What’s Wrong With Rights?

Paradigmatically, a right is a social institution designed to secure an important element of human flourishing — that is, a good.

I do believe that natural rights exist, but their existence rests entirely on two things - namely, the metaphysical assumptions about man found in the Judeo-Christian ethic, and our Anglo-American political institutions. Upon establishing this, I then will turn to examine the idea that there is a right to abortion.

In order to begin, it is best to take a closer look at Jefferson’s aforementioned line in our Declaration of Independence. Now, Jefferson displays beautiful prose, but is he correct? Is it really the case that natural rights and truths like ‘all men are created equal’ are self-evident? By self evident he means to say something similar to Kant with his Categorical Imperatives: namely, that a rational mind can clearly see the inexorable, manifest truth in history that men are equal, endowed with natural rights (or for Kant, that people should be treated not as means to an end, but as an end in and of themselves). When we take time to peer through history do we walk away with the conclusion that it is manifestly the case that men are equal?

Quite the contrary. History goes to show the very inequality of man. Among many of the stories it tells, one is that of conquest, slavery, barbarism, tyranny, and greed. Civilizations conquer and enslave one another; powerful men abuse their power and oppress groups of people; and the I-you relation is tattered and stained with greed, corruption, and pride. Is this the whole story of history? No. Does history merely show us a dark picture of humans? Not quite. However, it is a major theme; and for our purposes it goes to show that any idea that it is manifestly the case that men are equal is rather foolish. Where in history is this equality, where are these rights? You will be hard pressed to find them for sustained periods of time, and you cannot in any way argue that history would lead you to conclude that it is obviously the case that these things exist.

The complications of viewing rights this way do not stop here. Jefferson, like John Locke, named three self-evident rights: life, liberty, and the pursuit of happiness (property for Locke). This does not seem like too many, but why not expand the list to 100? After all, where is this list? It certainly is to be found nowhere in nature. We must also consider that when it comes to the I-you relationship that drives civil association, there is a moral boundary that arises between us. We navigate this boundary through what Roger Scruton called a “calculus of rights and duties.” The issue, however, is that there is no such thing as a right or a duty in nature. Yet, when things go wrong in civil association, we claim this boundary has been crossed as we impute the wrong on someone and remedies are sought. Who decides that this remedy is just? By what principle is that decision held accountable? Who ensures that the products of our “calculus of rights and duties” is not wholly incorrect? By what standard do we measure these blunders? There is a pivotal complication arising here: There is no rational decision procedure determining what is a natural right and what is merely the invention of men. So then if natural rights are not mere results of abstract reason, or corporeal objects to be found on some list in nature, then are they simply made up by men? Are they, as Jeremy Bentham described them, “nonsense on stilts?”

If we rely solely on what Burke described as “naked reason,” then yes, natural rights are the products of idealistic fantasies. However, I do not think this is the case. The rights we have enjoyed for so long here in the Anglo-sphere have never been understood in this way. Essentially, the rights we have inherited find their legitimacy nested in the metaphysical truths about man found in the Hebrew Bible. It begins with Augustine traveling to Britain to convert King Æthelberht to Christianity and turn the Anglo-Saxons away from paganism. This was the birth of a moral law tradition that would be refined for the next millennia and a half--and, upon institutional bolstering that the Norman Conquest brought to Anglo-Saxon law and government, inaugurated the common law tradition we reap the benefits of today. The truths of the Judeo-Christian ethic have forged the very political air we breathe in the Anglo-sphere and have entirely saturated our laws. Joseph Story says as much in his masterful work Commentaries on the Constitution of the United States:

I verily believe Christianity necessary to the support of civil society. One of the beautiful boasts of our municipal jurisprudence is that Christianity is a part of the Common Law... There never has been a period in which the Common Law did not recognize Christianity as lying at its foundations.

The rights we enjoy here in the United States are not the products of an enlightened mind. While I agree with Jefferson that it is a truth that we have rights, and while I agree with Kant that people should be treated as ends and not means to the end, these truths are not truths that “rational minds will accept and obey.” After all, history is suffused with rational minds who most certainly did not accept nor act in accordance with these truths. Germany was, after all, known as the “Athens of Europe” in the mid 20th Century; we all know how that culminated. The rights we enjoy are natural rights, but they are not natural at all. Their foundations are deeply established in metaphysical assumptions about man found in the Judeo-Christian ethic. After all, John Adams did say that the Constitution was made for a moral and religious people. He was right, and he was also spot on when he said it is wholly inadequate for any other.

Furthermore, now that we have detailed the first pillar upon which our conception of rights rests, we are left to discuss the second: our Anglo-American political institutions (I promise this will all tie into abortion!). We have seen the fallaciousness of holding that rights exist abstractly, and now I hope to make one point clear: Rights themselves are not t