The need for protection of the natural right to life
As Aristotle explains in Book V of the Nicomachean Ethics, some things are just and fair by virtue of “nature” (by which he means reason) and others by virtue of “convention” (by which he means deliberately adopted social arrangements such as contracts and human laws). The duty I have to return what I stole from you is an example of the former; that I ought to pay income tax at 33 percent is an example of the latter. While the former flows from what is reasonable regardless of convention, the latter is reasonable precisely by virtue of convention—reasonable, that is, granted that that convention is in itself reasonable per se.
Later in history the term “right” (as in “I have the right to X”; “I have rights over Y”; “I have rights in relation to Z”) came to be used to describe the above (and other) situations of justice and fairness. Some say the terminological development was a product of Roman law, others attribute it to Ockham in the Middle Ages, and others think it was a creation of Modernity. Regardless, the concept of rights, carefully articulated by Aristotle and even more clearly by Aquinas deploying Roman law thoughts, was always there—even if and when the noun was not.
Back to my examples. Using a terminology popularized by Aquinas and clearer than Aristotle’s talk of convention, we can speak respectively of a natural right (your natural right to get back from me what I took from you, in my first situation) and a positive right (the right of the state to get that 33 percent of tax, in the second one). The former is a moral right; the latter a legal right (usually bringing with it a moral right of the same content).
Some rights have a mixed nature. They stem from reason (one could say they have a natural source or title deed) but they are measured and determined by convention, that is by legally valid positing (by legislation, contract and suchlike). Or, in other words, it is just in itself (that is by virtue of reason) that someone has a certain right but the precise dimension of that right is only the result of a determination by contract or law. This is actually the case with all natural rights in real life: they only exist in social reality as mixed rights. And this is also the case with the right to life.
So let us take the case of the “natural right to life.” Some countries recognize life as a right by stipulating legally (and sometimes constitutionally: the constitution is part of the legal system and is positive law) a “positive, constitutional right to life.” The Constitution of my country, e.g., provides for such a solution and declares that “every person has the right to have his life respected … in general, from the moment of conception” (article 75, section 22 of the Argentine Constitution, which redirects us to article 4 of the American Convention on Human Rights).
What about the U.S. Constitution? There is no such language there when it comes to “life,” but then there isn’t much rights language at all in the U.S. Constitution. Nevertheless it could be argued that, for example, when the First Amendment protects freedom of speech from state abridgment, it is recognizing the natural right to freedom of expression and transforming it too into a positive, constitutional right. This seems to be a reasonable interpretation of the First Amendment, and it is certainly the prevailing one (at least with respect to reading rights talk into the language of the amendment). The same is true about the language of other amendments.
Case in point: the Fourteenth Amendment. When it prescribes that no state shall “deprive any person of life … without due process of law” it recognizes the preexisting moral, natural right to life and gives it certain (quite scant) legal contours. The word “any” in the amendment implies that all (persons) are covered by its protection. Absent further clarification, absent a clear indication to the contrary by the amendment’s drafters, and given the reasonable presumption that, whatever the original intentions of the founders were, the Constitution is there to serve and protect everyone, “any person” ought to be interpreted—as elementary syntax unambiguously requires—to include every person: persons of Chinese descent, whites, people with a homosexual orientation, unborn persons, and so on: the state will not take their lives without due process of law—a legally binding promise emphasized by the equal protection clause of the same Amendment that prescribes that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”
What does this conclusion—that the U.S. Constitution protects the unborn from state action depriving them of their lives without due process of law—tell us about abortion? In the first place it tells us that the Supreme Court was right and wrong when it held in Roe v. Wade (1973) that it did not need to resolve “the difficult question of when life begins.” The Court was right insofar as it was and is for science to resolve the question; the Court was wrong because, based on that premise (and on an “originalist” interpretation of the Constitution) the Court concluded “that the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”
Today hardly anyone considers the question the Court left unanswered a difficult one: it is scientifically undisputed that life begins with conception. Some argue that personhood starts later but, as Tim Bradley, a former editor-in-chief of this newspaper, wrote for the Charlotte Lozier Institute, “there are no human beings who are not persons, and all persons are entitled to equal protection under the law.”
It is true that from this reading of the Fourteenth Amendment in the light of natural law the exact requirements in justice of the constitutional protection owed to unborn persons by the several states do not follow. Still, a crucial starting point for the political and legal steps that need to be undertaken in the argument about abortion—and about whether and how Roe (and its substantial reaffirmations such as Planned Parenthood v. Casey (1992)) should be overruled—is the simple acceptance that a person is a person, no matter how small; acceptance, in other words, that justice requires in reason that the constitutional protection of the right to life should extend to the unborn.
Santiago Legarre is a Professor of Law at the Pontificia Universidad Catolica Argentina and a visiting professor at Notre Dame Law School. He can be reached at email@example.com.