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Human Rights or Person Rights

The views expressed by the author do not necessarily reflect those of the Abortion Museum. However, we do post content from both sides of the issue in order to foster intelligent discourse.

A picture of the "No Kings" protest rally.

The concept of “Human rights” is a major distinction between the old world and the modern world. Many trace the inception of this weighty concept to the Magna Carta of the 13th century. Major statements and variations on human rights have occurred in the French and American Revolutions. And in the contemporary era, the United Nations has several influential statements about Human Rights. What has not been established is “Person Rights.”


Human Rights In History

Now here’s the problem: If human rights are defined in a way that excludes whole demographics of humanity, then they are not rightly called “human” rights. The Magna Carta was infamous for its aristocratic bias, treating social classes as grounds for discrimination. It was better than nothing, but neither was it the kind of robust “human rights” edict we would expect for humanity today. In the U.S., we’ve battled over which human beings are endowed with those illustrious “unalienable” rights noted in the Declaration of Independence. What about women and children? Do adult slaves count? Can we grant partial standing, as “3/5ths of a person,” for slaves? But despite the confusing legal and judicial history wrestling with slavery, women’s rights, and child labor laws, we still had the seeds of freedom planted in the foundation of these United States.


"We hold these truths to be self-evident that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness."            Preamble to The Declaration of Independence (1776)

The “human” in “human rights”, over the years, has developed as an inclusive framing guarding against various kinds of oppression, based on color, gender, age, socio-economic class, or, in the case of abortion, the wrong developmental stage. It would be a mistake to say, “All men are created equal, but women and children aren’t men.” The founding fathers have been understood, rightly so, to be referring not simply to “men” but generically to “humans.” Properly understood, the fathers were saying “all human beings are created equal.”



Human vs. Person

Roe v. Wade (1973) and Doe v. Bolton (1973), however, forged a stark dividing line between “human” and “person,” or to use its original language, the “the potentiality of human life.”[1] The Roe court prefaced this ambiguous phrase by saying earlier that:            

“We [the Supreme Court] need not resolve the difficult question of when [human] life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”[2]

It should be noted that the author, Justice Blackmun, listed the disciplines of “medicine, philosophy, and theology” with no mention of (natural) science or related subfields like biology, embryology, fetology, or zoology. Yet there has been no serious scientific debate in the last hundred years about whether human life begins at conception. We’ve known for at least a hundred years before the Roe and Doe decisions that new human life begins at conception. The conception definition was common knowledge across the sciences, even while Blackmun said all these non-science fields are “unable to arrive at any consensus.” This maneuver is probably not an accident since the biological sciences have been well aware of sexual reproduction, genetics, and human conception, and this purported “mystery” is more likely some combination of willful ignorance and obfuscation. Most everyone knew what the Roe and Doe court was saying: “Nobody knows!”              There is no longer any medical or scientific debate over what species the human conceptus or zygote is from conception forward. It is homo sapiens, and therefore it is classed as “human” or, more carefully stated, a “human being.” Note that we’re not talking simply about human tissue, or human cells, or human DNA. We’re talking about a distinct human organism, a living autonomous individual, biologically distinct from his or her parents, yet genetically related to both. The same cannot be said about a skin or tissue sample, or a cancerous tumor, or hair strands and spittle.

Additionally, we know the gestating child-in-utero is an autonomous human being from the mother because he or she has different DNA, can have a different blood type, be a different biological gender, and can even outlive the parents. The gestating child is not just an extension of the mother’s body because the mother doesn’t temporarily have 4 arms, 2 heads, a penis, and two different blood types, etc. And, of course, it’s logically impossible for a mother to outlive herself, but her child – even while in-utero – can potentially outlive her.

The idea of “personhood”, however, is a different concept altogether. It requires some philosophical nuance, and it’s not something that can be defined ultimately through science alone. While it’s useful for many legal issues, it’s secondary to this case. We can leave aside the question of whether a fetus is a person and assume, for the sake of argument, that Roe v. Wade has already decided that legal precedent.[3]


Which Humans are we talking about here?

So, we are left then with “human” rights. And these are precisely where the right to privacy was inferred, as people must have some implicit sense of autonomy and privacy if they are to have “liberty” in any robust sense. Yet, the concept of “human rights” seems to invert and collapse on itself when we aggressively distinguish between which kinds of humans are allowed to have ANY access to human rights.

We are not talking about criminals who had rights, abused those rights, and then lost some of their rights. Nor are we talking about rights of access such as driving and marriage, where a certain level of maturation is required, perhaps with qualifying criteria like a driver’s license, proof of insurance, or in the case of marriage, not being siblings beforehand.

With children-in-utero, we are talking about a whole demographic of humanity who are denied any access to human rights – normally understood – are natural, universal, and inherent to every “created” human.[4]  We’ve all been in the same situation as those children-in-utero too. Their current state is common to all human beings. While I’ve never been a black person, or a slave, or a woman, we have all been children-in-utero. Wherever a whole class or demographic of humanity is deliberately excluded from any right to life, that exclusion cannot be on the grounds of humanity alone, since that’s what they all share. It would have to be on some other grounds, such as “personhood rights.”




Personhood Rights

Admittedly, “person/personhood rights” is not an established term. But something, outside the scope of human rights, is needed if abortion-choice advocates are going to morally fortify abortion rights without surrendering all claims to humanitarianism. Based on human rights alone, wherein one’s humanity is the moral bedrock, both mother and child are created beings (from conception onward) and both are alive. So, they both have broadly equal standing in terms of their human rights. They are “created equal” and “endowed by their Creator” with unalienable rights.[5] Practically, the right to life is the most basic of human rights, since one can hardly access the rest of their “rights” while they’re dead. An individual's life is their own possession, their most basic property. It’s theirs to keep, as long as they’re able and don’t surrender it in a capital crime, combat, etc.

Abortion advocates will continue to struggle to morally justify their abortion in light of humanitarianism. But, from an alternative ethical framework, they could justify abortion in terms of personhood (or something comparable). In terms of humanitarianism, it’s ambiguous and confusing to argue that some demographics of humanity should be excluded from a human right to life, when humanity is exactly what they share with all other human beings, and humanity is the normal grounds for granting a liberal/inclusive sense of “equal rights.”


As long as human rights are understood as universal, natural, inherent, and true for all human beings – i.e., the normal historic and conventional understanding of human rights – then abortion-rights advocates are engaging in a different project altogether.  Abortion right advocates cannot clearly, consistently, and coherently claim to be engaging in a human rights cause, in the classic sense of “human rights”, since their position rejects the humanitarian foundation of “all men [humans] are created equal.” Their project entails excluding an entire demographic by subjecting them to a fiat license to kill, such that they are denied even the most basic human right, the right to life.       If abortion-choice advocates want to hold fast to humanitarian ethics, including the “created equal” part, then they would need to show that abortion victims aren’t human. And since scientifically that would be antiquated pseudo-science at best, they can’t really do that. There is no scientific debate about whether children in utero are biologically human, and there hasn’t been a serious scientific debate about that fact since the Middle Ages.[6]

So, what option is left for abortion-choice advocates if “human rights” is not the proper grounds for establishing abortion rights? One would need to introduce an additional category such as “person rights,” and then argue on that basis that human rights are somehow subordinate to person rights (or some other comparable category). If human rights apply to all humans, as normally understood, but personhood rights are more basic than human rights, well, that could leave room for abortion-choice advocates to hold onto both humanitarian ethics and their abortion-choice position.

There is at least a legal precedent for denying rights to fetal humans on the (disputed) grounds that they are not persons. But there is no real debate over whether they are humans. Now, I would argue that fetal humans are indeed persons, but legal history and science just aren’t conclusive on that point since personhood is more philosophical than scientific.



Are personhood rights the same as human rights?

A seasoned veteran of the abortion debate might argue that “human rights” means the rights of human persons.

But that was precisely the line of argument used previously, and wrongly, to discriminate against slaves. So, its checkered past leaves it suspect today. Furthermore, it would be easy enough to just change the phrase to “person rights” or “rights of personhood” and then abandon the term “human rights” to avoid any confusion. It is not clear at all that “human rights” should be understood to exclude whole classes and demographics of humanity.

If there is a legal sense in which “human rights” is defined to include persons, that definition must go so far as to say that it ONLY includes persons – and I don’t know that there is such a legal precedent. Quite the contrary, there are several legal precedents establishing that some human rights apply to preborn children, such as the Unborn Victims of Violence Act of 2001 (H.R. 503) and the Partial Birth Abortion Ban of 2003 (18 U.S. Code 1531).


Meanwhile, if an early-stage human has any human rights, they must include the most basic of these, the prerequisite for any additional rights, that is, the right to life.  In this way, the abortion-choice advocacy is incompatible with human rights, broadly speaking, unless the advocate includes a variable to the equation that can supersede human rights, such as a new category of “person rights.” Otherwise, the pro-choice position is incompatible with human rights and, with it, humanitarian ethics.

Originally posted February 9, 2025


Endnotes


[1] Roe v. Wade, 410 U.S.. 113 (1973), sect. XI, pg. 164, at: https://supreme.justia.com/cases/federal/us/410/113/#164.



[3] One need not grant that Roe or Doe were correct. Indeed I agree with the Dobbs court in overturning Roe and Doe. But, for the sake of argument, we can suspend that point to advance an argument based on biological humanity even if the issue of “personhood” were never solved.


[4] That is, “all [humans] are created equal,” not all humans are created and become equal sometime later, after they’ve been created. See., the preamble to the Decl. of  Indep.


[5] Ibid.


[6] Ex., see, St. Thomas Aquinas, Summa Theologiae, I.118.2; III.33.2.

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