Why Roe was Wrong: Part 3

Previously, I have discussed how a legal analysis based on present-day information would ascertain that abortion must not be tolerated in a free society. However, one must only take the law so far. Law has a long and complex history, and one should not always use it as the basis of right and wrong. Complications naturally arise when one considers what exactly the government uses as their basis for legality and morality. Many have thought that a government may act for the common good, but that notion is naive at best. A government, of course, is nothing more than a collective of individuals, thus possessing no more rights than any other mutual association. Those who wish to execute their doctrines assume power, and they thus have the ability to make a law concerning any subject they desire. Hence, laws are rarely executed via voluntary action, as those subject to the law rarely consented to them. Coercion is the backbone of all government. The government simply cannot exist without many infringements upon the rights of the people.

Now, lawlessness is clearly not the solution by any means whatsoever. Time and time again, lawless societies have proven to be unsustainable, showing that a legal code of some sort is necessary for the survival of a human society. Many will claim that this possesses an inherent contradiction, that voluntary action and a strong society are not feasible at the same time. This is not the case, for, in the absence of a State, one merely turns to morality to guide one’s actions.

What is morality? Essentially, it is the distinction between right and wrong, the code of law in the absence of all governmental laws. One of the most universally accepted moral codes is Natural Law, a theory originating from philosopher Thomas Aquinas

Thomas Aquinas


Simply put, Natural Law suggests that one should do good and avoid evil whenever possible. This basic guideline leads to the conclusion that voluntary action is good, whereas coercive action is evil, regardless of whether or not any governing body permits the action. Enlightenment-age thinker John Locke later uses such theories to imply that each individual has been naturally endowed with a right to life, liberty, and property. These, however, are something called negative rights, meaning that they are not guaranteed at the expense of anyone else. Of course, life is a temporary condition, and will inevitably end at some point. This does not give one individual the right to steal the heart of another if his own ceases to function. It does, however, guarantee the protection of the second man’s life against the first, just as it guarantees the protection of the first man’s life against any others.

Liberty and property function in the same manner, as explained by Locke. One does not have a right to property that they have not acquired; instead the right pertains to justly acquired property. A man does not have to give up their property because another man has none of his own, but once in just and voluntary possession of the property, the first man holds full power over its operations. Negative rights do not require goods and/or services of another equally free individual, and thus are the only that can objectively exist, seeing as all other positive “rights” (usage of the term in the positive sense is deeply flawed due to the inherent obligation that it sets on another) have an underlying threat of force behind them.  

For example, when one is sick, he does not have the right to force a doctor to treat and cure him, for that positive right would be a form of indirect conscription, violating the doctor’s right to liberty. Conversely, the doctor may not willfully kill the man, violating his natural right to life. Any accidental casualty would not be an infringement upon the rights of either party, given that the man contractually agreed that the doctor would treat him, thus assuming all inherent risks associated with such treatment. Those on both sides of this agreement, like in any other marketplace transaction, must reach their terms of service on a purely voluntary level in order to remain in the realm of negative rights.

This distinction becomes massively important in its relation to abortion. To begin with, it points out a crucial flaw in the majority opinion of Roe vs Wade as it pertains to morality and Natural Law. The majority opinion clearly explains that it is within a woman’s right as a human being to terminate her pregnancy if she so chooses. However, in recognition that a fetus is a living human, this presents a direct contradiction, for the life of the fetus and the liberty of the mother are both often touted as the more essential right in question.

A simple application of the principles of Natural Law and a comparison of positive and negative rights yields the result that the right to terminate a fetus is no right at all, as it is almost inherently positive (with one exception, explained at a later point). Though many will argue that, given the bodily autonomy inherent within Natural Law, only the woman may make such an important decision regarding her property, this logic is flawed on multiple levels.

For the sake of comparison, let one assume that a woman is herself and that her womb is her property. The fetus is another individual who is trespassing on her property. Had the fetus consented to its existence and placement, this would be logically sound, but this is not the case. For an unknown reason, presume that the woman asks a man to knock another man unconscious and place him on her property. Though the woman did not give the man direct permission to be on her property, he clearly had no say in the matter, and thus did not in any way willfully violate her property rights. Similarly, the fetus had no say in its own creation or placement in the womb, and thus does not willfully violate its mother’s right to bodily autonomy. In the rare case of rape, neither the mother nor the child would have consented to the child’s placement in the womb, so it would be like a man knocking another man unconscious and placing him on a woman’s property without her consent. Though the action of the man now violates the woman’s property rights, he did not do it willingly. Even in the case of rape, the fetus is not the aggressor. Accordingly, neither the man nor the woman should in any way treat the fetus as such.

To terminate the pregnancy, in either case, would be an action performed with the direct intent of violating the fetus’s right to life. On the other hand, the lack of the ability to terminate the pregnancy is in no way different than the lack of the ability to end any other human life. Regardless of the environment that that life may be in, whether it be a womb, stroller, or wheelchair, termination of that life is equally objectively wrong.

As briefly mentioned above, there is an exception to this scenario, that of course being when the mother’s life is in certain danger. In any scenario, a doctor pledges to uphold the Hippocratic Oath, a section of which commands that no matter what, one must act to save as many lives as possible. (Hence, abortion as a practice in non-life threatening cases also violates the terms of said Oath, but that is another subject entirely). However, in the rare occurrence that the mother’s life is at abnormal risk due to the pregnancy, there is an even more direct clash of rights. Though tragic, the truly pro-life stance in this scenario must be to preserve the life of the mother, as opposed to allowing both to end. Though a mother may choose not to make this decision, as she as an individual has every right to, it would be a violation of her own right to life to morally or legally prohibit this practice in such a dire occurrence.

Clearly, with the exception of cases in which the mother’s life is in great danger, abortion is a practice which holds no firm grounds for existence in the legal or moral realms. The State, if it is to exist in any form, has every legal precedent in instituting full prohibitions on abortions, though it must also recognize the exception for the mother’s life. Accepting these principles, one sees that Roe misinterprets the poignant fusion of biology and morality found within the discourse surrounding abortion. In recognition of a fetus’s inalienable rights, both the individual and the State can move towards a beneficial society based on voluntary interaction, despite the horrific setback that was the case of Roe v Wade.

This article was written by Ryan Lau, who is an opinion writer for 71 Republic. You can follow him on Instagram using the handle @minarchy.