Part 1 – Determining The Rights At Issue and The Extent of Infringement on The Rights at Issue

What makes abortion so difficult is the challenge of balancing the rights of the pregnant woman and the rights of the child growing in her womb.

To enter into the proposed solution more fruitfully, we need to first define:

1. The rights at issue
2. The extent of the infringement on the rights at issue.

The Rights At Issue

The rights at issue in the issue of abortion are the rights not to be deprived of life and liberty without the due process of law.

From the side of the woman seeking an abortion, “forced continuation of pregnancy” is an infringement on her right to liberty.

From the side of the child who will be the victim of abortion, abortion is an infringement on the child’s right to life.

The Extent of The Infringement on The Woman’s Right to Liberty

With regards to the infringement on the woman’s right to liberty, the “forced continuation of pregnancy” does not completely deprive her of the right to liberty [for example, as in slavery], but would rather entail the temporary and limited infringement on her right to liberty.

1. It is a temporary infringement on the woman’s liberty because the infringement on liberty extends for a maximum period equivalent to the duration of her pregnancy [nine months]. The woman has no limitations on her liberty before or after this period. And practically speaking, the limitation on her liberty is shorter than nine months and is equivalent to the time from which she would have had the abortion to the time she delivers the child.
2. Why the infringement on her liberty is limited, is because the woman is not deprived of all her liberty during this period. The woman retains the vast majority [you could even say 99%] of her liberty during pregnancy. For example, the woman can choose whom she enters into relationships with, what things she buys, what things she sells, what career she pursues, if to study, what to study, if to work, where to work, how she entertains herself, what she eats, what she wears, what music she listens to, where she stays, with whom she stays, what car she drives, whether to go on vacation, where to go on vacation, when she sleeps etc. There is only one thing that the woman is prohibited from doing – and that is hurting or killing the baby growing in your womb. 

The Extent of The Infringement on The Child’s Right to Life

With regards to the extent of infringement on the child’s right to life, abortion deprives the child completely and permanently of the child’s right to life.

1. There is no partial infringement on the child’s life. The child is deprived of life in the fullest sense possible. The child goes from being a living baby to being a dead baby.
2. The infringement on the child’s right to life is permanent. Once the life of the child is taken away, the life of the child is never restored and can never be restored.

Therefore, the child is deprived of the right to life completely and permanently.

Summary of The Extent of Infringement on Rights

Therefore, the child is deprived of the right to life completely and irrevocably, whereas the woman is merely limited in her liberty partially and temporarily.

The extent of infringement on the rights of the child [in the case of abortion] is much greater in magnitude and effect than the extent of infringement on the rights of the woman [in the case of a continuation of pregnancy].

Therefore to deprive the child of life is a greater injustice than to temporary limit the woman’s liberty in one sphere of her life.

Part 2 – Determining The Legitimacy of Infringing on The Rights at Issue

Is it Legitimate To Deprive A Person of Life?

If one is deprived of life, one is also by default deprived of liberty, because without life it is not possible to enjoy or to exercise liberty.

Further, the deprivation of liberty that one experiences [when one is deprived of life] is complete in its scope [one is deprived of every avenue for the exercise of liberty] and permanent in its extent.

To deprive one of life is not only to deprive one of life and liberty, but is also to deprive one of every other right completely and permanently.

Therefore, life is a greater value than liberty [irrespective of assertions to the contrary], because the enjoyment and exercise of every right [including the right to liberty] is contingent on the existence of life.

Therefore, it is not legitimate to deprive a person of the right to life without serious reason [and therefore, without due process].

The child growing in the woman’s womb exercised no agency and no choice in bringing about the pregnancy of the woman. Therefore, it is not legitimate to end the life of the child as a means to rectify challenges faced by the woman.

Is it Legitimate To Restrict Liberty Temporarily and in a Limited Fashion?

Supporters of abortion like to characterize a possible prohibition of abortion as the complete deprivation of liberty. However, it is important to note that this is incorrect. A prohibition of abortion is not a complete deprivation of liberty, but at best a temporary and extremely limited restriction on liberty.

But the counter argument would be that any restriction on liberty is not permissible. However, this is incorrect.

There exists all sort of restrictions on liberty (e.g., Not being allowed to drive before a certain age or to do drugs or alcohol or smoke before a certain age).

As a matter of general principle, every individual’s [whether man or woman] liberty is limited; in the sense that the exercise of liberty does not extend to a right to harm or end the life of another innocent human being. This is a principle that is consistent in law and in every aspect of human life.

This is the very same principle that is at stake in abortion. The only limitation on liberty in pregnancy is the limitation in terms of not being allowed to harm or end the life of the innocent human being growing in the woman’s womb.

Therefore, a prohibition of abortion is entirely legitimate, is consistent with the broader body of law, and is in fact not even the infringement on liberty [in principle], but merely the consistent application of general legal principle to pregnancy.

Part 3 – Additional Considerations

Pregnancy Is Unlike Any Other Situation

It is true that pregnancy is unlike any other situation.

But the principles of law do not change for every situation. Contrary to this, principles are to be applied consistently to every situation.

We have seen above that a prohibition of abortion is consistent with the legal principles as applied throughout the body of law and that legalized abortion is in conflict with these legal principles.

Additional Considerations on The Fairness of Prohibiting Abortion – A Consideration of Agency, Rights and Responsibilities

To have agency, is to have responsibilities in addition to rights [It is only people without agency who have rights without responsibilities].

1. The woman is personally responsible for the child growing in her womb [in all situations, excluding rape and incest] and therefore it is fair to impute responsibility to the woman for the welfare of the child.  The woman exercised agency and choice in bringing about the life of the child growing in her womb [and as a responsible adult must therefore assume responsibility for the child’s well-being].
2. The child exercised no agency or no choice in bringing about the situation where it is living in the woman’s womb. It is there not fair to deprive the child of life to resolve a matter in which the child had no agency.

The responsibility inherent in pregnancy is consistent with any other responsibility that people with agency have: people with agency bear responsibility for the consequences of their actions and cannot free themselves from responsibility by ending the life of an innocent person.

Abortion as A Step Too Far

Adults by nature also have a responsibility towards a baby even after the baby is born. But that responsibility has been stripped away in modern society and adults can give the baby up for adoption.

Perhaps this is the point at which the liberty of the adult can be balanced with the right to life of the child [so that both rights are fully guaranteed], because although the child is deprived of the care which is due to him/her from his/her parents, at least the child is not deprived of life.

Further to this, it might also be in the interest of the child to be brought up by parents who cherish the child, rather than parents who are not able to accept the responsibility for the child and therefore whose interest towards the welfare of the child is compromised.

Be that as it may, it is a step too far to say that adults must also be able to kill their babies, because adults cannot assume responsibility for the natural and well known consequences of their actions for a relatively short period of nine months.

What About Social Issues That Women Encounter As A Result Of Unintended Pregnancy

Many woman who are pregnant occasionally encounter serious social pressure and related issues.

However, the baby in the womb is not the cause for the social issues pregnant women encounter.

Social issues that women encounter are not to be resolved by courts legitimizing the killing of innocent persons who are in no way personally responsible for the social issues women encounter as a result of pregnancy.

Social issues that woman encounter are not to be resolved by twisting legal principle and by being unjust to the innocent.

Rather, the social issues that women encounter are to be resolved by social or legislative action aimed at reducing or eliminating these issues and not by depriving innocent human beings of life.

Part 4 – Conclusion

1. Abortion entails permanently depriving the child of every right [because every right is contingent on the existence of life], whereas a prohibition of abortion – in comparison – merely entails the short term and extremely limited restriction on one aspect of the right to liberty of the woman.
   • Therefore, abortion disproportionately, permanently and irrevocably deprives the child of every right, whereas a prohibition of abortion better balances the rights of the mother and the child [as it preserves the vast majority of the rights of both mother and child].

2. Abortion is entirely inconsistent with the body of law [an entirely unique legal principle that is entirely at odds with the larger body of jurisprudence], as in no other area of law is one person allowed to end the life of another innocent person [whether it be in the name of a full exercise of liberty, a right to privacy or to relieve oneself of responsibility for the natural and well known consequences of one’s own actions].

3. The prohibition of abortion is entirely consistent with the body of law [with the limitations on rights as applied in every other sphere of life and law]. Prohibiting abortion would not entail any unique infringement on the liberty of a woman, but rather entails the consistent application of the principle that governs the limitation of liberties that every person endures [that liberty does not entail a person to deprive another person of life or to harm them]. Therefore, it is legitimate to limit the right to liberty to prevent bodily harm to another person.

4. The woman is responsible for the fact that she is pregnant (and the child bears no responsibility for it). Therefore:
   • It is illegitimate to permanently and irrevocably deprive the child of every right for no fault of its own
   • It is entirely consistent with the doctrine of responsibility as well as fair, that the woman (especially as an adult) bear responsibility [at least for nine months] for the natural and well-known consequences of her actions (i.e., for the welfare of the child as long as the child is dependent on her) and that she does not seek to penalize another innocent human being so as to avoid the well known consequences of her actions.

5. There is no argument that I am aware of as to why the following aspects (the consistent application of legal principle, responsibility for actions and fairness) must not be applied to pregnancy and therefore it is justified that these aspects govern the application of the law to pregnancy.

6. It is extremely crucial (and indispensable) for the consistent application of legal principle and for ensuring that all persons enjoy the equal protection of the laws, that ending the life of the preborn (permanently and irrevocably depriving the preborn of every right) for no fault of its own is prohibited.