Why Abortion Is No Human Right

During the drafting of the Universal Declaration of Human Rights, there was a vigorous debate about when the right to life begins.  The Commission on the Status of Women, chaired by Madame Begtrup, recommended providing for exceptions to the respect for the right to life in order to allow "the prevention of the birth of mentally handicapped children" and of children "born of parents suffering from mental illness".[1]  The representative of Chile remarked on the similarity between these proposals and Nazi legislation.  Charles Malik, a Lebanese Christian, proposed on the contrary "the right to life and to the physical integrity of every person from the moment of conception, whatever his mental or physical state."[2]  Two opposing conceptions of man and his dignity confronted one another.  Objecting that several countries permitted abortion when the life of the mother is in danger, the representative of China, supported by the Soviet Union and the United Kingdom, opposed the explicit protection of human life from conception.  Finally the text remained deliberately silent on this point.[3]  It was thereby admitted that the Universal Declaration could be interpreted as protecting life from conception or not, depending on the preference of each state.[4]  It was thereby decided not to afford explicit international protection to human life before birth.

It should be noted that at the same time, in 1948, the World Medical Association[5] took the initiative of updating the Hippocratic Oath by adding the Declaration of Geneva, in the spirit of the Charter of San Francisco.  In this text, doctors promise to "maintain the utmost respect for human life from the time of conception" and not to permit "considerations of religion, nationality, race, party politics or social standing to intervene between my duty and my patient."

This question has been the subject of vigorous debate ever since, with the promoters of birth control constantly trying to impose a universal right to abortion. 

According to the Council of Europe, the minutes of the travaux préparatoires concerning the right to life has been lost.  It is therefore no longer possible to know whether abortion was discussed or in what terms.[6]  Nonetheless, no state which took part in the drafting of the text authorised abortion at that time, and the Christian Democrat culture which was in the majority at that time was firmly opposed to it.  In 1979, there was still a majority of deputies to the Parliamentary Assembly of the Council of Europe to defend "The rights of every child to life from the moment of conception,"[7] and to emphasise a few years later that " from the moment of fertilisation of the ovule, human life develops in a continuous pattern".[8] 

In its jurisprudence, the European Court has stipulated that the Convention guarantees neither the right to have an abortion[9] nor the right to practise one[10].  It does not even grant the right to have an abortion in another country with impunity.[11]  The Court has also ruled that the prohibition of abortion does not violate the Convention.[12]  Finally, the Court has emphasised that Article 8 of the Convention, which guarantees the right to private and family life, "cannot ... be interpreted as conferring a right to abortion."[13]  There is thus no right to abortion under the European Convention.  The existence of such a right of life and death over a human being before birth would imply an absolute denial of its humanity and there is, so far, no majority within the Court to do that.  The Court has followed the ambiguous approach of the Universal Declaration, judging "it would be equally legitimate for a State to choose to consider the unborn to be such a person and to aim to protect that life"[14], just as they also have the right to make the opposite choice.  By remaining silent on the status of the human being before birth, the Court has avoided ruling on its right to life, leaving it up to each state to permit abortion or not.  This position might seem balanced but in reality its effect is much more to tolerate abortion than to protect human life before birth.  In reality, the Court has never protected a single unborn child among the millions who have been aborted.  Instead, it has condemned Ireland, Poland and Portugal for their restrictive laws on abortion.

Yet again, it was by giving preference to the private life of the mother, over the right to life of the child, that the Court brought abortion into the logic of human rights.  While recognising that the Convention does not guarantee either the right to life of the child in utero or the right of the mother to have an abortion, the Court has nonetheless ruled that abortion falls into the category of the private life of the woman as part of respect for the "person’s physical and psychological integrity."[15]  The Court then concluded that the means of access to abortion must respect the Convention if a state permits the practice, even in exceptional circumstances.  Judging these means to be too restrictive in Ireland and in Poland[16], the Court thus managed to oblige those countries to facilitate access to abortion in the name of a Convention which does not guarantee the practice! ^[17]  The Court thereby does the splits: on the one hand, it agrees that there is no right to abortion but, on the other, it pushes states to liberalise the practice.

So when one starts to scratch the surface of a decision, the juridical means used to favour abortion come to light.  To this is added, in the Irish case, the attitude of a national government of which people say it wanted the Court to find against it so that it could impose a reform for which it did not dare take responsibility itself, using the Strasbourg ruling as a pretext.  The evidence for this is that Dublin rejected a proposal from Warsaw that the two countries resist the Council of Europe's pressure together.  But this position remains fragile and is under strong attack.  Since then, the Court has ruled that frozen human embryos in vitro are not "things" but that their "parents" can, in virtue of their own  "right to individual self-determination"[18] decide to destroy them.  Destruction in vitro is only one step away from destruction in vivo.

The debate is also ongoing in the UN where the Human Rights Committee currently envisages reinterpreting the right to life, which is guaranteed in international law, to include a general obligation on all states to legalise abortion and to allow assisted suicide and euthanasia, all in the name of the right to life.[19]  So far, the UN committees have gone further than the ECHR in recognising a right to abortion by declaring, in various more or less obligatory decisions and opinions, that international law requires states to legalise abortion, at least in the case of rape and incest, where the child is handicapped or the life of the mother in danger.  Paradoxically, even though the International Convention on the Rights of the Child recognises that "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth" it is the Committee responsible for monitoring respect for this Convention which has gone the furthest in this direction.[20]  It has been accompanied in this by the Committee on the Elimination of Discrimination against Women which recommends to governments that "legislation criminalizing abortion should be amended, in order to withdraw punitive measures imposed on women who undergo abortion."[21]

In order to be able to rule in this way, the Court had to move to a new subjectivistaion: this time, it did it by making subjective and relative the definition of the human being who is the subject and beneficiary of human rights, by identifying the human being exclusively with individual consciousness.  The human being of human rights is no longer a biological being, the continuum between the embryo and the old man; it is, instead, the consciousness that it has of itself.  The human being is reduced to the mind.

For the Court, a member of the "human race" is not necessarily "a person" protected by the Convention.  This is the case for children before birth of which the Court has said "it is neither desirable, nor even possible as matters stand, to answer in the abstract the question whether the unborn child is a person,"[22] even though it does recognise that the unborn child "belongs to the human race."[23]  The unborn child belongs biologically to the human race but not yet to humanity.  The Court also adopts the distinction between personal and biological human life,[24] according to which the life of beings deprived of consciousness is said to be only a biological human life but not a personal human life worthy of protection.

But the Court refuses to determine when the transition occurs from biological life to personal life, and thus when the right to life begins.  It takes as a pretext a supposed lack of any "European consensus on the scientific and legal definition of the beginning of life,"[25] even in the case of a child killed in the womb at eight months of pregnancy,[26] as if science or law were capable of answering this question.  The Court considers that the real problem is not so much the "beginning of life", of which everyone knows that it starts at conception, but rather the beginning of personal human life.  In fact, the inability of the Court to determine at what point it would find enough mind in a body to make it a person worthy of protection is testimony to its dualist and atheist conception of the human being.  According to this conception, a child becomes human only progressively, to the extent that its mind emerges from its body.  This is the opposite of the Christian concept according to which the soul is infused by God at the moment of conception.  The threshold of humanity is therefore fixed by adults and by recognition: the child is human if I recognise myself in it.  The fixing of the threshold is quite arbitrary.  How much mind is needed to make a human?  And what is the mind of a being deprived of the faculty of speech (infans)?

Unable to say when "the beginning of life" occurs, the Court says that this is nothing but a "concept" which is the subject of a "plurality of ... views ... among the different member States."[27]  The beginning of human life, that is to say of that which constitutes humanity, is said to be subjective and relative.  It is quite an achievement for a Court of human rights not to know what is "human".

On closer examination, it turns out that the human being in itself does not exist.[28]  The human being is protected by human rights only as a prop for the mind.  The Court says that it is the "the potentiality of that being (the unborn child) and its capacity to become a person (which) require protection in the name of human dignity."  So it is not real life which is protected but life as a basis for the mind.  Only the mind is said to enjoy human dignity.

The Court's definition of the person is no longer that of the personalists.  It is a materialist and atheist definition, like that of Julian Huxley who saw in the mind the only noble and distinctive characteristic of the human animal.  A human being is a person as a result of the fact that he is animated by the mind; the foetus is not yet a person, someone in a coma is no longer really a person.  Since it does not yet have its own consciousness and will, the being which has been conceived and which is carried in a mother's womb acquires value only in proportion to the will of which it is first the object and then the subject.  Its existence thus has value according to the parental project which the adult is capable of elaborating for it, then according to the level of its own consciousness, i.e. autonomy, according to a process of progressive individualisation which carries on for a long time after birth.  The Inter-American Court of Human Rights explicitly confirmed this approach when it declared that "the protection of the right to life ... is not absolute, but rather gradual and incremental according to its development."[29]  Thus, it is not life, which humans share with the least evolved animals, but the level of individual consciousness emerging from organic life, and identified with mind, which is said to have value.  This conception of human life leads to the acceptance of neonatal infanticide, which is tolerated in Europe within a medical framework[30] - and of so-called post-natal abortion.[31]

This claim may appear excessive but it is precisely what emerges, for example, from the opinion published by six judges in an important case about abortion. Judges Rozakis, Tulkens, Fura, Hirvelä, Malinverni and Poalelungi, the first two of whom were for a long time some of the most influential judges on the European Court of Human Rights, defended the ontological and juridical inequality of human beings according to their capacities.  They wrote that, "The values protected – the rights of the foetus and the rights of a living person – are, by their nature, unequal: on the one hand there are the rights of a person already participating in social interaction in an active manner, and on the other hand there are the rights of a foetus within the mother’s body, whose life has not been definitively determined as long as the process leading to the birth is not yet complete, and whose participation in social interaction has not even started."[32]  It is true that the unequal value of the life of the mother and of that of the unborn child is general accepted; but the judges extend this inequality to all born persons when they immediately add, "It can also be argued that the rights enshrined in that text are mainly designed to protect individuals against State acts or omissions, while the former participate actively in the normal everyday life of a democratic society."  In other words, a subject enjoys rights not in virtue of his equal ontological dignity but in virtue of his participation in social life!  Such a claim is terrifying for it authorises a lesser degree of protection to persons who cannot or do not want to participate in the "normal everyday life of a democratic society".  And what does this phrase mean anyway?  Who is to adjudicate this?  Not only the weakest would be excluded from the protection of human rights, but also those who do not actively participate in social life (solitary people, members of religious communities), non-democrats[33] and those rejected by society.  Such claims are shocking because they are explicit; they explain why the jurisprudence of the Court sets up a distinction between the will (the capacity to act) and being in order to give priority to the former.

It is on basis of the same concept that the Court accepts assisted suicide and euthanasia when a person's mind is enclosed in a suffering body, or when it appears to have ceased functioning.  It was by making illegitimate inferences from the jurisprudence on abortion that the European Court of Human Rights accepted that Vincent Lambert's life should no longer be protected.[34]  Abortion opened the way for euthanasia.  In both cases, de-humanisation is the prelude to destruction.  It was also by relying on abortion that the Court imposed legislation on preimplantation genetic diagnosis. [35]  Abortion really is the matrix of deformed liberties.

Abortion: the domination of the will over being

Why is the practice of abortion ideologically so sensitive and important that it has been proclaimed, by the French National Assembly, a "fundamental right", a "universal right" and "the indispensable condition for the construction of real equality between men and women in a progressive society"?[36]

The issues raised by abortion go beyond birth control.  By transforming society's relationship to human life, this practice de-sacralises human life and deforms procreation.  Abortion is said to liberate man from his superstitious respect for nature.  Abortion therefore opens the way to the rational mastery of human life considered as a material; humanity is said to increase its capacity to fashion itself.  Humanity therefore become "master and owner of nature" in elaboration of the Cartesian project.  Pierre Simon, the principal architect of the liberalisation of contraception and abortion in France, declared in 1979, "Life as material, that is the principle of our struggle ... We need to manage it ... like an asset."[37].

Abortion breaks the icon of the respect for life.  Society thereby acquires new "liberties": scientific liberty which leads to the mastery of procreation and of life, but also sexual liberty which is facilitated by contraception and guaranteed by abortion.  There are no scientific and sexual liberties without abortion.

Through the frequency with which abortion is used, it forces society to be materialist.  It prevents us from envisaging, on pain of condemning ourselves, that the human being has individuality and a soul, before birth and independently of its state of consciousness.  This forced materialism is also perceived as a liberation which will not be complete until abortion is totally accepted: hence the refusal to listen to the suffering of women who have had abortions; hence, too, the desire to make abortion into an everyday act.

Abortion has become a dogma because, by liberating women's sexuality and procreation from the so-called serfdom of motherhood, this transgression is said to emancipate humanity from the sexual and reproductive instinct and raises it above what remains of its animal nature.  By this means, humanity is said to be able to progress in the process of evolution which leads from matter to mind.

Abortion is also said to be necessary to the extent that it disproportionately reduces children born to the poorest women, i.e. to the least "evolved" populations.  Abortion thereby has the social advantage of reducing poverty at source.  Long before it became a feminist cause, abortion was supported by materialism, atheism,[38] Malthusianism and eugenics.  From the 18th century onwards, and even more so at the turn of the 19^th and 20^th centuries, the militant ideologues of abortion wanted to change man and society by legalising abortion.[39]  Thus, the true purpose of abortion is not so much birth control but instead the rational control of the sexual instinct, of procreation and of life, as a vector for the progress of humanity.  By contrast, the opponents of abortion are said to be idolators of life and the enemies of progress because they refuse to accept that life is only matter, while consciousness is mind, the defining characteristic of man and his only true good.

Thus, the idea that abortion is a freedom has asserted itself with the erosion of the understanding of the value of human life before birth, and with the concomitant assertion of the value of the individual will.  In reality, this double movement is one and the same thing: it is the fundamental philosophical choice of the growing domination of the will over being, in a culture which is losing its sense of metaphysics, i.e. the understanding of the identity and of the value of being itself.  This choice is the result of the abandonment of what remained of that metaphysical understanding which still accorded a certain dignity to human life before birth.

The freedom to practise abortion is in fact a power: life is put under the power of the will, that is, of the mind.  In this, abortion is said to exalt humanity and its absolute domination of matter over life.  The more abortion is free, the more absolute will be the domination over life, and the more humanity will raise itself up. [40]  This is why the French National Assembly described abortion as "the indispensable condition for a progressive society."

Abortion can never be a “fundamental right”

In many countries, abortion is decriminalised under certain conditions, but because of these very conditions, abortion remains a derogation to the principle of the right to life. One cannot abort “freely”, as one would exercise a true freedom or a true right.

On the European level, one can often see a strong political will to facilitate access to abortion, in particular in countries where it is prohibited. Nevertheless, and it is important to underline it, there is still a logic of derogation: abortion is not a right, nor a “good”, but a tolerance, a lesser evil.

There is a fundamental reason to this: abortion will always be different from a right. Indeed, a right aims at guaranteeing the faculty of a person to act for his/her good as a human being. Everything that we recognise as fundamental rights: think, associate, pray, speak, are faculties through which every person expresses his humanity. These are faculties that animals do not have and that define “human” rights. The fundamental rights protect the exercise of these noble faculties, specifically human. They protect what every person realises his or her humanity in. Which means that by exercising these fundamental rights, man becomes more human.

But can one say of a woman that she is more accomplished and more human when she has an abortion, like she does when she studies, gets married or when she express herself ? Between a fundamental right and abortion, the difference in nature is obvious. Thus abortion can never be a fundamental right. Also, the resolution adopted by the French MPs to celebrate the 40^th anniversary of the legalization of abortion is quite striking. While the first article presents abortion as a universal right, the second article recommends the prevention of it. But if abortion truly were a fundamental right, it would be absurd and unfair to prevent its use. It is precisely because it is tolerated as a lesser evil that it should be the object of a policy of prevention.

Abortion is not a freedom

Everyone knows the phrase that reads that one person’s freedom ends where another person’s freedom starts. Freedom has no internal limitations, it is not limited by its object but solely by exterior circumstances. For example: thought is limitless; what limits it are the circumstances through which it is led to be exteriorized and expressed. Freedom is an expression of the person that can only be limited from outside. As regards abortion, its practise is, on the contrary, limited from the inside: it is its object itself, embryo of foetus, which constitutes its first limit. To say that abortion is a freedom would imply to annihilate the value of the human foetus or embryo. Namely, one can only assert a right to abortion if the embryo or the foetus are nothing. Hence the debates on the status of the embryo. As soon as one recognises a value per se to the embryo, even a faint one, then one cannot say that abortion is a freedom. The same is true regarding another inner limit to abortion : the availability of a medical practitioner agreeing to perform it.

Hence abortion can never be a “fundamental right” nor a “freedom”.

Beyond, the sufferings that it brings to most of the women who make the mistake of resorting to it are enough to show that it is an evil, and that it needs to be prevented. There is no point in disguising it as a good, a right or a freedom.

____

[1] Proposal of the Working Group of the Commission on the Status of Women, Travaux préparatoires, E/CN.4/SR.35, p. 1266.

[2] Travaux préparatoires, E/CN.4/AC.1/SR.35, p. 1535. The International Federation of Christian Trades Unions also made a similar proposal.

[3] Travaux préparatoires, E/CN.6/SR.28, p. 1355.

[4] Travaux préparatoires, E/CN.4/AC.1/SR.35, p. 1535.

[5] The World Medical Association is a confederation of professional bodies created in 1947, in the spirit of the Charter of the United Nations and of the Nuremberg trials, "to ensure the independence of physicians, and to work for the highest possible standards of ethical behaviour and care by physicians, at all times. This was particularly important to physicians after the Second World War ..."

 "ensure the independence of doctors and the highest possible standards of ethics and car - measures which are particularly important for doctors after the Second World War." www.wma.net.

[6] This is what the European Court says on the page of its web site where it publishes the travaux préparatoires article by article.

[7] Recommendation 874 (1979) of the Parliamentary Assembly of the Council of Europe (PACE) of 4 October 1979 on a European Charter for the Rights of the Child.

[8] PACE, Recommandation 1046 (1986).

[9] ECHR, Silva Monteiro Martins Ribeiro v. Portugal, n° 16471/02, 26 October 2004.

[10] ECHR, Jean-Jacques Amy v. Belgium, n° 11684/85, 5 October 1988.

[11] ECHR, Jerzy Tokarczyk v. Poland, n° 51792/99, 31 January 2002.

[12] See especially in A, B & C v. Ireland [GC], the applicants A and B who unsuccessfully challenged the prohibition against abortion on the grounds of health and well-being.

[13] ECHR, A, B & C v. Ireland [GC], 2010, op. cit., § 214 ; ECHR, P. & S. v. Poland, n° 57375/08, 30 October 2012, § 96.

[14] ECHR, A, B &  C v. Ireland [GC], 2010, op. cit., § 222, confirming ECHR, Vo v. France [GC], n° 53924/00, 8 July 2004.

[15] ECHR, Tysiac v. Poland, n° 5410/03, 20 March 2007, § 107.

[16] In the cases of Ireland and Poland, the Court ruled that access to abortion in exceptional circumstances is so difficult that it subjects women to agonising uncertainty which is said to constitute a violation of the Convention.

[17]  ECHR, A, B & C v. Ireland [GC], 2010, op. cit.; ECHR, R.R. v. Poland, n° 27617/04, 26 May 2011.

[18] ECHR, Parrillo v. Italy [GC], n° 46470/11, 27 August 2015, § 188.

[19] See the project of a general observation no 36 on Article 6 of the International Covenant on Civil and Political Rights, concerning the right to life, § 9 et 10.

[20] See especially the final observations of the Committee on the Rights of the Child on the respect of the Convention on the Rights of the Child by States of Palau (2001, CRC/C/15/Add.149), Kenya (2007, CRC/C/KEN/CO/219) or the Holy See (2014, CRC/C/VAT/CO/2).

[21] Report of the Committee on the Elimination of Discrimination Against Women, Twentieth Session 19 January - 5 February 1999, Twenty-First Session, 7 - 25 June 1999, General Assembly Official Records Fifty-fourth session, Supplement No. 38 (A/54/38/Rev.1), p. 7

[22] ECHR, Case of VO v. France,  2004, op. cit., § 85.

[23] Ibid., § 84.

[24] Bernard SCHUMACHER, Tout être humain est-il une personne ? : Controverse autour de la définition de la personne dans la discussion éthique médicale contemporaine, Laval théologique et philosophique, vol. 61, n° 1, February 2005, pp. 107-134.

[25] ECHR, Vo v. France, 2004, op. cit., § 82.

[26] ECHR, Mehmet Sentürk et Bekir Sentürk v. Turkey, n^o 13423/09, 9 April 2013.

[27] ECHR, Parrillo v. Italy [GC], 2015, op. cit., § 180.

[28] ECHR,Vo v. France [GC], 2004, op. cit., § 84.

[29] Inter-American Court of Human Rights, Artavia Murillo and Others v. Costa Rica. 28 November 2012. Séries C No. 257, § 264.

[30] Claire DE LA HOUGUE & Grégor PUPPINCK, Enfants survivant à l’avortement et infanticides en Europe, Revue générale de droit médical, n° 57, 2015, pp. 111-134.

[31] A. GIUBILINI and F. MINERVA, After-birth abortion: why should the baby live?, Journal of Medical Ethics, 2012.

[32] A, B and C v. Ireland [GC], 2010, op. cit., Joint Partly Dissenting Opinion of Judges Rozakis, Tulkens, Fura, Hirvelä, Malinverni and Poalelungi.

[33] Grégor PUPPINCK & Claire DE LA HOUGUE, Commentaire de l’arrêt S.H. v. Austria, 2012.

[34] Grégor PUPPINCK & Claire DE LA HOUGUE, L’"effrayant” arrêt Lambert – Commentaire de l’arrêt ECHR, Lambert and Others contre France, GC, n°46043/14, 5 June 2015, Revue générale de droit médical, n°56, 2015.

[35] Costa & Pavan v. Italy, 2012, op. cit..

[36] Resolution of 6 November 2014. Forty years earlier, Simone Veil had declared in the same National Assembly that abortion "is always and will always be a tragedy (un drame)" and that one had to "avoid at all costs" that her law would create "a right to abortion".

[37] Pierre SIMON, De la vie avant toute chose, (Paris: Mazarine, 1979), pp. 84 - 85.

[38] Georges HARDY (Gabriel GIROUD), La question de population et le problème sexuel. L’avortement, sa nécessité, ses procédés, ses dangers (Paris: Librairie scientifique, 1919).

[39] Margaret SANGER, The Pivot of Civilization, (New York, 1922) introduction by H. G. Wells. Republished by Humanity Books in the series Classics in Women’s Studies, 2003.

[40] This power manifests itself including in the standard line on abortion which usually comes down to a unilateral affirmation of individual will over another life, as demonstrated by slogans such as "a child if I want, when I want", "My body belongs to me", "Abortion: my body, my choice, my right", all of which can be summarised as "me, me, me".