Whatever your beliefs, do not confuse your convictions with moral, or other, rights
In the history of ethics and the law, the language of rights is a relatively recent development. However, it is now almost the default way of expressing moral convictions, and is often used – in a phrase borrowed from Ronald Dworkin – as a trump card with which to win an argument or settle a dispute. It is not surprising, then, if some opponents of abortion legislation appeal to rights, and if some of their critics do too.
Unfortunately, the apparent certainty of rights conceals the uncertainty of many convictions expressed in those terms.
Rights as claims
One way of making a forceful demand is to say: “I have a right to it.” A right in this sense involves three elements: who has the right, what they have a right to and, especially, who has a corresponding duty either to provide them with something or to refrain from interfering in their behaviour in some way. If I have a right to food or shelter, someone else has a corresponding duty to provide me with food or shelter. If I have a right to “life”, everyone else (?) has a duty to refrain from taking my life.
It is obvious that merely asserting a right does not make it true. Shouting louder about my alleged rights doesn’t make any progress either.
Rights as privileges
In another sense of the term “right”, if I have a right to do something it means only that the action in question is permissible. In this sense, I have a legal right to walk down O’Connell Street, if no one is legally entitled (except in special circumstances) to prevent me from doing so. Likewise, I have a moral right to do something if others are not entitled morally to prevent me from doing it.
Legal rights
It is easier to decide whether I have a legal right to something than to decide if I have a moral right to it, because there are usually agreed procedures for deciding the issue. When Seán MacBride signed the European Convention on Human Rights on behalf of Ireland in 1950, Irish citizens thereby acquired legal rights that they previously lacked. In fact, most legislation, domestic or otherwise, has the effect of conferring legal rights on individuals or office-holders to perform certain actions.
In this sense, women have a legal right to abortion in specified circumstances in Ireland, as a result of the Eighth Amendment of the Constitution (1983). Legal rights may be abolished or changed as easily as conferred.
Moral rights
In contrast with moral rights, there is no generally agreed procedure for deciding if someone has a moral right to something or other.
Those who hold strong convictions about certain issues, such as killing animals or eating their meat, may express their views in terms of “animal rights”. But the plausibility of one’s convictions is not enhanced by changing the language in which they are expressed.
We still need good reasons for thinking that the original conviction is plausible, and one cannot compensate for the weakness of a claim by borrowing the apparent strength of rights language. If we escalate still further to the language of “human” rights – as if they were obvious or uncontentious – we make no progress either.
Ethical disputes and rights
The language of rights flourished after the second World War as a way of expressing some of the most fundamental values of human beings, such as the value we place on survival, relatively freedom from suffering, etc. When this language is extended beyond its initial use, as it is when people talk about animal rights, the burden of proof may be camouflaged.
Those who think that it is morally permissible for women to have an abortion (in certain circumstances?) may express their conviction by saying women have a “right” to abortion. Those who think the opposite may express their conviction in similar terms.
The extent to which this ethical issue has been discussed worldwide, for at least a century, and its lack of resolution suggests at least one conclusion: we do not have persuasive reasons for believing abortion is never morally permissible. This lack of resolution cannot be avoided simply by changing the language in which people express sincere convictions.
* Desmond M Clarke is emeritus professor of philosophy at UCC and a member of the Royal Irish Academy