Abortion history is, in many ways, a question of the nature and domain of human rights. To treat this difficult issue with due deference we must consider it’s historical position entrenched within the timeless debate over human rights. In this abridged list are several key documents which have been formative sources for clarifying human rights law and practice.
Admittedly, the notion of “human rights” is largely a “modern” concept even if it’s roots (potentially) trace all the way back to the origin of humankind. The “negative” case against human rights could include a wide range of charters, constitutions, and civil and social laws codes across history which largely ignore any developed sense of human rights (ex., Code of Hammurabi, Hittite Laws, Code of Manu, etc.). Our modern sense of human rights–“life, liberty, pursuit of property”–is traceable at least as far back as John Locke (17th cent.). and the “pursuit of happiness” is traceable at least to Thomas Jefferson (18th cent.). However, for us, these would be mere theories, had they not trickled down into garden of early American political theory. Many theorists have elaborated positive, and negatives, cases regarding the disputable notion of “human rights”. This list, however, focuses on the positive case for human rights, and eschews the theoretical and non-conventional texts, instead prioritizing conventional socio-political statements like charters, constitutions, and international declarations.
|1. Hippocratic Oath (5th cent. BC)
|a. Central document for Medical ethics. Outlines various provisions regarding the centeral tenets of medical ethics (beneficence, non-malfeasance, autonomy, and justice). This is the statement physicians swore by to enter the medical profession.
b. “I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect. Similarly, I will not give to a woman an abortive remedy. In purity and holiness I will guard my life and my art.”—a ban on euthanasia and abortion are explicitly stated here.
c. At the time, a distinct human life was thought to begin at the quickening. Nevertheless, what they thought was abortion was still medically banned.
|2. Magna Carta (1215)
& British Common Law
|a. The Modern Human rights tradition is widely thought to be a descendent of the Magna Carta (the “Great charter”). In particular, this is the earliest flagship of the British Common law tradition.
b. The Magna Carta is fairly mild by today’s standards, but it introduced notions of religious freedom (freedom from overt state interference) and rights of due process.
c. Clause 39 deals in Due Process, a concept that would resurface in 5th and 14th Amendments of the U.S. constitution and eventually serve instrumentally in allowing abortion.
d. Abortion could be addressed implicitly regarding conscientious objectors who don’t want their tax dollars to support abortion. Also, the child-in-utero is denied any due process yet issued a judicially forged death sentence.
e. Regarding common law, from the 13th-15th century, in England, the unborn entity was consistently called a “child”
f. Under British Common law, abortion was legal before the quickening, but the medical knowledge at that time would not have considered the woman pregnant until the quickening. In this way, the only abortions permitted were, what they thought to be, non-abortions.
g. Abortion was prosecuted in many cases in the late medieval and modern era, even before the first official statute banning abortion in 1803. The historical account referenced by justice Blackmun in the RvW decision (1973) is poorly informed and misleading on this issue. Specifically, justice Blackmun was wrong to argue from ignorance that abortion was legal in England before 1803. It was prosecuted under common law and through implicit means before 1803 when the ban on abortion became explicit prohibition.
|3. Declaration of Independence (1776)
|a. Revolutionary in its day, and impactful ever since then, the Declaration of Independence is a radical and liberal landmark for the human rights tradition in the modern era.
b. “We hold these truths to be self evidence that all men are created equal” (Preamble).—Since human beings are first created at conception, and they are naturally equal from the point of creation, then fetal humans are equally human as you and I, from conception onward.
b. “endowed by our created with certain unalienable rights” (Preamble)—These are basic human rights, not extrinsic or created legal rights.
c. “to life, liberty, and the pursuit of happiness.” (Preamble)—The right to life is mentioned before the right of liberty. Perhaps because it’s the more basic of the bunch. Life as the practical qualifier for all other rights.
|4. U.S. Constitution (1788) and the bill of Rights (1971-1992).
|a. The constitution and the bill of rights speaks to abortion indirectly through the Due Process Clause of the 5th and 14th amendments.
b. “No person shall … be deprived of life, liberty, or property, without due process of law “ (5th amendment) and “[N]or shall any State deprive any person of life, liberty, or property, without due process of law” (15th amendment).—The child was later ruled to be a non-person or merely a “potential human” and thus is denied protections within the due process clause. Meanwhile, the mother’s right of privacy is thought to be a facet of her right of liberty and thus she has the freedom to do as she sees fit with and within her own body without any undue burden from the state. She could be prevented, governmentally, from acquiring an abortion by only by use of due process. On a case by cases basis, and given the law of the land, there’s no guarantee that due process would do any good.
|5. Universal Declaration of Human Rights (1948)
|a. This document is in “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family” (preamble)
b. “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” (Article 1)—humans are equal at birth. This is silent on whether any qualified “equality” might apply before birth, in-utero.
c. “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.” (Article 2)—In light of article one, this is not as helpful to pro-life causes as it could be. Ironically, this language prohibits discrimination on the basis of “birth or other status” immediately following discrimination on the basis of birth.
d. “Everyone has the right to life, liberty and security of person.” (Article 3)—Similar to the due process clause and the preamble to the Decl. of Indep., the right to life is mentioned first and foremost. It would seem that as soon as a human being has life, that life is theirs to keep, and no one else’s to take.
e. “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”( Article 5)—Abortion is cruel and torturous at least once the child can feel pain.
f. “Everyone shall have the right to recognition everywhere as a person before the law.” (Article 6)—This point is of limited value since “everyone” is unclear. Otherwise it could be used to argue that human children-in-utero should be recognized as persons.
g. “No one shall be subjected to arbitrary arrest, detention or exile.” (Article 9; see also Article 13)—abortion is arbitrary and fatal exile.
h. “Innocent until proven guilty” (Article 11)—the burden of proof lies with the accuser.
i. “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” (Article 16.3)—emphasizes the central importance of family for society.
j. Article 18: “Freedom of religion”—people have religious freedom cannot be obligated to violate their religious conscious and perform abortion as a public health worker, or support federally or state funded abortion through their tax dollars.
k. “(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.” (Article 25)—implicitly affirms the special dignity of the mother child relation.
|6. European Convention on Human Rights (1954)
|a. the section titled “the Right to life,” says “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.” (I.2.1)—this early mention suggests primacy, at a foundational level regarding other human rights.
b. “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”—Abortion is torturous at least once the child can feel pain.
c. Article 9 “Freedom of Religion.”—This should protect conscientious objectors from having to operate against their religious convictions and support abortions with their tax dollars, or perform abortions within a public health vocation.
|7. International Covenant of Civil and Political Rights (1966)
|a. Affirms “the inherent dignity and of the equal and inalienable rights of all members of the human family” (prologue).—This is a telling statement in it’s broad outline of “human family.” Children-in-utero are already human children of their mothers, and literally family members.
b. The terminology of “person” and “people” is the preferred term throughout.
c. “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, 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.” (II.2.1; see also, III.26.1)—Abortion choice policy permits discrimination on all these bases. Also, while “birth” here refers to family relations/class/caste, it’s ironic that in the literal sense child-birth is the key discriminating line against the most endangered group of humans in world history.
d. “The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.” (II.3)—As fathers do not have the legal, moral, or natural right to kill their children at any stage of development then it is an inequality for mothers to be able to do so.
e. “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” (III.6.1)—Overt affirmation of the negative right to not be aborted. The terminology here is
f. “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.” (III.7.1)—abortion is a cruel and torturous act, at least when performed on late term (20+ week) fetal humans who can feel pain. The use of fetal remains in medical sales and experimentation likewise violates this.
g. Part III, Article 12 speaks of rights against displacement/exile. This could bear upon abortion as the abortion procedure is a physiological displacement from the child’s rightful (legally entered) home. The child is legally innocent.
h. “Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.” (III.13.2)—This presumption of innocent acknowledges the life-bias, and puts the burden of proof on the accuser. Applied to abortion this would shift the burden of proof onto the abortion-advocate who’d need to show that supposed injustice of an unwanted pregnancy can be rightly addressed with fatal force. The imperiled child should be treated as “innocent until proven guilty.
i. the death penalty, at several points in the document, is considered taboo/banned with the exception of war crimes and military contexts. This rightly acknowledges that human life should not be treated casually, but preserved/protected wherever reasonably possible.
j. “Everyone shall have the right to recognition everywhere as a person before the law.” (III.16.1)—This point is of limited value since “everyone” is unclear. Otherwise it could be used to argue that human children-in-utero should be considered persons before the law.
k. “1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.” (III.17.1)—Abortion interferes with the privacy of the child.
l. Article 18 deals in freedom of religion. This could be used to show that no one should be compelled to help fund abortions through their tax dollars so long as they have a principled religious conviction against it.
m. Article 23 affirms the dignity and value of marriage as the “the natural and fundamental group unit of society” (III.23.1)—no complaints.
n. “Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.” (III.24.1)—Abortion readily permits discrimination via sex-selective, race-selective, and eugenic abortion. While not explicitly decried in this covenant, abortion is in bad company here. Even if the fetal human isn’t considered a legal person, they have race, gender, birth defects, and so on, and each of these can be used as points of discrimination to the degree of intentionally killing him or her.
|8. Convention on the Elimination of All forms of Discrimination Against Women (1979)
|a. This document revolves around the recognition and securing of equal rights for women. As such, abortion-choice advocates may understand it as overwhelmingly favoring abortion as “equality” was a major premise in the establishment of abortion-choice in Roe v. Wade and abortion-choice legislation ever since. However, men are not able to have abortions or to kill their developing child at any stage of life. True, men have “autonomy” and “privacy” over their bodies, and women can/should have that too. But it has not be demonstrated adequately that the woman’s rights of autonomy and privacy extend so far as to allow her killing her own child in the womb.
b.”To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.” (I.5.b)—strong emphasis on family and parental responsibility to one’s children. Remember that the child-in-utero is already a child, from conception onward.
c. Part III, Article 11, Section 2 deals in marriage and maternity rights and makes no mention of abortion.
d.”States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.” (III.12.1)—Healthcare is mentioned, but with no inclusion of abortion. As abortion does not care for the health of preborn girls, and incurs many risks, with no new life to show for it, we cannot safely assume that abortion is implied within the notion of “healthcare.”
e. “Notwithstanding the provisions of paragraph I of this article, States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.” (III.12.2)—”appropriate services in connection with pregnancy.” Abortion may be permitted here, at the discretion of any given nation. Perhaps this language is meant to keep abortion from stealing attention away from other, more pressing, human rights crimes occurring around the world (i.e., marital rape, genital mutilation, sex trafficking, etc.). This document is meant for diplomatic purposes and we can expect tactful diplomatic avoidance on issues where 1st world nations disagree.
f. “… To have access to adequate health care facilities, including information, counselling and services in family planning” (III.14.2.b).—Again, “family planning” may sound like code language for abortion-choice. But we cannot safely assume that much since rights of “family planning” in a 3rd world patriarchal cultures can indicate things like protection from forced abortion, forced sterilization, and contraception access. As of 2013, sixty-six countries or about 26% of countries prohibit abortion entirely or reserve it only for cases threatening the mother’s life.
g.”The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount;” (IV.16.1.d)—note that the “interests of the children shall be paramount.” The idea is that children are a particularly threatened population, and so, our laws should be specially aimed at protecting them.
h.”The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights” (IV.16.1.e).—This language could be understood in abortion-choice countries as permitting abortion. But it’s not explicit, but rather diplomatically vague on the issue. Quite possibly, the majority of the convention members approve of abortion. But there’s sufficient opposition to prevent the authors from including abortion as an explicit human right.
i. Overall, there is no explicit right of abortion-choice explicitly stated or implicitly clear within the text of this document.
Source, Clark Forsythe, “The Historical Roots of Abortion Law,” National Review (17 June 2015), para. 8.
Center for Reproductive Rights, “The World’s Abortion Laws Map, 2013 Update,” [Fact sheet] (New York: Center For Reproductive Rights), accessed 24 April 2017 at: https://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/AbortionMap_Factsheet_2013.pdf