Should Abortion be a Matter of Referendum?

Alberto Giubilini
Wellcome Centre for Ethics and Humanities and Oxford Martin School, University of Oxford

I am writing this post on the 25^th of May, as the Irish abortion referendum is taking place. However, you will probably be reading it once the results are already known. I am not going to write in support of either side of the debate here anyway. I want to write about the appropriateness (from an ethical point of view) of this referendum itself. I want to suggest that a referendum is not the appropriate way to solve the dispute at stake.

Irish people have been asked whether they wanted to repeal the Eight Amendment of the Irish Constitution, which gives foetuses and pregnant women an “equal right to life”. It is commonly assumed that the Eight Amendment was preventing the Irish Government from legalizing abortion, except in extreme and very rare circumstances in which abortion is necessary to save the life of a pregnant woman. If the majority of Irish people votes “yes”, abortion can become legal in the country. If the majority votes “no”, abortion will remain a crime in the country, with the exception of a few extreme and very rare circumstances. More specifically, voting “no” means voting in favour of the idea that in Ireland a foetus does have a right to life equal to the right to life of the woman. Voting “yes” means voting in favour of the idea that in Ireland the foetus does not have a right to life comparable to the right to life of a woman; in other words, that it can be considered merely as part of the woman’s body for the purpose of attributing it a right to life (though not necessarily for other purposes), and therefore something that a woman can permissibly decide not to keep alive as a matter of bodily autonomy or, in many cases, and depending on what definition of “health” we adopt, as a matter of basic healthcare.

I think that to attribute things like a right to life or a right to healthcare on the basis of a majority vote of the population at large is wrong, independently of the outcome of this referendum. Of course, from a legal point of view, in Ireland a referendum is the only legitimate way to change the Constitution, so there was no alternative open to those who want to see abortion legalised. In this view, the referendum makes sense. But I am concerned here about the ethical level, rather than the legal one.

It is important to emphasize that the referendum was not meant to give Irish people the authority to decide whether abortion will be legal. This decision is up to the Parliament. The outcome of the referendum only determines whether the constitutional constraints that prevent the Parliament from legalizing abortion will be removed. If the “yes” front prevails, the Parliament will be able to enforce a proposed law that would allow women to access abortion up to 12 weeks without having to provide any justification, and then up to the moment of viability only in case the pregnancy poses an immediate risk to the life or a serious risk to the health of a woman. After the viability threshold, abortion will remain a crime.

Now, it is not so obvious to me, and probably to philosophers in general, that a constitutional amendment that assigns a right to life to the foetus actually prevents a government from legalizing abortion. There is a well known philosophical argument within the feminist tradition (which dates back to Judith Jarvis Thomson’s famous article “A defense of abortion”, 1971) according to which a woman would have a right to abortion even assuming that the foetus she’s pregnant with has a right to life: simply, according to this argument, a woman doesn’t have a duty to sacrifice her bodily autonomy just to keep alive whoever has a right to life and happens to depend on her body for being kept alive. So one could appeal to this argument to deny that the Irish referendum is ultimately necessary. Even if the Amendment says that the state will “defend and vindicate” the unborn’s right to life, as long as the woman doesn’t have any duty to protect this right to life, the state cannot require a woman to continue the pregnancy. I want to leave this argument aside, however, not only because I think it is philosophically very problematic, and not only because it makes philosophical points that might not be relevant from the point of view of the law, but also because I think that it is important to establish within the law whether a foetus has a right to life, quite independently of the issue about the permissibility of abortion. For example, it is important when it comes to decisions about very premature babies or when, presumably in a not so distant future, we will have to decide about the status of foetuses that can be kept alive outside women’s wombs through ectogenesis (i.e. “artificial wombs”).

My point is very simple. The Irish referendum asks Irish citizens a question about attribution of fundamental rights or, if you prefer the label, of “human rights”. But attribution of human rights is not something that should be decided by a majority vote. Instead, it is a philosophical matter; that is, it requires careful reflection about what individuals with certain characteristics are deserving of simply in virtue of having those characteristics, and not in virtue of the opinion of the majority of people living in their country.

According to the United Nations’ Universal Declaration of Human Rights (UDHR), “human rights are rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status”. If the term “human right” has any meaning at all and if there are things that are human rights, then a right to life and a right to basic healthcare certainly fall within the category of human rights. And in fact they do according to the UDHR, at article 3 and 25 respectively (except for the fact that article 25 refers not to a “right to healthcare” but to a right to “medical care” which is necessary for health and wellbeing). Thus, I disagree with those who claim that we should drop any reference to “human rights” when discussing the Irish referendum: the term “human right” might not be very useful or informative in general, as some have suggested (see e.g. Joshua Greene’s excellent discussion in his book Moral Tribes, 2013), but if we accept it in our vocabulary, then we have to admit that the Irish referendum is all about “human rights” (and if it is not, then nothing else is).

To clarify, that a right to life and a life to basic healthcare are human rights does not mean 1) that they are absolute rights, i.e. rights that allow for no exception; 2) that they are rights about which everyone would intuitively agree without need for further justification; and importantly, 3) that they are rights that people possess just in virtue of being “human” (which is why I think the label “human right” is quite problematic).

As for the first point, a human right is a prima facie fundamental right that can be infringed upon, though only in very exceptional circumstances; for example, someone’s right to life can legitimately be infringed upon in certain cases for self-defence.

As for the second point, people have different intuitions that can change over time, while human rights are, by definition, rights that remain constant over time because they depend on intrinsic properties of those who possess them; for example, slavery was a violation of human rights even in societies where people did not intuitively think so.

As for the third point, certain things commonly and correctly included in “human rights” lists cannot possibly be possessed by humans simply qua humans; for example, think of the right to basic education, to form a family, freedom of thought, conscience, and religion (all included in the UDHR): it is pretty clear that a human foetus or an infant, although they are, well, “humans”, cannot have any such right. Instead, it seems plausible to suppose that human rights are those rights possessed by all individuals who have certain morally relevant characteristics, without any exception based on morally irrelevant factors (e.g. gender, sex, religion, nationality, etc.).

Here, I will keep using the label “human rights” because it is one commonly deployed, but all these qualifications need to be taken into account.

Also, I assume here that, even if the UDHR starts off, at article 1, by claiming that “All human beings are born free and equal in dignity and rights”, it is reasonable for some people to want to raise the issue about how these rights would or would not apply to human beings before they are born.

To whom we should accord human rights should not be decided by a majority vote not only for the obvious reason that the majority could be wrong, and that the consequences of being wrong about human rights attribution are deleterious. More importantly, human rights should not be a matter of majority vote because whether individuals are subject of human rights is a matter of philosophical principle: human rights, if such things exist, depend on some intrinsic property of those who possess them, and not on the opinion of other people. One can have (or not have) a human right even if people around her think otherwise. The challenge, from a philosophical point of view, is to determine which intrinsic properties are morally relevant for attribution of certain rights (for example, whether merely being human, as a biological connotation, qualifies for a right to life). But this is a fundamental bioethical issue, and fundamental bioethical issues are not ones that can be solved through a majority vote of population at large.

As it happens, I do not think that a foetus has a right to life and I do think that a safe abortion can be, and in many cases is, a form of basic healthcare. However, each of these claims requires a robust philosophical justification and each of them needs to be defended from sometimes reasonable objections coming from the opposite front. While this type of engagement with philosophical arguments is desirable and indeed needed for most issues, when it comes to deciding directly about human rights philosophical reflection must play a more important role.

To compare, things like slavery or the death penalty are issues that ought not to be left to the majority of a population to decide. Slavery is wrong, in the sense that it violates a fundamental human right, regardless of whether most people in a country at a certain time believe that it is wrong; the death penalty might be right or wrong, but whether a certain individual loses her right to life because she has committed a certain crime cannot be decided by a majority vote of the population at large. Things like the moral status of a foetus or the health rights of women fall in the same category.

There might be other issues that should not be contingent upon referendum outcomes, such as those that presuppose a high level of scientific literacy. One example might be whether to produce nuclear energy in a certain country. Adequately addressing this issue requires a good knowledge of how nuclear reactors work and of the risks of having (e.g. incidents in nuclear power plants) and not having (e.g. having to rely on sources of energy with a higher environmental footprint) nuclear reactors in one’s country. I am going to leave this issue aside here, though I want to suggest that an analogous level of expertise is required when deciding about human rights in policy making.

Now, the obvious question is: if the kind of issues involved in the Irish referendum should not be decided by referendum, how should they be decided? Perhaps there is no way that is completely satisfactory to determine whether abortion should be legal; but there certainly are better ways to approximate the ideal level at which such issues should be addressed and, if possible, solved. In particular, since these are essentially bioethical and in-principle issues, they require some sort of philosophical expertise to be addressed and solved. Policy makers should rely on the advice of specific bioethics committees or, more in general, of committees formed by people with expertise in the philosophical aspects that are relevant to the type of right in question. Granted, bioethicists and other philosophers alike disagree on issues about attribution of fundamental human rights, and many of them have mistaken views, which is exactly the same situation we have when we consider population at large. But relying on these types of advisory committees instead of on population at large will ensure that all the relevant philosophical and in-principle aspects have been adequately considered and that “human rights” are taken seriously. This level of reflection is necessary not because of the bad consequences that a wrong decision would imply – after all, a wrong decision on a referendum about, say, Brexit, might have very bad consequences as well, – , but because of the very nature of what is at stake.

It is perhaps true that a decision that is imposed on people on the basis of experts’ advice, rather than as a result of an extremely democratic procedure like a referendum, would be less likely to be accepted by those who disagree with it, whatever we mean by “accepted”. But perhaps knowing that a certain law on abortion is the outcome  of a referendum would also provide people with strong reasons not to accept that law, e.g., people might feel that the majority is imposing their ethical views on the minority. In any case, this kind of considerations shouldn’t have too much weight. When human rights are at stake, the priority is making the right decision, making it for the right reasons, and  making it through the right procedure. A referendum on the moral status of foetuses might or might not succeed at the first task (and I hope this time it will), but it will certainly not succeed at the last two.