4th May 2022
Those with too much interest in law or politics will talk about different sorts or rights – fundamental rights, legal rights, constitutional rights, and so on.
Some of those people will even know what they mean by each of these (similar) terms.
Others, however, may find the feast of terms confusing.
This post is for those who want to better understand such terms.
And for the purpose of exposition, I will take the topical issue of abortion in the United States (which this blog covered yesterday)
*
First, what is a ‘right’?
A right is the absolute ability to elect to do something in a given situation.
If that ability can be withdrawn by another, then it is better understood as a privilege, and not as a right.
If you need to obtain the prior consent of another before exercising that ability then it is not a right but a permission.
What makes it a right is that no prior permission is required and it cannot (easily) be withdrawn.
Sometimes these rights are expressly articulated and set out in a formal code.
And sometimes they arise by implication because of a certain legal state of affairs.
The right to an abortion under Roe v Wade in the United States is an example of the latter.
The Supreme Court held that it would be unconstitutional for there to be certain legal prohibitions on abortion.
This rested on a right to privacy, which is not expressly stated in the constitution, but was implied into the constitution by the court.
The right to abortion therefore is the implication of it being unconstitutional for there to be certain legal prohibitions in respect of people’s private lives.
And because Roe v Wade was decided by the Supreme Court on the basis of what was constitutional, the right is a ‘constitutional right’ .
This means that it is not open to Congress (on a federal level) or individual states to interfere with the right.
A lower level of right would be a legal right – for example, a right to an abortion as provided for in laws made by Congress or an individual state.
But such legal rights are subject to the constitution, and so if they do not conform with the constitution then they can be quashed.
This means that, if the Supreme Court holds that it is a matter for individual states to regulate access to abortions, but Congress purports to enact a nation-wide right to abortion, such a legal right may be struck down by the Supreme Court.
(Legal rights are useful, but constitutional rights are stronger.)
A third category of rights are ‘fundamental’ or ‘natural’ rights – these are rights which exist (or should) exist, independent of whether they are posited by the legal system.
Sometimes these rights correspond with constitutional or legal rights, sometimes they do not.
From a liberal perspective (the perspective of this blog), the right of a woman to elect to have an abortion is a fundamental right.
The principle is that – in general – it is for the woman to decide, and not a legislature.
(And if a legislator or voter is opposed to abortion, then they are free to not have one – but it should not be an absolute rule imposed on another.)
This general principle is subject to a limitation of there being a point in a pregnancy after which no abortion should be normally be performed – and views will differ on when that limit is.
But the fact that views will differ as to when that limit is does not mean that there should not be a general right to elect to have an abortion before that limit.
*
If the Supreme Court do remove the constitutional status of the implicit right to an abortion then it may still be a legal right in some states, and it still will be a fundamental right, even if an ineffective fundamental right in other states.
If the Supreme Court overrules Roe v Wade, the only other way to return the right to an abortion to being a constitutional right – and thereby exercisable in every American state is for the constitution to be amended.
That would then put it beyond the grasp of an illiberal Supreme Court and any illiberal Congress.
But until and unless that happens, you have a fundamental right which may be a legal right in some states and not others, but is not a constitutional right.
And that – well – would not be right.
**
Do you value this blog?
If so, please do support this blog, so that it can carry on for you and others.
These free-to-read law and policy posts every week day do take time and opportunity cost to put together, as do the comments to pre-moderate.
So for more posts like this – both for the benefit of you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.
You can also become an email subscriber.
***
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
For more on this blog’s Comments Policy see this page.
Thanks for a typically clear explanation.
One question – I understand the differentiation between Legal and Constitutional rights in the case of the US. It’s less clear to me how to draw a similar distinction in the UK?
I don’t think there is a clear distinction in the UK. Certain statutes are considered constitutional but there isn’t a comprehensive list as this stems from judicial decisions. certain common law rights such as access to a court have also been elevated by judicial decisions.
The American constitution dates back to a time when the rights of women (and others) were not remotely in the mind of the white males and, while it spoke of “fundamental rights”, these didn’t include
women’s reproductive rights as women were accorded no rights of their own per se.
Moving to the 21st century, the problem with abortion is that we have a clash of ‘rights’ that are unreconcilable.
The problem with the current constitution is that it isn’t sufficiently flexible enough to allow for a hierarchy of rights – which is what is needed when it comes to abortion. Bearing a child is completely unique in the weight of obligation that it brings upon one person, and for this reason the woman’s right has to be paramount.
However you look at it, it is inescapable that having a child changes a woman’s life forever. The unborn child’s life hasn’t been lived; the potential father can walk away, but the potential mother is bound either by a lifetime’s commitment or a lifetime’s guilt, even if she proceeds with the pregnancy and delivers her child for adoption. There is not a single woman that I know who has proceeded with an abortion without having struggled with her decision, and being haunted by her choice, but she will have made that choice because, at that point in her life, she cannot commit to child rearing. And that, I’m afraid, should be an end to it.
Because if the right to abortion falls, it won’t suddenly take away the issues facing a woman. David Steel understood this. Women and their babies were dying because abortion was being carried out in the back streets – and that’s where it’ll return in the US, or in any other country that doesn’t provide a legal, medical route.
I hope Biden can find a way, as he’s said he will, to stop the clock being turned back in the States.
Very interesting analysis but when you say: “But …, you have a fundamental right which may be a legal right in some states and not others.
And that – well – would not be right.” aren’t you somewhat begging the question?
In other words, why would it ‘not be right’ if each State is, as they often claim, as sovereign as most countries – except for the powers surrendered to the federal level? It is well established that legal rights, however fundamental, may differ from country to country, so why not from State to State. If a State tries to forbid an individual accessing another State in order to obtain an abortion (or dubious drugs for that matter) there may be an issue under the Commerce clause but it does not – necessarily – put the Constitution at risk. When in the US, some years ago, I was struck by the extent to which ‘petty’ rules varied – much more, in some cases, than would be acceptable in the EU.
Just to be clear, I strongly believe every woman should have full rights over her own body, but it has always seemed anomalous that in the US, unlike almost every other country where abortion is legal, this right comes through the courts rather than through the laws.
It seems to me that your argument is sound if and only if it is “right” to gainsay what would otherwise be a generally accepted fundamental right. Suppose the founding fathers had omitted the word “liberty” from their list of self-evident inalienable rights? Surely that would not affect the status of liberty as a fundamental right? It can’t be necessary that all fundamental rights have first to be constitutional rights before they can be fundamental? Of course, this doesn’t address the question of how a fundamental right should identified as such, other than by being self-evident.
Is there a cogent reason why abortion has become such a hot-button issue in the US, and not so much in other western democracies in recent decades? Does it remain controversial in Ireland, for example, or in Spain or Portugal?
As I understand it, under common law, abortion was illegal after “quickening”, but termination of a pregnancy was not murder. That common law position was modified in the UK by various acts from Lord Ellenborough’s Act in 1803 through to the Infant Life (Preservation) Act 1929. The latter had an exception from the offence of “child destruction” where the act was “done in good faith for the purpose only of preserving the life of the mother”. In Aleck Bourne’s case it was accepted that risks to physical and mental health fell within that exception (he terminated the pregnancy of a 14 year old girl raped by several army officers). So the UK has moved a long way, albeit Northern Ireland only recently.
In a legal sense, a woman’s ability to seek an abortion under the Abortion Act 1967 is still quite limited: two doctors need to certify one of the specified grounds. In practice, there are around 200,000 abortions in England and Wales each year: in 2020, 85% medical (rather than surgical), 88% under 10 weeks, and 98% on “ground C” (less than 24th weeks, and risk to the woman’s physical or mental health).
https://www.legislation.gov.uk/ukpga/1967/87/section/1
https://www.gov.uk/government/statistics/abortion-statistics-for-england-and-wales-2020/abortion-statistics-england-and-wales-2020
If we need historical parallels, abortion was unlawful in Tsarist Russia, legalised after the Russian revolution, but then prohibited by Stalin, and legalised again in 1955. It feels like parts of the US might be on a journey to a place with more restrictive rights to abortion than (to pick an example) Iran.
“Is there a cogent reason why abortion has become such a hot-button issue in the US, and not so much in other western democracies in recent decades?“
A contributing factor must be the high level of religious belief that exists in the US. I’ve often thought that while Church and State are not formally separated in the UK; they are for all practical purposes. While in the US, Church and State are separated formally; yet they are not for all practical purposes…
That puts it well, at least for the US, where constitutionally church and state are separate, but in fact, and particularly in the last fifty or sixty years, one particular form of Christianity has been given such a privileged position in the political process.
One result of that has been that legislation, and court cases challenging or enforcing it, have increasingly used constitutional law or legal precedent as vehicles to promote a view of the world that is primarily theological.
I don’t think there’s really much hope of liberalism finding a response to this SC judgment as if it were an isolated event. It is an expression of a particular theology, dominionism, and of a particular political history (the white illiberal reaction to legislation and legal judgments that challenged white supremacy).
In so far as the presenting issue is abortion, ‘what just happened’ is simply not understandable apart from the story of white evangelicals’ reaction to Green v. Connally in 1971, and the way that the issue of abortion was weaponised to rally political opposition to progressive, liberal politics.
FWIW the best person I know of to read on this is Randall Balmer, either his 2014 article in Politico, or his 2021 book ‘Bad Faith’.
Thanks both.
I’d not seen it until today, but I see the LA Times published a piece about abortion in the Soviet Union some months ago, where they explain that Stalin banned it in an attempt to increase the birth rate, and simultaneously introduced a swathe of benefits for mothers (paid maternity leave, childcare, payments, etc). Precious little of that in the US states that will want to restrict abortion.
But Stalin’s policy failed anyway, because women sought unsafe illegal abortions, and instead the numbers of deaths increased.
https://www.latimes.com/opinion/story/2022-01-04/stalins-abortion-ban-soviet-union
So, here in the UK, do we not have constitutional rights? Parliament can repeal any law. Would we want to have such a thing as a constitutional right that the Supreme Court can uphold?
I can’t envisage any scenario where the current political and social divisions in the USA would enable a constitutional amendment to pass on any issue ( let alone one as divisive as abortion).
Alas, your statement that a woman’s right to choose is a Fundamental Right is disputed by many. In fact, she can choose, whatever the state of the law, to have an abortion outside the law and so the fundamental nature of the right can be asserted in that manner. And, as you say, someone could believe that it was not rightful, perhaps for religious reasons, and might choose to forgo the act herself, but should not impose denial of it on others. This leads me to assert that the claims that ‘life begins at conception’ or that ‘abortion is murder’ are not legal but religious constructs. Freedom of religion surely allows a person to uphold these views personally, but not for others, and it perhaps should not be for the law to decide, especially if abortion is, in the limit, a fundamental right, whether lawful or not. The time in a life at which causing a death is homicide of some form has, over time, been moveable. Moving that time back to conception, whilst at the same time advocating lawful homicide for criminals, seems seriously perverse.
Thank you for this invaluable and clear exposition of these different species of rights and their values. In context you explain that at root Americans have serious and possibly irreconcilable disagreements over what constitutes a fundamental right which facilitates tribalism and winner takes all politics. This cannot be good for the health of the body politic in the USA or liberal democracy generally.
I would be grateful if you would equally explore the pros and cons of how justices are elected to the Supreme Court in the UK vs USA. Can one infer that one process by design may be subject to an inherent political bias in interpreting the Constitution (codified or not).
[ intend is to learn from you through an interesting blog vs. publishing this comment for all]
Not a lawyer but a former human rights campaigner, a woman and a Christian. I think that abortion is a legal right, not a fundamental or natural right, because it conflicts directly with the fundamental right to life of another human being and, importantly, I believe life begins at conception rather than at some arbitrary number of weeks’ gestation.
A woman’s body is hers, the child’s body is the child’s. During pregnancy, the woman is carrying the child. They are still two separate human beings.
I have also argued that it is inconsistent to oppose the death penalty but support abortion. Both are legalised killing.
Please note that this is not to say that abortion should be made illegal – it was legalised for very pragmatic reasons, to prevent the worse ill of backstreet abortions. But I don’t think at that time (I’m too young to remember), anyone tried to argue it was a fundamental human right. That’s an idea that has grown since the 70s.
Thank you for this thoughtful expression of an opposing view.
“I believe life begins at conception rather than at some arbitrary number of weeks’ gestation.“
I think this is another reason why it has become such a hot button issue. Theology has developed answers to the question of when life begins, (although to my knowledge they are not explicitly found anywhere in the Bible) yet the answers are not obviously wrong. It is a very difficult question around which there is still much secular disagreement. I have heard very convincing arguments both ways – including one that babies are not independent moral agents until quite a long time after birth, having a status lower than some animals.
Until this is sorted, I think a pragmatic approach by the law is the right one.
You raise an interesting problem with the concept of ‘fundamental rights’. Each different person, and certainly each different belief system (religious, political, etc.) will have a different view on what are or should be fundamental rights.
Which is why, I suppose, we have legal and constitutional rights (codified or otherwise).
I’d suggest that conception is just as arbitrary a time to pick as any other time you might choose, before the birth of a live baby. An egg cell and a sperm cell are both living cells, and a fertilised egg is just another cell.
We have something similar to the sorites paradox – when does adding one more grain of sand turn the collection into a heap? Does a single cell have fundamental rights?
What is your view of embryos created in vitro? What if any rights do they have? For a legal example, the Human Fertilisation and Embryology Act 1990 was drafted on the basis that there is no unique human being until the primitive streak develops, after about 14 days.
While I agree with Louise that abortion is, in reality, a legal right and indeed that there is conflict of rights in the case of abortion (a point I made above), the reality is that a women obliged to carry a pregnancy to term is effectively having other fundamental and natural rights infringed.
The 1967 Abortion Act, which still regulates abortion practice, did not grant women the right to end an unwanted pregnancy. The act gave doctors the final say on whether there are medical grounds to support a woman’s request for abortion: there must be evidence that the pregnancy would threaten her physical or mental health (or that of her children). Doctors understand that it is detrimental to a woman’s health to force her to endure a pregnancy and become a mother against her will. Often, it is because a woman’s circumstances are such that having a child would be detrimental to her mental health. In the most egregious cases, a woman may have been impregnated against her will, sometimes violently, and sometimes by a family member. To force a woman to carry a child to term in such circumstances is inhumane, especially as the woman will be daily confronted with the result of a criminal act. And that is without the psychological impact upon the child.
In practice, most abortions end unwanted pregnancies, the doctors accepting that it is damaging to the mental health of a woman to force her to endure a pregnancy against her will. This is what makes the Act workable.
If (some) men acted more responsibly then perhaps these moral dilemmas would not face us, but for this reason a woman must be allowed to have the final say.
If you believe life begins at fertilisation then presumably you are for banning the use of oral & injectable contraceptive drugs since while their mode of action is at multiple levels of the hypothalamic-pituitary-gonadal-uterine axis, a major part is by making the uterine lining unreceptive to implantation by the fertilised ovum so it passes out in what is then de facto an ‘abortion’ ?
I have fundamentalist Christians in my immediate and wider family who are adamant life begins at the moment the sperm fertilises the ovum and that an abortion at any time is ‘murder’, however when I ask them if they advocate a total ban on contraceptive drugs they have no answer.
Except life does not begin at conception, and quite obviously so. Both sperm and egg cells are already alive. Furthermore, it cannot even be that a particular person’s life begins, because in some cases the fertilised egg splits, for example giving twins. Twins are quite obviously two different people, so the fertilised egg cannot have been when they both started life. In far rarer cases, two fertilised eggs can merge into one person (a chimera). This person is also quite obviously only one person, so their life cannot have started at conception. Religious definitions are mere inventions which may be approximately correct but should not be relied on for any serious purpose.
Splitting hairs typifies the state of the debate in the US. “Life” starts at conception but survivable, recognizable “life” develops later. Medicine is steadily moving that second life closer to conception but still months away.
The basic point is valid. It is a legislated right in pretty much everywhere except the US.
It is not so much a splitting of hairs, as a disagreement on the basic definitions and basic assumptions.
“Life” does not begin in any meaningful sense at conception. All that happens is that two haploid cells (both alive) fuse to become one diploid cell (alive). It is “life” in the same sense that a bacterium or a white blood cell is alive, and we do not grant them much in the way of rights enforceable against others.
The zygote starts to divide, forming a blastula (a hollow ball of cells) and then differentiates into internal cells that become the embryo and external cells that become the outermost layer of the placenta. That collection of cells may not implant; it may spontaneously split into multiples; it may miscarry, and there is still a long way to go before the foetus is viable.
At ten weeks the fetus is just about recognisable as human, but only an inch long. Medicine is wonderful, but we there is little realistic possibility of pushing viability back that far any time soon. If delivered (very premature) a foetus may be more likely to survive than not by about 22 or 24 weeks, but many have severe impairments.
Reproduction is a pretty messy, hit and miss affair.
There is absolutely a need for legislation in the US that sets out the terms on which abortion is available, in the same manner as legislation governs the terms on which a person can exercise other rights, such as the right to vote or to bear arms.
Everywhere else it is a legislated right. Only in the US is the focus on a constitutional right. Also there is a reason why the cutoff in Europe is 18-22 weeks, trending gradually lower.
Everywhere else? I believe the courts in Canada held in one of the Morgentaler cases in 1988 that laws restricting abortion were contrary to the Canadian Charter of Rights and Freedoms (that is, the bill of rights entrenched in the Canadian constitution) and struck them down. Since then, abortion has been available as of right through the Canadian public healthcare system. Practical concerns and rules of medical ethics affect availability to some extent, but the criminal law plays no part.
But I’m not sure we are really disagreeing. If the US as a nation was planning to pass legislation providing for access to abortion on reasonable terms, in place of Roe v Wade, then that would be one thing.
Instead, we are likely to see the decision in Roe v Wade overturned, and then a dozen or two US states will pass or revive laws that make abortion almost impossible.
Perhaps, in the fullness of time, there will be sufficient political reaction to pass reasonable legislation permitting abortion in Texas and Mississippi and Oklahoma and so on, but in the meantime millions of pregnant women are going to be left in a very difficult position, with rights that have been exercised for nearly five decades taken away. I expect we will see hundreds perhaps thousands of deaths from women forced to carry on with pregnancies despite medical risks to the mother, not to mention from unsafe and illegal abortions. It is a salutary reminder, if one were needed, that the course of history does not always run one way.
Doubtless the foreseeable consequences of their decisions are of no concern to the justices of the US Supreme Court. Fiat justitia ruat caelum.
The Charter was written almost 20 years after Canada made abortion legal….In Europe it is a legislated right and no one gets excited because the issue is closed.
The problem with Roe is that it degenerates the hyperbole you use (and from lifers). There are about 700k abortions pa, declining all the time. The most populous states except Texas will offer abortion at the start. Initial estimates are that about 75k will be unable to travel to have abortions. That seems a bit low and is anyway wrong. With Roe gone I doubt let the mother die laws will prevail.
The US didn’t need Roe: abortion was being legalized progressively across states. Now we have to live with zealots on both sides when the rest of the West has moved on. Instead of scapegoating SCOTUS, politicians should be moving sensible aka compromise legislation in as many states as possible. The others will fall as lifers lose oxygen without Roe and then finally the US can focus on more important things than an anachronistic legal fight.
An intriguing and strictly political, not legal, perspective on the subject is offered by this man. His given name is Justin King. He lives in Florida. Appearances can be deceptive.
If a woman has a fundamental right to an abortion, does it follow that a doctor has no right to decline to perform one?
No. In the same way that an American right to bear arms does not require any particular gun dealer to sell you a gun.
A woman’s right to an abortion merely is a guarantee that she can freely seek one and that an abortion provider cannot unreasonably be prevented from performing one.
“If the Supreme Court overrules Roe v Wade, the only other way to return the right to an abortion to being a constitutional right – and thereby exercisable in every American state is for the constitution to be amended.”
I’m inclined to disagree that this would be the only way to bring the right to an abortion back as a constitutional right. You’ve already pointed out the flaws in Roe v Wade. Ruth Bader Ginsberg was critical of that approach and would have preferred it to have been settled taking an Equal Protection approach, as she had successfully advocated in many cases furthering women’s rights. I think what is going to be interesting in this judgement, even more than the dissents (which I expect to be furious), is the concurrences. That may indicate a possible avenue. Gorsuch wrote the controversial majority opinion that outlawed workplace discrimination based on sexual orientation. I expect Gorsuch will concur. Maybe Kavanaugh will join it. Maybe not. Roberts is currently on the other side. I can’t predict how he will move. A constitutional amendment on this (or anything else for that matter) seems unlikely in our lifetime. Such is the mess over there.
As RBG said, Roe vs Wade is “bad law”. It politicized SCOTUS and prevented rational discussion. At the time the US already had 18 states allowing abortion while Europe for example had the UK, Denmark and maybe a couple of others. So the US was by no means lagging – Georgia allowed it. Roe essentially overturned those laws and left the US in limbo where it has been impossible to discuss sensible rules surrounding abortion. It has also allowed politicians to avoid the topic except for cheap electioneering while every other country has held open debates, referendums and legislative votes. A SCOTUS reversal will cause more confusion although one wonders if the 18 states still have the laws on the books or in a form that could be quickly revived.
I think your comment goes to the heart of the matter. I believe that a woman has the right to abort a foetus before viability but this very sensitive issue should be codified by political representatives not dictated by judges (just because judges are more likely to give the ‘right’ answer does not mean they should replace democratically accountable legislators).
Is there any other country, permitting abortion, where the permission has come via the courts interpreting the founding constitution rather than through legislation?
Agreed. If abortion was legislated then it would be easier to coordinate with birth control to reduce its need. You would also focus minds by having a sensible cut-off around 18 months: more than enough to confirm pregnancy and take a decision.
Obergefell, the same-sex marriage ruling written by Anthony Kennedy in 2015, is similarly a mess and very vulnerable to review by this court. The thoughtful dissents in that judgement, particularly by Roberts, are much better reasoned. It also relied on the Due Process Clause. Even Scalia had insightful things to say there.
The Canadian Charter may be a better comparison than the US constitution, being of another parliamentary monarchy, much more recently enacted, and generously interpreted by the courts (the notwithstanding clause notwithstanding).