Equal Basic Rights for All, Born and Unborn, Disabled Or Not

by Christopher Kaczor | Washington, DC | | 4/8/11 9:31 AM


Not only those with a “future-like-ours,” but all human beings possess equal basic rights.

In Notre Dame Philosophical Reviews, the distinguished philosopher Don Marquis offers his evaluation of my book The Ethics of Abortion: Women’s Rights, Human Life, and the Question of Justice:

Kaczor’s book contains the most complete, the most penetrating and the most up-to-date set of critiques of the arguments for abortion choice presently available. It is required reading for anyone seriously interested in the abortion issue. It is a good introduction for anyone who wishes to read a serious and thoughtful account of all of the various serious philosophical views that support the right to abortion. It deserves careful study. … I highly recommend it.

Despite these kind words, Marquis believes that my basic argument against abortion ultimately fails because it rests on the premise that all human beings should be accorded basic human rights. Marquis raises a number of difficulties with this proposition that could be fatal to my overall argument. The first problem is called speciesism. Peter Singer defines speciesism as “a prejudice or attitude of bias in favor of the interests of members of one’s own species and against those of members of other species.” On this view, to hold that all human beings have moral status is an insidious “-ism” and so should be rejected.

Although in The Ethics of Abortion I did not critique the notion of speciesism (one can only fight so many battles at once), we have good reason to reject the view that speciesism is akin to racism or sexism. Accepting the wrongfulness of speciesism commits one to implications that are deeply counter-intuitive. Dale Jamieson points out, “As Singer notes in Animal Liberation, everything else being equal, someone who rejects speciesism should be morally indifferent between a human and a dog who are at the same level of consciousness.” Let’s say I rush into a burning building, and I have time only to save one of two beings at the same level of consciousness. I find a one-year-old girl, Catherine, and nearby her dog, Fido, both passed out from smoke inhalation. I should just flip a coin to decide whether to save Catherine or Fido, since (on Singer’s view) her potential for rational functioning is irrelevant, and they are equally sentient. This is absurd, even if Catherine is an orphan.

Marquis also finds fault with various justifications that I give in favor of the equal basic moral worth of all human beings:

Kaczor argues that the right to life must be based upon endowment, not performance. What people are capable of doing comes in degrees. This is incompatible with our commitment to human equality. Therefore, the right to life must be based on our endowment, on the genetics that we have in common with all other human beings. … [O]ne wonders why the right to life cannot be an equal right that one obtains by meeting some performance threshold, just as all students who pass their junior year in high school have the equal right to enroll for their senior year, whether they passed their junior year with flying colors or barely eked out passing grades.

Important differences exist between meeting the performance threshold for academic advancement and various performance accounts of personhood. In standards for grade advancement, there ought to be a non-arbitrary pedagogical relationship between what is to be learned in one grade and suitable preparedness for the next. By contrast, as I argued in the book, there is no rational basis for determining which performance characteristic grants personhood (self-awareness, reasoning ability, or sentience?) and what degree of that characteristic gives moral worth. Secondly, if a degreed characteristic grants moral status, then it would seem to follow that the more you have of the valuable characteristic, the more valuable you would be. The junior who barely passed and the junior who earned a 4.0 both count equally as seniors, but they do not count equally in terms of their academic achievement as students. Likewise, performance-threshold accounts of personhood can establish that two normal adults both count as persons, but given human inequalities in degreed qualities (self-awareness, etc.), such accounts cannot establish that any two individual adults have equal moral worth as persons, and hence equal rights.

Marquis critiques a third way of justifying the thesis that all human beings should be accorded moral status:

Kaczor’s strongest argument appeals to what he describes as the orientation of all human beings toward freedom and reason. The virtue of this move is that it gets our values into the account of the basis for our rights. The trouble with this move is that either this orientation is entirely a matter of the genetics that make us members of the human species or it is not. On the one hand, if it is just a matter of our human genetics, then, perhaps, it may yield the equality of all human beings. The trouble is that some individuals who are genetically enough like us to be counted as humans, such as the irreversibly unconscious, are not capable of freedom and reason.

The orientation towards freedom and reason is not abolished in irreversibly unconscious human beings, though this orientation is frustrated by disease or injury. Indeed, it is the orientation to freedom and reason of all human beings that makes it so tragic when injured human beings cannot pursue distinctively human goals. The illiterate man is tragically deprived; the illiterate ape is not. This concept of flourishing plays a similar role in my justification of universal human rights as the “future-like-ours” plays in Marquis’s own justly famous essay on abortion. I am disappointed that Marquis did not notice the parallels between his view and my own view (both of which are non-species specific) in the following passage of my book:

Aside from just punishments, it is a violation of your rights when someone intentionally undermines your flourishing or what is necessary for your flourishing. To kill you is to undermine… your flourishing because being alive is necessary for you to flourish and is itself partially constitutive of your flourishing, so it is wrong to kill you. This is true not simply of you as an individual but of all others whose flourishing is similar to yours. So, it is wrong to kill any other being who shares flourishing-like-yours. This norm then would exclude the intentional killing of all innocent human beings and any other being sharing flourishing-like-yours.

My account secures the right to life of irreversibly comatose human beings whose flourishing is like ours, but whose flourishing is greatly compromised by their unfortunate disability.

This brings us to the over-commitment objection to universal human rights. Marquis writes:

The claim that all human beings have a serious right to life seems to imply that a human being who is in an irreversibly unconscious state, such as an anencephalic child or someone who has experienced severe trauma to her brain or is totally brain dead, has a serious right to life. It certainly seems counterintuitive to suppose that it would be as wrong to end the life of such a human being as it would be to end the life of you or me.

I think that human beings who are permanently unconscious retain their intrinsic dignity and basic human rights. “Total brain death” is a different matter, because if (it remains a disputed matter) brain death truly is death, then there is no human being in such cases, but rather only a corpse with residual activities resembling life. Such entities, being already dead ex hypothesi, cannot have a right to live. Brain death aside, Marquis is correct that killing you or me is worse than killing a permanently unconscious human being, but one need not deny equal basic human rights to come to this conclusion. In addition to violating the right to life shared equally by all innocent human beings, killing us also thwarts our future plans and makes it impossible for us to fulfill our duties. These additional circumstances add to the depravity of intentionally killing the innocent, but are missing in cases of human beings who are permanently unconscious.

Marquis provides no argument as to why permanently unconscious human beings should not be respected, but merely appeals to his intuition that permanently unconscious humans do not have an equal right not to be intentionally killed as you or I do. So, let’s change the case. Women have a right not to have sexual intercourse without their consent. It is obvious, therefore, that a hospital janitor who rapes an unconscious woman does wrong, whatever the duration of her lack of consciousness. But if a permanently unconscious woman retains her right not to be raped, then her neurological condition does not result in the loss of her basic human rights, so she would also retain her right not to be intentionally killed, a right she shares with her brothers and sisters who are in utero.

Marquis’s critique of my case for universal human rights does not succeed. It is certainly not, as Marquis describes it, “the Catholic view” in any sectarian sense, but the view endorsed by the 1948 United Nations Declaration of Human Rights: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Unfortunately, political, legal, and social recognition for all human beings remains more an aspiration than an achievement in the contemporary world, especially with respect to human beings who are in utero. Note: Christopher Kaczor is Professor of Philosophy at Loyola Marymount and the author of The Ethics of Abortion: Women’s Rights, Human Life, and the Question of Justice (Routledge 2011). This was originally printed at Public Discourse.