Individual Rights and the Right to Abortion

Only a proper understanding of the Enlightenment concept can resolve the perennial moral and political controversy.

On the fifty-second anniversary of Roe v. Wade, we are pleased to release this essay which is part of a new, expanded edition of Ben Bayer’s book Why the Right to Abortion Is Sacrosanct, now available in paperback, Kindle, and audiobook formats on Amazon.

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With the overturning of Roe v. Wade, defenders of abortion rights can no longer appeal to the authority of the Supreme Court to support their position, or as a precedent to support their lawsuits. To challenge state abortion bans through referenda or appeals to state supreme courts, or even to amend the Constitution, they will have to offer philosophical arguments about what rights a proper constitution should recognize.

And that might seem hopeless in the wake of the Dobbs v. Jackson decision, because it suggests that “a right to abortion is not deeply rooted in the Nation’s history and traditions.”¹ What’s more, the Declaration of Independence enumerates the “right to life,” the very right that abortion is thought to offend against.

Yet the task of defending abortion rights is far from hopeless, precisely because the intellectual tradition behind the American founding documents derives from the doctrine of individual rights, a doctrine originally formulated by radical Enlightenment philosophers. Few who engage in the current abortion debate (on either side) bother to examine the history or implications of that radical doctrine for this debate. In fact, the concept of individual rights was such a revolutionary intellectual development that even its originators did not grasp all of its implications. Most people today realize that it took time to appreciate how the doctrine would support the case for the abolition of slavery. In my view, fully grasping the doctrine would also support the case for abortion rights, and this essay will show how.

To show this I will begin by examining the neglected history of the doctrine. Identifying the problem that philosophers meant the theory to solve will expose its core meaning, and thereby its central applications. This will shed light on how to apply it in controversial cases. Debates about abortion usually revolve around analyzing the status of the embryo or the fetus: when does it first feel pain, when does it have a heartbeat, when is it first viable, what is its genetic code? Almost no one considers whether any of these questions matter for determining how and whether the concept of “rights” applies. Understanding how the doctrine aimed to solve a problem about how to structure society will illuminate why the concept of “rights” protects the woman and her choices, but not any embryo.

The essence of individual rights

The concept of “individual rights” is a product of political philosophy, which studies the subject of how we should structure our society. It seeks to answer questions such as: should we live under a theocracy or a secular state?; under a monarchy or a constitutional republic?; under majority-rule democracy or a limited government? But which social structure we need depends on which values we are trying to achieve. Thus every political philosophy presupposes answers to two basic questions: what is a worthy life, and what social factors enable or negate this value? Political philosophy aims to identify the social structure that protects the worthy activity from whatever threatens it.

Consider, for example, the perspective of Christian philosophy — the chief worldview that opposes abortion rights. A central figure in Christian philosophy, St. Augustine, proposed definite answers to the two questions I mentioned above, answers that informed his view of political authority. For Augustine, human beings as heirs to Adam are innately depraved sinners, inherently prideful and quarrelsome.² The only worthy activity is to strive for humility and peace out of love for God.³ Political authority, for Augustine, exists to restrain and punish men’s innate pride and quarrelsomeness, and thereby to induce humility.⁴ Notably, Augustine justifies slavery on the same grounds.⁵

Enlightenment philosophers who developed the doctrine of individual rights took up an opposite position from Augustine on those two basic questions of political philosophy. In seventeenth-century England, John Locke was the first to most explicitly defend the concept of individual rights, and his account notably addresses each of the same two basic questions.⁶ Individual rights, for Locke, designate boundaries around the lives of individuals to protect worthy activities against a certain social evil. Identifying the activities he thought worthy will help show how far his concerns were from those that motivated the essentially Augustinian opposition to abortion rights.

For Locke, rights protect the activity of “the industrious and the rational.”⁷ Human industriousness, including “Invention and Arts,” adds enormous value to barren nature.⁸ It is the human faculty of reason that enables one to acquire knowledge and make these improvements to nature to benefit one’s life.⁹ Property, for Locke, is the material resources one separates from nature through one’s rational industry.¹⁰ Locke’s entire Essay concerning Human Understanding details the central Enlightenment-era focus he places on the value of reasoning based on the senses to discover everything we need “for the conveniences of life and information of virtue.”¹¹ Obviously, the pursuit of industry, property, and knowledge are activities of fully grown adults.

From what must this worthwhile activity be protected? For Locke, rights are violated by one and only one social evil: the use of physical force that plunders private possessions and silences personal opinions. The theory is one of individual rights because it identifies the sphere of physical and intellectual activity each individual must be able to fence off from the “restraint and violence” of others.¹² The “chief end” of political society is the “preservation of Property” (which includes one’s “Life, Liberty and Estate”).¹³¹⁴ Notably for Locke, this includes even the freedom to practice a variety of religions: he famously argues in his Letter concerning Toleration for the protection of the intellectual freedom cherished by the Enlightenment. Obviously, protecting private property and personal opinions from marauders is an adult concern about very adult problems.

Locke’s theory famously influenced the American Revolution, not just in the political aims of the founders but in the very fact that he supported the idea of a right to revolution against governments that violated individual rights. In this respect alone the contrast between his political philosophy and Augustine’s is stark. The very idea that grown men bridled by a tyrant should stand up to resist being treated as children is the expression of a view of life that cherishes pride and self-esteem, not humility.

And American founders did stand up, celebrating rights that protect and express the same self-esteem. Jefferson’s Declaration of Independence proclaimed the rights of an individual to life, liberty, and the pursuit of happiness. It laments how Great Britain had restricted colonists’ ability to govern themselves and to live by their own means, by sending out “swarms of officers to harass our people, and eat out their substance,” “cutting off our Trade with all Parts of the World,” and most famously “Imposing taxes on us without our Consent.” Jefferson and the Founders wanted to protect individuals’ ability to profit from industry and trade with each other from the plunder of thieves.

Madison’s Bill of Rights explicitly enshrines the individual rights to the freedom of speech, to free assembly, to the free exercise of religion. These rights protect the Enlightenment value of rational knowledge. To succeed in reaching the truth, individuals have to be free to explore and experiment with different ideas, and to debate and disagree with others, even the majority. Individual rights protect the possibility of this disagreement, of disassociation of the individual from the rest of society. They protect this possibility from those who would censor books and speeches, break up meetings, and burn heretics at the stake. They protect the Lockes of the world from its Augustines.

Enlightenment philosophers were trying to solve a problem about how to structure a society that would unleash the rational, industrious activity of individuals, the fountainhead of all human values. On the one hand, that activity requires a social setting: it requires a concentration of enough people to enable division of labor, trade, and the accumulation of knowledge. On the other hand, it’s precisely such a setting that threatens these values, as deviant members of society can now maraud against and victimize their neighbors who are thinkers and producers. The central problem is: how can men gain the values of society while at the same time avoiding its chief evil, the use of physical violence? The concept of “individual rights” deployed by a proper government is the solution.

That the historical concept of “individual rights” could ever protect abortion rights would come as a surprise to those familiar with the Dobbs v. Jackson Women’s Health Organization decision that overturned Roe v. Wade. The Dobbs decision is correct, of course, that no explicit “right to abortion” is enumerated in the Constitution. The Court complains that the right to liberty enumerated in the 14th Amendment is too “capacious” to underpin a right to abortion, arguing that liberties are protected by the 14th Amendment only when they are “deeply rooted in this Nation’s history and tradition.”¹⁵ It finds that many states outlawed abortion at the time the 14th Amendment was passed, and concludes that the right to abortion is not so rooted.

But the Court did not look deeply enough into the philosophical roots of the Constitution, the principle of individual rights, which we have now surveyed. Enlightenment philosophers may never have anticipated how their idea applied to questions about abortion. But if we understand their idea’s logic, it does in fact imply both that a woman’s right to reproductive freedom is as inalienable as a colonist’s right to liberty, and that an embryo has no such rights.

Unlike her Enlightenment predecessors, Ayn Rand applied her understanding of the concept of “individual rights” directly to the abortion controversy. She summarized her understanding with a succinct definition: “A ‘right’ is a moral principle defining and sanctioning a man’s freedom of action in a social context.”¹⁶ This highlights the same two basic questions addressed by the Enlightenment view of rights. Rights sanction freedom, i.e., they regard it as morally worthy: individuals need to be free to engage in the virtuous pursuit of happiness.¹⁷ And rights sanction freedom of action: individuals need to be free from the forceful interference of others, free to act on the judgment of their own minds in their pursuit of happiness.¹⁸

For these reasons, Rand understood how the roots of the concept of individual rights, a concept developed to solve adult socio-political problems, could not apply to embryos: she was an unqualified defender of the right to abortion.¹⁹

Why individual rights belong unquestionably to the woman

To see how the concept of “individual rights” applies to the abortion controversy, consider the story of a particular individual.

Emily was a college junior in a long-term relationship with her boyfriend when she discovered that she was pregnant.²⁰ She realized that even though one day she wanted to have children, her boyfriend was manipulative and that she couldn’t have a child with a man like him. She decided to have an abortion.

Emily’s right to choose an abortion is protected by every one of the individual rights in the Declaration of Independence. Ayn Rand’s philosophy makes especially clear why.

In Rand’s view, the fundamental individual right is the right to life. But she means something very different from the conventional understanding, the mere right not to be killed:

Life is a process of self-sustaining and self-generated action; the right to life means the right to engage in self-sustaining and self-generated action — which means, the freedom to take all the actions required by the nature of a rational being for the support, the furtherance, the fulfillment and the enjoyment of his own life. (Such is the meaning of the right to life, liberty, and the pursuit of happiness.)²¹

Human life, in this view, is more than the simple avoidance of death, and more than the living activities we share with other living organisms, such as cellular metabolism or a heartbeat. It means the active, rational pursuit and creation of material and intellectual values.

This means that Emily’s actual right to life was at stake in her decision to have an abortion, even if having the child would not have killed her. Of course the right to abortion protects a woman’s life in emergency situations in which complications of late-stage pregnancy could kill her. But human life isn’t lived just by avoiding disasters and maintaining a pulse.

The right to human life means the right to “take all the actions required by the nature of a rational being for the support, the furtherance, the fulfillment and the enjoyment of [her] own life.”²² Emily’s pursuit of a human life meant going after the values of career, romance and (in her case) raising a family with a man she could trust. “Yeah, I probably could have made do and had an okay life if I had chosen to continue my pregnancy. But I didn’t want to.” Emily had exactly one shot at a life worth living, and an abortion helped her exercise the self-esteem needed not to throw it away.

Emily’s right to liberty is also at stake. It is her right to liberty to disagree with others’ view of her life plan and to pursue it free from their interference.

Contrary to the Supreme Court’s slant in Dobbs, “liberty” is a “capacious” concept by necessity. Protecting an individual’s ability to choose without the forceful interference of others means protecting a scope of activity as wide as the possible objects of choice, whether choices about which career to pursue, which partner to love, or whether to have children. Of course the Founders could not have anticipated all possible objects of choice. They could not have anticipated anything about the choices we now make about where to drive our cars, which web sites to visit, or which complex financial instruments to purchase, if only because the inventions these choices operate on had not yet been invented. To protect liberty is by its nature to protect the unanticipated.

“Liberty” can be used in many metaphorical, vague senses that are detached from the political concerns of the individual right to liberty (“freedom from want,” “freedom from need,” “freedom from sin”). But knowing the philosophical roots of the concept in the Enlightenment specifies the relevant, literal sense: freedom from physical force. And it is only physical force that can stop a woman from choosing an abortion, whether through legal threats of punishment directed against her doctor or against herself.

Laws forbidding abortion literally mandate forced labor or surgery. This is particularly obvious in the case of pregnancy due to rape. But it is just as true when a woman is pregnant through consensual sex. (We also consent to leaving our homes every day, which puts us at risk of being robbed. Yet the mugger who robs us still forces us to give him our wallet even if we could have avoided him by not leaving home.) A woman prevented from obtaining an abortion that she and her doctor both consent to is directly robbed of her liberty.

Liberty rights are necessary not because free choice is an end in itself, but because free choice is a prerequisite of rational, productive action. Rational thought is necessarily self-directed. A woman forced to raise a family she does not want is not flourishing even when others who want a family are. A woman who cannot end a late-term pregnancy that threatens to kill her or to leave her with a malformed child is not flourishing even when another who desperately wants children may be willing to take the risk. And liberty rights protect the possibility of sometimes making irrational, immoral choices, including incorrect choices about whether and when to have an abortion.²³

But individual rights protect the freedom to make choices, the choices one needs to make to discover the best path to happiness. Only the woman (with the help of her doctor) can decide whether an abortion is necessary for her happiness. A right to follow only one path deemed to be right for everyone would not be a right to liberty. To protect the ability to do what’s right, we need to protect by right the ability to sometimes do wrong (provided it does not violate the same rights of others).

Finally and following clearly from what we’ve just surveyed, Emily’s right to the pursuit of happiness is crucially at stake. It is her right to pursue her own happiness by deciding whether and when career and childbirth are part of her plan. Happiness is the form in which human beings experience a successful life, successful in the pursuit of their own values. But there is no “one-size-fits-all” human life. One can pursue happiness only when one is free to choose the values to populate one’s life, and free to act in that pursuit, free from the forceful interference of others.

Abortion opponents reveal their contempt for the right to the pursuit of happiness, when they disparage women like Emily as wanting to have “abortions of convenience.” This is to speak of an unwanted pregnancy as though it were in the same category as missing towels in a hotel room. But the decision to avoid childbirth is not avoiding an inconvenience. It’s making a choice that has profound ramifications for one’s body and for the long-term course of one’s life. To dismiss the decision as mere concern for “convenience” is to exhibit callous hostility toward a woman’s dreams and ambitions — to express contempt for the values that make up her life. It’s to think of human life as little more than animal life, to treat a woman’s function as breeding and humble submission, not the achievement of happiness.

Emily, like the American founders, was pursuing morally admirable values. The American colonists were actually some of the freest people in the world. They too could have lived an “okay life” under the British monarchy. But they launched a revolution in protest of taxation at a level much less burdensome than we have today, not because the British were systematically murdering them. And today we rightly celebrate and admire the courage and self-esteem it took to pursue a life fully free from these restrictions. We do not dismiss their cause as a “revolution of convenience.”

An Augustinian Christian view of the world would of course demand that Emily submit herself to her husband, her government, and an alleged god — as it would demand colonists to submit to their king. And it would not support Emily’s or the colonists’ claims to rights to life, liberty, and the pursuit of happiness. So it should be as obvious as day that abortion rights are straightforward applications of the contrasting Enlightenment–American view of individual rights.

Why the embryo is not an individual with rights

If abortion only involved aborting the growth of a tumor, most would be willing to admit that the fight to remove it could be admirable, even heroic, and so surely a choice protected by right. But the embryo is a different kind of growth. It represents a distinctive stage in the human life cycle, and this fact allows the Augustinian opponents of individual rights to sow confusion.

Even though there are differences between the tumor and the embryo, the burden of proof on the opponent of abortion is to show why the embryo is different from a tumor in such a way that gives it rights while the tumor obviously has none. I will argue that there’s no reason to think it is different in the respects that matter to the Enlightenment–American conception of individual rights.

Recalling Rand’s definition, a right “is a moral principle defining and sanctioning a man’s freedom of action in a social context.” This last part of the definition reflects the important fact (as we’ve seen) that the concept of “individual rights” was developed by political philosophers to help structure a society to protect rationality and industry from the threat of violence and thereby enable individuals’ pursuit of happiness.

But recalling this philosophical-historical context helps identify the central focus or application of the concept of “rights”: the entity that most obviously engages in rational and industrious activities, the one that seeks and needs protection from the threats of violent marauders. The paradigm case of the rights-bearer is the mature adult who is capable of choosing to act in a social context: either acting to produce and trade, or acting to interfere destructively with the lives of others.

To have a right to life obliges others not to interfere with one’s own living activity, and by the same token it obliges one not to interfere with theirs. No one who understands individual rights questions that a woman like Emily has them, while a tumor or an amoeba does not.

I hasten to say that the paradigm case of a concept is not the only case. But the further we move from the paradigm, the greater the burden of proof that it can be applied with validity. Emily, for example, is clearly capable of independent human action and so clearly has rights. So, arguably, is the newborn infant (more on this soon). But the tiny embryo is clearly not capable of rational, industrious activity. It is not capable of acting at all. Can any argument establish that it nonetheless merits the protection of individual rights as Emily clearly does?

A newly fertilized human zygote — not technically even an embryo yet — measures approximately 100 μm in diameter, about the thickness of a piece of paper. As such it would barely even be visible to the naked eye.²⁴ After four days it has divided into merely sixteen cells of similar size.²⁵ At four weeks it is still about the size of a pinhead.²⁶ At this stage, through a microscope the layman could not distinguish it from the embryo of a lizard, a chicken, or a fish, let alone from that of other mammals (it has a small tail bud).²⁷ Twenty-five days into its development, the human embryo is still barely distinguishable from monkey, pig or mouse embryos.²⁸

There’s nothing about the human embryo that would lead an ordinary observer to treat it any differently from other animals, which few but a handful of activists think have rights.

With advanced biochemistry and genetics we can identify the human DNA of the embryo, indicating its biological species. Of course we can also tell the same from an analysis of the growing tumor, and from the corpse the tumor helps create. The embryo’s human DNA at most tells us that it has the potential to become an individual human being, not that it will actually be born. Even on the most optimistic assumptions, only about 50 percent of fertilized ova ever come to term, making their potential only modest.²⁹ Just as an acorn is not an oak, a potential individual human being is not an actual individual human being. And clearly mere potential humanity is not enough to generate rights: even unfertilized human ova and human sperm have the potential, in the right circumstances, to develop and be born. Yet no one thinks either has any rights.

Of course the human embryo is individualized in many ways. It differs from other embryos in microscopic shape and size and obviously in location. No one thinks uniqueness in these respects generates rights: grains of sand on the beach are also “individual” in the same way. Many embryos of course also have a unique human genetic code, but this is also not the kind of individuality that generates individual rights. Many identical twins do not have unique DNA, and yet we think they have individual rights.³⁰

What kind of individuation matters for individual rights? We have already answered this question. Rights solve the problem of how to preserve the values of social existence against its evils by drawing spheres of protection around the lives of individuals. They are individual rights because they enable individuals who can come into conflict to nonetheless live separate lives. Rights therefore apply only to entities actually capable of living separate lives, those actually capable of independent action.

Yet an embryo is biologically incapable of living independently from its mother: it is not physically or physiologically individualized from her. This fertilized embryo can’t even move inside the womb, let alone move around in a social context.

Another perspective on the same point: Enlightenment philosophers devised the concept of rights to enable the life of individuals in society by preventing and/or resolving the conflicts that loom in social life. A mugger wants the wallet of a victim, but the victim wants to keep it. The victim’s right to property resolves this conflict: it says the justice is on his side, not on the side of the mugger. If the mugger takes the wallet anyway, the government can take it back and jail him to prevent future conflicts.

By contrast, where there is no preventable or resolvable conflict, the concept of “rights” is inapplicable. Because the embryo is inextricably dependent on and thus a burden to the woman, there is no resolvable conflict if the woman does not want a child. The embryo cannot be instructed to stop parasitizing the woman. The woman cannot leave the embryo to its own devices; as long as she is pregnant she is its device.

To underscore the point: when Locke formulated the doctrine of individual rights and Jefferson and Madison implemented it in the form of a new government, they were not thinking about biochemistry or anything remotely related to developmental potential of microscopic entities. They knew some things about childbirth, but for them any questions about the relation of embryo to uterus were far removed from the problems necessitating the concept of individual rights. They were trying to identify the grand-scale political conditions needed to encourage thriving human social life, not questions of biological classification. The focus of individual rights is individuals who can and should live separately from each other in society, not entities who cannot by their biological nature be detached as long as one of them remains in existence.

The burden of proof to establish that the embryo has individual rights cannot be shouldered.

That’s true especially because to pretend to extend the concept to an embryo would violate the rights of a paradigm rights-bearer: a woman like Emily who is its host. She clearly is an individual human being who can and must live separately from other individuals in society. To pretend that the embryo has rights and to seek to protect them would violate the clear rights of the fully grown woman. Thus extending the doctrine of rights to embryos cannot be an extension of the Enlightenment theory, because it negates what’s relevant about the data that gave rise to the theory. It makes a grown woman unfree to act as she would be to remove a tumor in order to preserve and advance her happiness. It would allow others to physically stop her from acting to pursue her happiness, and even to punish her if she tries to evade them. It would enslave the actual living, breathing, acting, thinking, feeling, hoping, dreaming individual woman to a mere potential that lives only as a nearly microscopic cellular metabolizer, but does not even breathe, let alone hope or dream. It would sacrifice human life to the merely proto or sub-human.

This is why Ayn Rand’s philosophy upholds the right to abortion.³¹ The woman is an individual human being with rights; the embryo, like the tumor of a cancer patient, is not.

Where rights begin to apply

If there’s no reason to think a newly conceived embryo has rights, at what point in human development does the concept of “rights” first apply?

Anti-abortion activists may object to our prior focus on the embryo, and make their case using the more developed fetus. But they would then face the same challenge of identifying the point at which rights develop in pregnancy, and why. This is the challenge for those who identify “viability” (when a fetus could arguably survive outside the womb) as the point at which the state could legitimately intervene to stop abortion.

This viability standard (famously applied in Roe v. Wade) is really a political compromise, not a principled stand. “Viability,” after all, is an extremely fuzzy line, since the age of viability varies with everything from the state of medical technology to a woman’s distance from the appropriate hospital. And viability is just another form of potential: the potential to be fully born and hence individualized, which does not entail being actually born and individualized.

Abortion opponents claim that if rights do not begin at conception and viability is not a principled line, then abortion rights would justify infanticide. They take this as a reductio ad absurdum of the abortion rights position. But this argument assumes there is no principled reason to draw the line at birth. They claim that there can be no important difference between the pre-natal fetus and the post-natal infant, because their level of physiological development is nearly identical. A mere difference in location, they say, cannot make a moral difference.³²

In fact, the same Enlightenment perspective that validates individual rights in the first place implicitly explains why the line of birth is a principled one and why this position rules out infanticide.

Obviously, some changes in location do make a principled moral difference. A knife located in my chest will kill me and make you a murderer; outside, it won’t. Here the change in location makes a difference because of how it impacts a moral agent. Physical separation of the infant makes a difference because of how it helps create a moral agent, by making it able to act independently from the mother or any other human being, which matters for freedom of action.

We are, quite literally, born free. Birth marks the momentous point at which a human being can begin to act autonomously because he or she is now physically and physiologically separate from the mother. It is when a human being first joins society as a separate individual. Only then is its life no longer inextricably a burden on the pregnant woman’s, who clearly is an individual. As long as she is pregnant, the fetus is an unavoidable drag on her health. Once she has given birth, she can claim no right over it as over her body.

Birth, after all, does not represent a simple change in physical location. It is a change of location that occasions the onset of a radical series of physiological changes:

With hormonal support, the lungs inflate, circulation is redirected, and the digestive system becomes active. There are also profound changes in hormonal function, metabolism, and temperature regulation. The lungs are emptied of foetal fluid and lubricants secreted to facilitate expansion so breathing can begin. (In the absence of abnormality, both very preterm and term infants will begin breathing without intervention.) The volume of blood pumped from the heart nearly doubles. There are also major structural changes to the circulatory system. Before birth, oxygen is supplied by the placenta, so blood flows from the right to left atrium of the heart without passing the lungs. Following birth, the ducts that enabled this to happen close permanently.³³

All of these changes enable the newborn to act independently, and thereby to begin to develop as a moral agent.

The author of the above also notes that it’s at birth that the infant begins crying — the usual evidence of being born alive. At birth we enter a new “‘period of reactivity,’ characterized by intense alertness and activity.” Because of exposure to light and gravity outside, the child’s mind — its most distinctively human faculty — is now able to begin to develop at the perceptual and conceptual levels. Here Locke’s epistemological perspective, that the mind is tabula rasa from birth, because knowledge depends ultimately on sensory perception, is complementary to applying his concept of individual rights to the abortion controversy: the child’s mind cannot develop unless it is first exposed to perceptible entities. From the perspective of mental development, the difference between life in utero and ex utero is a difference between night and day.

It’s true of course that the newborn can’t act in the way that grown-up adults can. They’ve not yet developed the full range of motion let alone the cognitive abilities that allow them to fend for themselves in the world. They do act independently of their parents, and as any parent will tell you, they’re rapidly learning new forms of action every day (first rolling around, then crawling, then taking the first steps). But it’s also true that they are also not the paradigm case of rights bearers. Not surprisingly, no one thinks infants have all of the same rights as adults (the right to contract, the right to vote, etc.).

So the protection of individual rights can be extended from the paradigm case of the adult to the case of the infant. But it cannot be extended before birth to cover a being inextricably dependent on the mother. As we have already discussed, rights enable the individual pursuit of happiness by setting down the socio-political conditions that make mutually beneficial coexistence possible. But there can be no “right” to zero-sum dependency, in effect the right to maintain a conflict between living beings.

Abortion opponents will object to the line of birth claiming there is no precise “magic moment” in the process of labor when a child counts as born. That is of course true: there are no magic lines drawn for us by God or nature anywhere. All life grows gradually from other life, fading into and out of existence. To form any concepts, especially of biological categories, we human beings have to draw the lines at the points that capture the biggest differences that make a difference.³⁴

Different legal jurisdictions may differ over what precisely counts as the point of birth for legal purposes. Philosophically, we can only say that jurisdictions must draw the line within the narrow range of the act of giving birth. Birth is the event that makes the biggest difference for the relevant question of political philosophy, determining the new relationship between mother and child, and hence is a precondition for the application of the concept of rights to the infant.

Abortion opponents claim that conception, in contrast to birth, offers a clear, unfuzzy line. We have already explored why conception has no principled relevance to rights. But it is worth pointing out that it is not a clear line.

The line of conception is inscrutable: even the woman cannot know immediately if she is pregnant. This makes laws concerning conception not objectively enforceable. Birth, by contrast, is easily observable by independent parties, and part of the reason that birth certificates are indispensable for the objective rule of law.

The line of conception is also fuzzy: the process by which genetic material merges in fertilization takes between twenty four and forty eight hours.³⁵ Birthing labor on average takes about half as much time.³⁶ There is even less of a case for the magic moment of conception than there is for birth.

It is not the Enlightenment philosophy of individual rights that leads anyone to oppose abortion rights. The fact that the infanticide objection is looking for a “magical” moment is a clue here, because the worldview it comes from is a magical one.

Individual rights vs. God-given “rights”

The idea that the embryo has “value” independent of any interests of the mother is the true remnant of a magical worldview.

The main reason there is even a patina of sense to the idea that an unwanted embryo has not only rights, but value is because religious thinkers imagine that it is somehow valuable to God. We are not meant to understand for what purpose the embryo is valuable to God. It is asserted as a matter of faith. This is the magical worldview — unsurprisingly, the worldview of Augustine — that grounds the opposition to abortion rights.

From this article of faith, it is standard to derive a case for the “rights” of the embryo. If God values the embryo and commands you not to kill it, you have a duty not to kill it, and it has a “right” not to be killed. This conception of rights as mere shadows of duties is the position held by many medieval philosophers. It is worth mentioning that both it and the mystical worldview it relies upon are fully incompatible with the Enlightenment conception of individual rights.

This is not merely because Enlightenment rationality is at odds with any claims of the supernatural. It also goes to the essential difference between pre- and post-Enlightenment moral thinking. In the Enlightenment–American conception, an individual right is not just a corollary of a duty, e.g., if one has a duty not to murder, another has a right not to be murdered. It’s not just a shadow of the prohibition of someone else’s vice. As I have explained from the beginning, in the Enlightenment conception, the moral concept doing the work is the virtue of one who claims the right to be protected; any obligations to respect his rights flow from the value of his virtuous pursuit, its value to him in the pursuit of happiness.

In the Dark Ages, European civilization was dominated ideologically by Christianity and there was not even nascent intellectual groping towards the concept of individual rights. St. Augustine justified slavery as a punishment for our sinful nature.³⁷ Even Aquinas, a more enlightened, later, medieval thinker, justified slavery on other grounds.³⁸ Both also affirmed the main political doctrine that religious political theory justified “the divine right of kings.” What of private rights? St. Ambrose thought property was granted to mankind in common, and private property only arose from vicious avarice.³⁹ Feudal lords would recognize the rights of towns and guilds, but only as communities and not as individuals. Mankind as governed by the Pope and Emperor was seen as forming a mystical union with the Body of Christ. This was nascent collectivism, the opposite of individualism.

It’s not an accident that most who oppose abortion rights are religious. The religious worldview explains the attitude that the pursuit of happiness is prideful arrogance. It explains the antipathy to the importance of sexual joy and to self-esteem. It especially explains the baseless idea that an embryo, an entity so far removed from membership in a society of individuals, could have rights.

Fundamentally it is this religious morality of the Dark Ages that drives the anti-abortion rhetoric of the “right to life.” The faith-based belief in such God-given duties should play no role in a scientific worldview or in the public policy of a secular society like the United States. It is certainly incompatible with the American conception of individual rights, which seeks to protect the ambitious achievement of virtuous producers, not mandate their servile duty to supposedly magical protoplasm.

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In every respect we have discussed, Emily is wiser than the critics of abortion rights. In describing her reasons to have an abortion, she wrote as follows:

Having an abortion reminded me that I was the one in control of my life — that despite the powerlessness I had felt for the last year and a half, I did have power; I could determine the direction of my life. I stood a little taller and walked with more conviction. I was doing something for myself! I was making a decision that was good for me.⁴⁰

That, I maintain, is the most American attitude any woman or man can have. It’s an attitude we should find morally admirable in just the same way that we admire the cancer patient who battles a tumor. We should see her as a paradigm example of an individual claiming the right to pursue her own happiness, exercising the self-esteem of the American Enlightenment, not the humility of the Dark Ages.

The faith-based belief in God-given duties is incompatible with American conception of individual rights, which seeks to protect the ambitious achievement of virtuous producers, not mandate their servile duty to supposedly magical protoplasm.

The Supreme Court overturned Roe v. Wade because it claimed that “a right to abortion is not deeply rooted in the Nation’s history and traditions.” But if the intellectual tradition the American founders drew on was the doctrine of individual rights, then it is relevant that this doctrine has logical implications that even they might not have grasped. In that respect, the original philosophy of the founders supports an absolute individual right to abortion.

Why the Right to Abortion is Sacrosanct is now available in paperback, Kindle, and audiobook formats on Amazon.

1. Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), 25.

2. St. Augustine, The City of God against the Pagans, R.W. Dyson (transl.) (Cambridge, UK: Cambridge University Press, 1998), 539 (XII, §28).

3. St. Augustine, The City of God against the Pagans, 932–40 (XIX, §11–13).

4. St. Augustine, The City of God against the Pagans, 940–42, 944–45 (XIX, §14, 16).

5. St. Augustine, The City of God against the Pagans, 942–45 (XIX, §15–16).

6. For a defense of this statement, contrary to those who claim that various medieval and Renaissance philosophers earlier defended accounts of individual rights, see my lecture at OCON 2024, “The Revolutionary, Secular Concept of Individual Rights.”

7. John Locke, Two Treatises of Government, Peter Laslett (ed.), (Cambridge, UK: Cambridge University Press, 1960), 291 (Second Treatise, §34).

8. John Locke, Two Treatises of Government, 298–99 (Second Treatise, §43–44). This stands in stark contrast to Augustine’s doctrine that man has “fallen” from an original perfection.

9. John Locke, Two Treatises of Government, 286 (Second Treatise, §26). This stands in stark contrast to Augustine’s doctrine that knowledge is a prideful sin.

10. John Locke, Two Treatises of Government, 287–88 (Second Treatise, §27). Locke’s view stands in stark contrast to Augustine’s doctrine that property is an unnatural institution resulting from sin. See Paul Weithman, “Augustine’s Political Philosophy,” in David Vincent Meconi and Eleonore Strump (eds.), The Cambridge Companion to Augustine (Second edition), (Cambridge, UK: Cambridge University Press, 2014), 237, citing Herbert A. Deane, The Political and Social Ideas of St. Augustine (New York: Columbia University Press, 1963), 104–5.

11. John Locke, Essay concerning Human Understanding, Peter H. Nidditch (ed.), (Oxford, UK: Oxford University Press, 1975), 45 (§5).

12. “[T]he end of Law is not to abolish or restrain but to preserve and enlarge Freedom; . . . . For Liberty is to be free from restraint and violence from others which cannot be, where there is no Law. . . . [It is] a Liberty to dispose, and order, as he lists, his Person, Actions, Possessions, and his whole Property, within the Allowance of those Laws under which he is and therein not to be subject to the arbitrary Will of another, but freely follow his own.” Two Treatises, 306 (Second Treatise, §57).

13. John Locke, Two Treatises of Government, 323 (Second Treatise, §87).

14. John Locke, Two Treatises of Government, 323 (Second Treatise, §85).

15. Dobbs v. Jackson Women’s Health Organization, 13.

16. Ayn Rand, “Man’s Rights,” The Virtue of Selfishness (New York: Signet, 1964), 110.

17. “A right is the moral sanction of a positive — of his freedom to act on his own judgment, for his own goals, by his own voluntary, uncoerced choice” (The Virtue of Selfishness, 110).

18. “His rights impose no obligations on them except of a negative kind: to abstain from violating his rights” (The Virtue of Selfishness, 110).

19. “An embryo has no rights. Rights do not pertain to a potential, only to an actual being. A child cannot acquire any rights until it is born. The living take precedence over the not-yet-living (or the unborn).

Abortion is a moral right — which should be left to the sole discretion of the woman involved; morally, nothing other than her wish in the matter is to be considered. Who can conceivably have the right to dictate to her what disposition she is to make of the functions of her own body?” (“Of Living Death” in The Voice of Reason: Essays in Objectivist Thought (New York: Meridian, 1989), 58–59.

20. Emily’s case is described in Shout Your Abortion, Amelia Bonow and Emily Nokes (eds.) (Oakland, CA: PM Press, 2018), 103.

21. Ayn Rand, “Man’s Rights,” 110.

22. Ayn Rand, “Man’s Rights,” 110.

23. Most healthy late-term pregnancies would be wrong to end. A woman should not have put herself through the hardship of months of pregnancy only to end it, especially when late-term abortions are also dangerous to the woman, and neither rational women nor rational doctors would normally agree to them. Of course, most actual late-term abortions that doctors agree to happen when childbirth itself is a greater threat to the life of the woman, or for malformed fetuses which would likely not survive anyway. Only .9% of all abortions happen in the third trimester (≥21 weeks’ gestation). As there are 36 weeks of gestation, it is hard to know what percentage of these are even viable (viability is at 23–24 weeks). (See Katherine Kortsmit, et al., “Abortion Surveillance — United States, 2021,” CDC Morbidity and Mortality Report, 24 (November 24, 2023), 1–29.) We have very little data about the reasons to seek post-21-week abortions, and most survey data only concerns the end of the second trimester, during which many women report not knowing earlier that they were pregnant. (See Diana Greene Foster, Katrina Kimport, “Who Seeks Abortions at or After 20 Weeks?,” Perspectives on Sexual and Reproductive Health (November 4, 2013). “Little is known about the relatively few abortions occurring in the third trimester, although late detection of fetal anomaly and increasing incidence of maternal health complications with advanced gestation suggest that reasons for abortion in the third trimester may differ from those in the second” (Foster and Kimport, Corrigendum to “Who Seeks Abortions at or After 20 Weeks?”).

24. Scott Gilbert, Developmental Biology, Sixth edition (Sunderland, MA: Sinauer Associates, 2000).

25. Yusuf S. Khan YS, Kristin M. Ackerman, Embryology, Week 1 (Treasure Island, FL: StatPearls Publishing, 2024).

26. Mark Curran, M.D., “Fetal Development,” Perinatology.com.

27. M.K. Richardson, J. Hanken, L. Selwood, G.M. Wright, R.J. Richards, C. Pieau, A. Raynaud, “Haeckel, embryos, and evolution,” Science, May 15, 1998 (280), 983–84. On the tail bud stage; see Chloe Santos, Ailish Murray, Abigail R. Marshall, Kate Metcalfe, Priyanka Narayan, Sandra C. P. de Castro, Eirini Maniou, Nicholas D. E. Greene, Gabriel L. Galea, Andrew J. Copp, “Spinal neural tube formation and regression in human embryos,” Developmental Biology, October 23, 2023 (1).

28. Andrew C. Halley, “The Tempo of Mammalian Embryogenesis: Variation in the Pace of Brain and Body Development,” Brain Behavior and Evolution 97 (1–2): 96–107.

29. See Garvin E. Jarvis, “Misjudging early embryo mortality in natural human reproduction,” F1000 Research 9 (2020).

30. See Theresa Machemer, “Many Identical Twins Actually Have Slightly Different DNA,” Smithsonianmag.com, January 13, 2021.

31. See Ben Bayer, “Ayn Rand’s Radical Case for Abortion Rights,” New Ideal, September 9, 2019.

32. See, e.g., Christopher Kaczor, “Abortion as a Human Rights Violation,” in C. Kaczor and K. Greasley (eds.), Abortion Rights; For and Against (Cambridge, UK: Cambridge University Press, 2018), 99–106.

33. Achas K. Burin, “Beyond Pragmatism: Defending the ‘Bright Line’ of Birth,” Medical Law Review, 22(4), (Autumn 2014), 494–525 (501).

34. See Ayn Rand, Introduction to Objectivist Epistemology (Meridian: New York, 1990), 9–17.

35. See Ronald Green, The Human Embryo Research Debates: Bioethics in the Vortex of Controversy (New York: Oxford University Press, 2001), ch. 2. Referenced in Steven Pinker, The Blank Slate: The Modern Denial of Human Nature (New York: Penguin Publishing Group, 2003), 224.

36. One study finds the mean total duration of labor to be 10.1 hours. In the top 5th percentile of cases it is 25.8 hours. John B. Liao, Catalin S. Buhimschi, Errol R. Norwitz, “Normal Labor: Mechanism and Duration,” Obstetrics and Gynecology Clinics of North America, 2005–6, 32(2), 145–64.

37. See St. Augustine, The City of God against the Pagans, 942–43.

38. Thomas Aquinas, Summa Theologica II-II, Question 57, Third Article, in Saint Thomas Aquinas on Law, Morality and Politics, W.P. Baumgarth and R.J. Regan (eds.), (Indianapolis, IN: Hackett Publishing Co., 1988), 141.

39. St. Ambrose, De officiis, in I.J. Davidson (transl.), Ambrose: De officiis (Oxford, UK: Oxford University Press, 2001), 194 (1.28.132), cited in Peter Brown, Through the Eye of a Needle: Wealth, the Fall of Rome, and the Making of Christianity in the West, 350–550 AD (Princeton, NJ: Princeton University Press, 2012), 131–33.

40. Shout Your Abortion, Amelia Bonow and Emily Nokes (eds.), (Oakland, CA: PM Press, 2018), 103.