Rights and claims

Conclusion By way of conclusion, I have tried to show that rights do not come from nowhere, that is, rights are not sui generis. They come from claims. Rights do not make claims possible; rather claims make rights possible. For out of claims come claims to rights and from the welter of such claims to rights a legal system is established which, after sifting and refining, accepts some claims to rights and dignifies these as deeds, titles, rights and rejects others; and provides rules enabling persons to exercise their rights. A system of rights and rules thus generated gives one the right to make strong claims. Although having a right is not a condition for making a claim, having a right is necessary to sustain and appraise a claim. Appealing to rights enables us to distinguish weak from strong claims. For rights may sustain or rebut claims though they are not themselves claims.How can we appraise claims? A claim to implies a claim that, the latter being an outcome of the former. If the resulting claim is open to appraisal of the sustain/reject or true/false kind, then it is a claim in a sense other than a primitive cry in the wild. If one can go on to say of a claim that is open to appraisal that one has a right to make such a claim or that one has a strong claim, this is to give favorable, initial appraisal to a claim thus made; and is a claim not in a primitive but in a secondary and ultimately more significant sense.A slightly revised version of a paper read at the Long Island Philosophical Society, May 15, 1971. I wish to thank Lowell Kleinman, Alex Orenstein, Peter Manicas and Karsten Struhl for their helpful criticisms.     

Abortion, Intimacy, and the Duty to Gestate

In this article, I urge that mainstream discussions of abortion are dissatisfying in large part because they proceed in polite abstraction from the distinctive circumstances and meanings of gestation. Such discussions, in fact, apply to abortion conceptual tools that were designed on the premiss that people are physically demarcated, even as gestation is marked by a thorough-going intertwinement. We cannot fully appreciate what is normatively at stake with legally forcing continued gestation, or again how to discuss moral responsibilities to continue gestating, until we appreciate in their own terms the goods and evils distinctive of gestational connection. To underscore the need to explore further the meanings of gestation, I provide two examples of the difference it might make to legal and moral discussions of abortion if we appreciate more fully that gestation is an intimacy.     

Towards an Alternative Approach to Personhood in the End of Life Questions

Within the Western bioethical framework, we make adistinction between two dominant interpretations of the meaning of moral personhood: thenaturalist and the humanist one. While both interpretations of moral personhood claim topromote individual autonomy and rights, they end up with very different normativeviews on the practical and legal measures needed to realize these values in every daylife. Particularly when we talk about the end of life issues it appears that in general thearguments for euthanasia are drawn from the naturalist interpretation of moral personhoodwhile the arguments against euthanasia, for their part, are derived from the idealistand/or humanist understanding of the same concept. This article focuses onexamining the metaphysical assumptions and internal contradiction found behind the opposingarguments presented by two prominent philosophers of these two traditions:Peter Singer and Ludger Honnefelder. The author claims that neither side of thedebate succeeds in defending its normative position without reconsidering how to takethe social aspects of moral personhood into account. The author holds that, despite ourneed to set individual's decision making into social context, the currentcommunitarian narrative concept of personhood fails to offer a convincing alternative.Instead of merely trying to replace psychological and atomistic view of personhood with acollective understanding of an individual's moral identity, we need to discuss thenormative relation between the concept of `moral personhood' and the demand for respect ofindividual autonomy in Western bioethics within a wider philosophical perspective.     

What is Wrong With Moral Testimony?

Is it legitimate to acquire one’s moral beliefs on the testimony of others? The pessimist about moral testimony says not. But what is the source of the difficulty? Here pessimists have a choice. On the Unavailability view, moral testimony never makes knowledge available to the recipient. On Unusability accounts, although moral testimony can make knowledge available, some further norm renders it illegitimate to make use of the knowledge thus offered. I suggest that Unusability accounts provide the strongest form of pessimist view. I consider and reject five Unavailability accounts. I then argue that any such view will fail. But what is the norm rendering moral testimonial knowledge unusable? I suggest it lies in the requirement that we grasp for ourselves the moral reasons behind a moral view. This demand is one testimony cannot meet, and that claim holds whatever account we offer of the epistemology of testimony. However, while appeal to this requirement forms the most plausible pessimist view, it is another question whether pessimism is correct.     

Must we have full moral status throughout our existence? A reply to Alfonso Gómez-Lobo

Those who are morally opposed to abortion generally make several pivotal assumptions. This paper focuses on the assumption that we have full moral status throughout our existence. Coupled with the assumption that we come into existence at conception, the assumption about moral status entails that all human fetuses have full moral status, including a right to life. Is the assumption about moral status correct? In addressing this question, I respond to several arguments advanced, in this journal and other venues, by Alfonso Gómez-Lobo. Gómez-Lobo's reasoning resolves into two basic arguments: (1) an appeal to the practical necessity of early moral protection and (2) an appeal to our kind membership and potentiality. I respond to these in turn before offering further reflections.     

Is Pregnancy Necessary? Feminist Concerns About Ectogenesis

To what extent are women obliged to be child-bearers? If reproductive technology could offer some form of ectogenesis, would feminists regard it as a liberating reproductive option? Three lines of reproductive rights arguments currently used by feminists are applied to ectogenesis. Each fails to provide strong grounds for prohibiting it. Yet, there are several ways in which ectogenesis could contribute to women's oppression, in particular, if it were used to undermine abortion rights, reinforce traditional views of fertility, increase fetal rights in pregnancy, and perpetuate the unequal distribution of scarce medical resources. A re-thinking of women's relationship to pregnancy is needed in order to challenge ectogenetic research.     

IF MEN COULD GET PREGNANT: BETH SINGER AND CAROL GILLIGAN ON ABORTION

Abstract: I argue here that Beth Singer's analysis of rights as operative social norms allows us to make sense of the personal and political complexities of the abortion debate. In particular, I argue that it is only by means of Singer's analysis that we, as feminists, can reconcile our conviction that Carol Gilligan's celebration of empathy and partiality gestures toward something definitive of our moral experience with the need to avail ourselves of the politically efficacious language of rights.     

The influence of war on moral judgments about harm

How does war influence moral judgments about harm? While the general rule is “thou shalt not kill,” war appears to provide an exception to the moral prohibition on intentional harm. In three studies (n = 263, n = 557, n = 793), we quantify the difference in moral judgments across peace and war contexts, and explore two possible explanations for the difference. The findings demonstrate that third-party observers judge a trade-off of one life for five as more morally acceptable in war than in peace, especially if the one person is from an outgroup of the person making the trade-off. In addition, the robust difference in moral judgments across “switch” and “footbridge” trolley problems is attenuated in war compared to in peace. The present studies have implications for moral psychology researchers who use war-based scenarios to study broader cognitive or affective processes. If the war context changes judgments of moral scenarios by triggering group-based reasoning or altering the perceived structure of the moral event, using such scenarios to make decontextualized claims about moral judgment may not be warranted.     

Is there a Moral Right to Vote?

The question raised in this paper is whether legal rights to vote are also moral rights to vote. The challenge to the justification of a moral right to vote is that it is not clear that the vote is instrumental to the preservation of some critical interest of the voter. Because a single vote has ‘no impact’ on electoral outcomes, the right to vote is unlikely to serve the interests of the individual. The account developed in this paper holds that moral voting rights can be justified once we acknowledge that voting by a sub-set of citizens is among the necessary preconditions for democratic institutions making a significant difference to their collective interests. The justification of a moral right to vote does not, then, apply to each individual citizen but only to a sub-set of them. In order to justify inclusive moral voting rights, the further consideration must be added that individuals have critical interests in public recognition of equal status. An inclusive moral right to vote accordingly depends on both collective interest in the outcomes of democratic institutions and on individual interest in equal recognition.     

AN ARGUMENT AGAINST ABORTION ON DEMAND

The paper presents a simple but novel argument against the idea of abortion on demand – i.e. the situation where a woman does not need to justify an abortion. Rather than arguing from a theory of the Right to Life of the foetus, which many would regard as controversial, the paper argues from the point of view that the foetus has a certain (intrinsic) value– simply because it is human. Since the destruction of something of value must be justified, it follows that the destruction of a foetus must be justified. This rules out abortion on demand. I believe that shifting emphasis from rights to values could make a major difference to the abortion debate and will make many people rethink their position on the subject.     

Abortion among adolescents

In most countries, adolescents' access to abortion is limited by restrictions on legal abortion. Abortion is legal in the United States, but many states require parental consent or notification. Legislation mandating parental consent has been justified by several assumptions, including high risk of psychological harm from abortion, adolescents' inability to make an adequately informed decision, and benefits of parental involvement. Empirical data raise questions about the first 2 assumptions: Studies suggest a relatively low risk associated with abortion, and adolescents seeking abortion appear to make an informed choice. Less is known about effects of parental involvement. The authors review available research and discuss policy debates over parental consent in the United States and the international context.     

Commitment

Recently there has been a re-emphasis by both educators and counselors of the concept of commitment. Can this concept bear scrutiny or is it only a popular slogan? It is argued that this concept can find meaning only in a moral absolute. The author points out that relativism is itself a moral absolute. If then we take this concept seriously we are faced with certain difficulties. If this concept is valid for education and counseling then we must either re-examine the issue of religion in the schools or be content with engendering a moral vacuum. It is maintained that the former is the only valid alternative and the author argues for the moral absolute of loving one's neighbor as himself rather than the more prevalent moral absolute of relativism.     

A Good Abortion Is a Tragic Abortion: Fit Motherhood and Disability Stigma

In the context of abortion stigma, most abortion stories remain untold. The stories we do tell of abortion are often told to morally recuperate the status of the woman who has an abortion through a recourse to tragedy. Tragedy frames experiences where every choice produces some suffering, so decisions are geared toward maintaining individual integrity rather than adherence to absolute moral truths. This article argues that one dominant tragic abortion narrative, that of the disabled fetus, works to recuperate the moral status of “fit” mothers while actively constructing disabled lives as unlivable and undesirable. The option to stigmatize disability in recuperating the moral status of the woman who has an abortion relies on eugenic logics that also construct a variety of women (racialized, poor, disabled, and young) as illegitimate reproductive subjects. The article analyzes narratives of Sherri Finkbine's 1962 abortion in relation to contemporary narratives of late‐term abortions involving nonviable fetuses to expose how investment in medical judgments of good births enables particular women to make use of tragic narratives to maintain their status as moral mothers without disturbing broader abortion stigma or eugenic logics.     

SUBJECTIVITY, JUDGMENT, AND THE BASING RELATIONSHIP

Moral and legal judgments sometimes depend on personal traits in this sense: the subject offers good reasons for her judgment, but if she had a different social or ideological background, her judgment would be different. If you would judge the constitutionality of restrictions on abortion differently if you were not a secular liberal, is your judgment really based on the arguments you find convincing, or do you find them so only because you are a secular liberal? I argue that a judgment can be based on the considerations the subject claims as justification even when it depends on personal traits.     

Labor as the Basis for Intellectual Property Rights

In debates about the moral foundations of intellectual property, one very popular strand concerns the role of labor as a moral basis for intellectual property rights. This idea has a great deal of intuitive plausibility; but is there a way to make it philosophically precise? That is, does labor provide strong reasons to grant intellectual property rights to intellectual laborers? In this paper, I argue that the answer to that question is “yes”. I offer a new view, different from existing labor theories of intellectual property, which I call the productive capacities view. This view gives us a way to make sense of the idea of labor as the basis for intellectual property rights, as well as a tool for critically evaluating existing intellectual property institutions.     

Adolescent autonomy and minors' legal rights: contraception and abortion

During adolescence, dependent children grow into independent and autonomous adults, and it is necessary to make difficult policy judgements about children's rights. Questions that arise include: shoudl minors have the right to work, to marry, to make legal contracts, and to obtain medical care without parental consent; or should parental consent be required by the state in order to protect minors and to preserve parental authority. This discussion focuses upon the area of family planning, a topic of special interest to policymakers because they now face many questions about minor's contraceptive and abortion rights in Congress, in state legislatures, and in the courts. comprehensive response to policy questions about family planning rights for minors would require information about adolescent development, maturity, and autonomy; about teenagers' sexual and contraceptive attitudes and behavior; about the nature of parent-child communication regarding sexual and contraceptive questions; and about politics and values. Many from the legal system want help in answering questions about minors' rights. As little research has been conducted, policymakers can obtain only limited guidance from social scientists. As the policy issue is fundamentally tied to developmental issues, the better the knowledge about the development of cognitive competence, social competence, and autonomy, the easier it will be to make the difficult legal and policy judgements about minor's rights. Regarding minors' access to contraceptives, the situation is somewhat cloudy. There is only 1 state statute that requires parental consent for access to contraceptive medical services, passed in Utah in 1981, and pertaining to services provided with public funds. Yet, common law requires parental consent for any medical treatment (with exceptions for emancipated or mature minors) and "physicians often hesitate to serve young people without first obtaining parental consent because they fear civil liability." The situation is even more cloudy in the case of abortion. The Supreme Court's present position seems to grant emancipated and mature minors access to abortion without a requirement for parental consent or notification, but states may place some requirements for parental involvement upon other minors, as long as these minors have an alternative route to abortion. A thorough search of the literature on adolescent development reveals that the policy questions loom larger than the alternatives. 2 policy alternatives are: to single out a reasonable age below which minors require either parental consent or some form of adult involvement; or treat family planning and fertility control as basic rights which cannot be abridged because of age.     

Sandra Day O'Connor and the justification of abortion

The recent Supreme Court decision upholding Roe v. Wade and in particular, the dissent by Justice Sandra Day O'Connor, sheds new light on the issue of abortion. Let us consider any stage of a pregnancy when abortion is medically safe for the mother. If at that stage it is also medically viable to save the fetus, is an abortion performed at that stage of pregnancy morally justifiable? For example, if it is, or becomes, medically safe to perform abortions after first trimester of pregnancy and at the same time saving a fetus is, or becomes, medically viable or not unusual during some stage of the second trimester, can abortions during and after that stage of pregnancy be justified? With a number of qualifications I shall argue the thesis that as a general rule, but not an absolute rule, abortion in these instances is not usually justifiable. For if it is, then one will also have to grant the moral justification for a number of other highly questionable medical practices. This thesis is not to be identified with the stronger claim that abortions of viable fetuses can never be performed. There are surely exceptions such as when the life or health of the mother is in danger. But, I shall argue, the justification for making such exceptions is on different grounds than is sometimes claimed because one must weigh the health of the mother against the life of another human being.     

Two kinds of potentiality: a critique of McGinn on the ethics of abortion

In Moral Literacy, or How to Do the Right Thing , Colin McGinn proposes a consequentialist solution to the abortion dilemma. McGinn interprets moral rights and moral interests as attributable only to actually sentient beings by virtue of their ability to experience pleasure or pain. McGinn argues against the moral rights of potentially conscious human fetuses, on the grounds that the unjoined ova and spermatazoa of any fertile men and women are also potentially sentient, but we do not generally suppose that unjoined human genetic germ plasm has moral rights. I argue that McGinn's reply equivocates between two different senses of 'potential sentience'. I distinguish between strong and weak potentiality, or between naturally probable potentiality and merely logically possible potentiality . I agree that it is reasonable to deny that a weak or merely logically possible potentially sentient fetus that would result from any unjoined ovum and sperm has a moral right to life. But I claim that this fact does not diminish the plausibility of extending a moral right or potential moral right to life to a naturally probable potentially sentient fetus, which we have good reason to believe will actually become sentient in the natural course of things if nothing is done to prevent its normal development. I conclude that it is not merely the potentiality, but the strong potentiality of a healthy, normally developing fetus that is soon to acquire sentience, moral interests, and, on McGinn's own terms, a moral right to life, that continues to sustain the abortion contro-versy, even among those who also want respect a woman's moral right to reproductive self-determination.     

Wrongful Life and Abortion

According to theories of wrongful life (WL), the imposition upon a child of an existence of poor quality can constitute an act of harming, and a violation of the child’s rights. The idea that there can be WLs may seem intuitively compelling. But, as this paper argues, liberals who commit themselves to WL theories may have to compromise some of their other beliefs. For they will thereby become committed to the claim that some women are under a stringent moral duty to have an abortion: a duty that could, without injustice, at least sometimes be enforced by the state. WL theories in other words imply that some women will lack a right to choose, under which both the decision to abort, and the decision to carry the fetus to term, are protected against interference. The paper exposes a dilemma, then, for liberals who are committed both to (a) the rights of future people not to be subjected to a harmful existence, and (b) the rights of women to refuse an abortion.     

The many faces of autonomy

What does autonomy mean from a moral point of view? Throughout Western history, autonomy has had no less than four different meanings. The first is political: the capacity of old cities and modern states to give themselves their own laws. The second is metaphysical, and was introduced by Kant in the second half of the 18th century. In this meaning, autonomy is understood as an intrinsic characteristic of all rational beings. Opposed to this is the legal meaning, in which actions are called autonomous when performed with due information and competency and without coercion. This last meaning, the most frequently used in bioethics, is primarily legal instead of moral. Is there a proper moral meaning of the word autonomy? If so, this would be a fourth meaning. Acts can only be called moral when they are postconventional (using the terminology coined by Lawrence Kohlberg), inner-directed (as expressed by David Riesman), and responsible (according to Hannah Arendt). Such acts are autonomous in this new, fourth, and to my mind, the only one proper, moral meaning. The goal of ethics cannot be other than forming human beings capable of making autonomous and responsible decisions, and doing so because they think this is their duty and not because of any other nonmoral motivation, like comfort, convenience, or satisfaction. The goal of ethics is to promote postconventional and mature human beings. This was what Socrates tried to do with the young people of Athens. And it is also the objective of every course of ethics and of any process of training.