We owe a lot of the structure of this argument to our friends at the Equal Rights Institute. This is our version of the argument and so if we don’t agree in every detail, they’re not responsible for anything we get wrong!

This is an argument (or the sketch of an argument) for the claim that pre-born humans have the same basic human rights that born humans have. Specifically, that they have the same basic right to life as born humans have.

It is not, on its own, an argument that abortion is always wrong or even ever wrong. That’s because it could be the case that the right to life that all humans have is one that could be violated in certain situations, and one of those situations could be “being inside another person’s body” or “being entirely dependent on another person’s body”. In other words, there might be a bodily rights argument that makes some or all abortions morally justified, even if pre-born humans are our moral equals.

This is an argument that they are our moral equals. It is an argument that as far as their intrinsic status goes, pre-born children are equal to us. They matter, morally, as much as we do. If it’s sometimes legitimate to kill them, what is legitimate in that circumstance is the killing of one of our moral equals – of one of us. If this argument is right, then every abortion will be tragic, even if not necessarily wrong. It won’t be the destruction of a being that doesn’t matter, or even of one that matters somewhat but less than we born humans do.

This is also very much the outline of an argument. It’s not supposed to answer every question or every possible objection! ( And we welcome these in our comment section below!)

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1. All born humans have equal rights

Let’s take as a starting point the claim that all born humans have equal rights. We don’t need to be very specific about the full list of what those rights are. This argument doesn’t depend on you having any position on whether humans have a right to join a trade union or to get a driver’s licence. But all born humans have the very basic rights, the ones that would feature on any plausible list. Among these is the right to life.

We don’t need to be specific about what exactly that right amounts to either. It could be really expansive (every human might have the right to have their life preserved in all circumstances) or relatively narrow (every human might have the right not to be killed if they are not threatening another human’s life). Perhaps the right can be relinquished in some circumstances, perhaps it can’t. What matters is that all born humans have this same right.

Now, if all born humans have this same right, there must be something the same about them. It’s not the case that there are a whole bunch of different reasons why every born human has an equal right to life. That would be a ridiculous coincidence. Imagine:

Different reasons, equal rights

It just so happens that Ben, Ciara, Gavin, and Muireann all have an equal right to life. Ben has it because he’s blonde, Ciara because she was born in Holles Street Hospital, Muireann because she’s good at board games, and Gavin because he’s an excellent dancer. Also, every other born human has the same basic right to life, but they all have it for different reasons again. It just happened to work out that way.

This is just very implausible. It also goes against the way we all think about human rights, which is that they’re universal for a reason. Despite all our many differences, there’s something the same about all born humans, and that something is a big part of the explanation of why we all have equal rights. In technical terms there must be some property or feature or attribute that all born humans have in common. We might say that that feature is the ground of their rights. That’s what makes us entitled to say that all born humans have equal rights – for the purposes of this discussion, they have an equal right to life.

2. The rights-grounding attribute

The next point is almost a triviality: whatever attribute it is that grounds the equal human rights of all born humans, every being that has that attribute will have those same equal rights. This is just a matter of consistency. In Aristotle’s words, we ought to “treat like things alike.” If you say ‘everyone wearing yellow gets to be on the frisbee team’ and then Timmy’s wearing yellow and he doesn’t get to be on the team, then you didn’t really mean ‘everyone wearing yellow gets to be on the frisbee team.’ It wasn’t really wearing yellow that got you on the team at all.

Being inconsistent might not have very bad consequences when it comes to Timmy and his frisbee allegiances, but it if this same kind of inconsistency were involved in determining whether Timmy had access to housing, or education, it would be a different matter. When the stakes are high, this kind of arbitrariness is self-evidently unjust. If we want to treat people fairly, we must be consistent.

This is most important to do when it comes to questions of basic or fundamental rights. Part of what it is for something to be a fundamental human right is that we can’t just arbitrarily ignore it. If I have the rights-grounding attribute, then I have rights.

Now maybe there’s some attribute that all born humans have, but it’s only when combined with another attribute that it becomes a rights-grounding attribute. And maybe some other group of beings has the first attribute but not the second, while all born humans have both. In that case it’ll be this combination of attributes that I’ll refer to as ‘the rights-grounding attribute’. Whether it’s one attribute or a combination of them isn’t important. It’s just that whatever it is, all born humans have it.

3. We don’t have to agree on how or why we all have human rights – but we have to be consistent

A final important note: we don’t have to agree on how or why it is that the rights-grounding property gives us all equal rights. This might seem strange, but it’s an idea that’s at the core of the human-rights project. The modern world has people in it with all sorts of philosophical and religious worldviews, and all of them should be able to agree on fundamental human-rights questions. We shouldn’t have to say anything like ‘every being with the rights-grounding attribute is made in the image and likeness of God’ or ‘every being with the rights-grounding attribute must be regarded by every rational agent as an end in themselves on pain of irrationality’ to get human rights claims off the ground. We can just say ‘every being with the rights-grounding attribute has the basic set of human rights’ and leave the explanation undefined. That way people from a wide variety of different traditions can reason together about human rights without having to come to total agreement on religious and metaphysical truths about the fundamental nature of reality. We can agree on who has the fundamental human rights, and the attribute that gives them those rights, without agreeing on the ultimate reason why they have those rights. We can agree on the scope of human rights without agreeing about their ultimate foundation.

This is another reason why consistency is so important when it comes to human rights claims. People with different worldviews can’t agree that humans are made in the image of God. But they can agree that it would be an egregious human rights violation to kill a five-year-old girl. If we ask ourselves not ‘what is the fundamental nature of all ethics?’ but the more modest question ‘what does everyone who we can all agree have equal rights have in common, and who else has that in common with them?’ we can come up with moral claims that we can all agree on. And that’s surely what human rights are.

Am I contradicting myself? Earlier I said that the rights-grounding attribute was part of what explained why we had rights. But by that I mean “explained why we are rights-bearers as opposed to non-rights-bearers”, not “explained why reality is arranged in such a way that all the people with the rights-bearing property have human rights.” People aren’t agreed on this question when it comes to the rights of born people, and yet we’re completely able to agree that, to take our pertinent example, all born humans have the right to life.

So what is it? What is the attribute or set of attributes that grounds the basic equal human rights of all born humans? That grounds fundamental moral equality?

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4. What doesn’t ground equal rights

First of all, some things the rights-grounding attribute can’t be. It can’t be anything that not all born humans have. Consider the following scenarios:

Human Rights Sexism

The rights-grounding attribute is being a male human.

Human Rights Racism

The rights-grounding attribute is being a white human.

Human Rights Sexism and Racism

The rights-grounding attribute is a combination of two attributes – it’s being a white male human.

Human Rights Homophobia

The rights–grounding attribute is being a heterosexual human.

Human Rights Ableism

The rights–grounding attribute is being a neurotypical human, or a human that has no intellectual disabilities.

Human Rights National Supremacy

The rights-grounding attribute is being a human born in Europe.

All of these are not only obviously wrong, they go against the whole point of human rights. They leave huge swathes of humanity as non-rights-bearers. There’s a reason the most famous document enumerating human rights is called the Universal Declaration. Human rights are meant to be barriers against the kind of inequality that these views amount to. If the idea of human rights has any point at all, it has to cover every born human, their rights protecting them against the prejudiced treatment they would receive under the above views. All of these accounts of the ground of human rights are complete non-starters.

This principle – this basic, obvious principle – that the ground of human rights has to be something that every born human has, is the principle that does most of the work in this argument. There are just not that many potential rights-grounding properties that could be universal in this way. What ones are left as plausible candidates? Well, one is:

Human Rights for the Conscious

The rights-grounding property is being conscious: having an active first-person perspective on the world.

There’s an ambiguity here about the word ‘active’, or about what it means to actually be conscious. On a plausible interpretation, people who are asleep and not dreaming are often not conscious. Even if one takes a different view on that question and maintains that people are always conscious even when asleep, it seems clear that at least people in severe comas are, for a period of time, not conscious. Human Rights for the Conscious would mean that Sally, who sustains a serious brain injury in a traffic accident and falls into a coma, would stop being a rights-bearer as long as she was in it. She would become a rights-bearer again if and when she emerged from the coma, but while her brain was repairing itself she would not be our equal, and would not possess an equal right to life. That this conclusion is repellant shows that consciousness is not the right basis for human rights.

It also points to something else important: human rights are particularly important for vulnerable people. Sally, after her accident, is totally dependent on the care of others. She is extremely vulnerable to harm. To say that a person in such a situation loses their moral equality isn’t just wrong, it strikes us as particularly vicious, particularly subversive of the point of human rights.

What about another potential rights-grounding attribute that doesn’t exclude people like Sally?

Human Rights: Conscious Capacities

The rights-grounding property is having the capacity for consciousness: the capacity to have an active first-person perspective on the world.

There’s a pretty thorny philosophical debate about what exactly it is to have a capacity for consciousness, but here we just mean the common-sense notion. Sally may not be conscious now but she has a capacity for consciousness that’s been temporarily disabled. Perhaps all born humans have this capacity.

The problem with this view of the ground of human rights is that it’s not a ground of human rights at all. It’s a ground of rights for all sentient beings, all beings that have any first-personal experience at all. On this view, mice and fish have the same equal right to life as born humans.

At this stage which we have to take seriously the point from the intro that this post isn’t meant to cover every possible objection. Some people will just be happy to bite this bullet and say that all sentient creatures should have equal basic rights in the sense I’m discussing. (The philosopher Martha Nussbaum has an upcoming book essentially arguing this). And there’s a version of the Equal Rights Argument that reaches the same conclusion for people who believe this claim – it’s just not this one. We hope to return to this topic, as questions of animal rights and animal ethics are important ones that are seeing an increasing amount of discussion. We take the ethical claims of animals seriously, and for what it’s worth some of the members of the Minimise Project are vegetarians.

So all that being said: this argument presumes that the human rights project is not mistaken to talk about human rights. There are circumstances in which killing, say, a fish would be permissible when killing a human wouldn’t be. Even if that’s not true, and killing a fish is always wrong, it’s not seriously wrong as killing a human being is. Most people share this sort of belief: even those of us who are vegetarians do not behave as though eating meat is morally equivalent to cannibalism. Note that believing that most animals are not bearers of equal rights doesn’t stop one believing in animal rights. It just involves believing that there’s something particularly special about born humans and their moral claims that isn’t shared by at least most animals. If having the capacity for consciousness was the rights-grounding property, then that can’t be right: fish and perhaps even insects would be our moral equals. If you don’t think that’s plausible, you have to reject this view.

What if we try to correct for this problem?

Human Rights: Sophisticated Cognitive Capacities

The rights-grounding property is having sophisticated cognitive capacities, whatever they are. Perhaps the ability to think of yourself as a self, to think self-reflective thoughts, to be able to form conceptual thoughts involving the word “I”. Or perhaps the ability to think about how you act in terms of reasons for action and evaluate your own conduct. Or perhaps the ability to engage in abstract reasoning generally.

This kind of theory of the basis of human rights has a long history. It’s one of the most influential contenders in the modern philosophical literature on these types of topics, with high-profile advocates like Peter Singer and Jeff McMahan. It also has a pretty solid intuitive basis that goes something like this. “Humans are special because of what we do and the kind of lives we lead: we can make art and great literature, we can engage in sophisticated thought about ethics and the meaning of life. Surely these capacities are what makes us special – these are the right kind of things to be the rights-grounding attribute.”

We immediately run into a problem with how to define ‘having a capacity’. Newborn babies have basically none of the capacities listed. A newborn is almost certainly capable of less sophisticated cognition than are a lot of adult animals. It’s not as though newborns have the capacity for sophisticated thought in their brains right then and are only having it inhibited by something (as might be the case in some of the coma examples we considered above). Babies growing up don’t throw off some kind of developmental training weight and suddenly access their ability to do sophisticated reasoning that they had all along. Rather their brains develop and change, giving them that ability over time.

So if we don’t want to exclude newborn babies, we have to define ‘having sophisticated cognitive capacities’ broadly: something like ‘having the capacity to be able to develop sophisticated cognitive capacities.’ Of course, if that’s the standard then most pre-born humans will have it too. But there are deeper problems.

The primary one is accounting for people with severe cognitive disabilities. Some of these disabilities, like Edward’s Syndrome, can prevent people from ever developing sophisticated cognitive capacities. And because some of these disabilities are genetic in origin, there’s never a point where the human with the disability actually has the capacity or (in any straightforward sense) the capacity to develop the capacity.

But this would mean that people like Donnie Heaton and “Ashley X” are not our moral equals. Human Rights: Sophisticated Cognitive Capacities, for all its sophistication, turns out to be a version of Human Rights Ableism. It removes some of the most vulnerable humans of all from the scope of human equality. That’s not a conclusion we should be willing to accept.

Perhaps one more change will solve the problem.

Human Rights: Sophisticated Cognitive Capacities, All Going Well

The rights-grounding property is having it be the case that you will or would have sophisticated cognitive capacities, all going well. Or that it is the case that you will or would have sophisticated cognitive capacities if you developed normally.

This account of the rights-grounding property has a huge question mark at its core. The idea it’s supposed to capture is something like this. A mouse is not badly off for not having sophisticated cognitive capacities. There’s nothing in its healthy, normal development that involves developing capacities like those. Nothing needs to go wrong in order to deprive the mouse of them. So even “all going well” or “all going normally”, a mouse wouldn’t have sophisticated cognitive capacities on this view: and hence wouldn’t have equal human rights.

For a human, though, it’s different. For a human, not to develop sophisticated cognitive capacities is a misfortune. It doesn’t necessarily make that human worse off overall, but it is itself an unfortunate thing to happen to a person. If things had all gone well, if that human had followed the normal developmental path, then they would have had sophisticated cognitive capacities. On this view, people like Donnie and Ashley are equal rights-bearers.

This account is, I think, very close to being the right one. The primary trouble with it is that it’s vague. It has a question at the core of its definition. That question is: what makes it the case that “all going well”, some creatures will develop sophisticated cognitive capacities? After all, some humans have genetic conditions that make it impossible for things to actually “go well” for them in this way. The answer is that the the idea of “going well” or of “normal development” being employed here is a species-specific one. A dog is not badly off for lacking cognitive capacities because it’s a dog. That’s the kind of creature it is. The reason why for humans lacking those capacities is a misfortune is because of the kind of creatures they are: humans. So the ‘all going well view’ really amounts to:

Human Rights: Rational Kind of Creature

The rights-grounding property is being the kind of creature that characteristically has sophisticated cognitive capacities.

5. Human Rights for All Humans

So where does that leave us? With, I think, the obvious account of the rights-grounding attribute. I don’t mean that it’s obvious that it’s ultimately the correct one. (You have to conclude that there are flaws with some of the alternatives before that becomes clear.) It’s just obvious in a sense of being the natural first port of call. Sometimes the obvious answer isn’t the correct one: it just happens that this time it is.

Human Rights for Humans

The rights-grounding property is being a member of the human species.

If you’re persuaded by the updated version of the sophisticated cognitive capacities view, the one that doesn’t have horrifyingly ableist conclusions, you’re basically already here. The only kind of creature that we’re aware of that characteristically has sophisticated cognitive capacities is human beings: biological organisms of the species homo sapiens. Now maybe you prefer the other formulation: maybe you think chimps, dolphins, or elephants have sophisticated cognitive capacities too and you think they have equal rights (even though fish don’t), or maybe you want to leave open the possibility that we’ll find aliens who have the same capacities in the future. The argument works with either formulation.

Maybe, though, you don’t agree with the sophisticated cognitive capacities view at all. Maybe you think that people with severe cognitive disabilities are our moral equals, but you don’t think endorsing that claim needs to depend on the idea that people with these disabilities are in any way unfortunate in virtue of lacking certain capacities. In that case you might want to endorse this formulation without endorsing the previous one.

The key point is that either formulation gives human rights to every human: every biological member of the species homo sapiens. And this shouldn’t be a surprise! Human rights are human rights. The claim that basic human rights belong to all humans is the fulfilment of the universalism and spirit of inclusion that animated the human-rights project from the beginning. It’s an idea that makes sense of the great human-rights battles and victories of history. Most importantly, though, these are the only accounts that cover everyone. “Being a creature of a rational kind” and “being a human” are the only attributes that are plausibly possessed by all born humans.

These attributes are of course possessed by the unborn ones as well.

6. Pre-born humans are humans, and so have equal human rights

Human embryos and fetuses are humans. They are organisms of the species homo sapiens. That they are organisms is clear: they are alive, and they are not parts of organisms like hands or feet. That they are of the species homo sapiens is clear: they have human parents. (What other species would they be?)

These biological facts are not in doubt. What is in doubt is their significance. Does being a human give you the right to life? Is ‘being a human’ the right-grounding attribute? Are all humans the moral equals of all other humans in matters of fundamental rights or intrinsic moral status? The claim that this argument has advanced is that there is no viable alternative view. Every proposed rights-grounding attribute that leaves out pre-born humans also leaves out some born humans.

Pre-born humans aren’t conscious (at least not in the early stages of pregnancy). Neither are coma patients. Pre-born humans don’t have sophisticated cognition. Neither do born babies. Most pre-born babies have the capacity to develop sophisticated cognitive capacities. The ones that don’t share this with born people with severe cognitive disabilities. It’s impossible to draw any consistent line that excluded the pre-born without excluding anyone else.

It’s possible of course that there is some other rights-giving attribute we haven’t considered that manages this feat. This argument hasn’t even explicitly considered all the ones that people propose. But try plugging in any attribute or set of attributes (relational accounts based on the capacity to participate in certain kinds of relationships, or accounts based on the capacity to have certain emotions, or various kinds of political account based on the possibility of social co-operation) and we think you’ll run into exactly the same problem. The line never gets drawn in the “right place”. It either includes all humans or excludes the pre-born at the price of also excluding some of the born. It’s no accident that some of the most sophisticated philosophical defences of some of these other views go right ahead and bite the bullet, excluding the radically cognitively impaired or born babies or both.

You don’t have to adopt those kinds of exclusionary beliefs. You can accept the human rights for all humans view instead. But it is, we think, one or the other.

As said above, this argument does not settle the abortion debate. That’s because establishing that a creature is our moral equal or that they have an equal right to life doesn’t itself always settle the question of whether killing that creature is permissible. For example, people who believe in the equality of all born people have different views about the morality of self-defence. Most people who think that killing in self-defence is permissible don’t think that the people killed are not our equals. It might sometimes be justified to kill our moral equals for sufficiently grave reasons. Perhaps bodily rights arguments provide such reasons. We’ll write about those in another ‘episode’ of this series.

It’s worth noting again that there’s a lot more philosophical depth that you can go into in this argument. In future posts we’re going to delve into specific counterarguments, and we’d absolutely encourage readers to check out the vast literature on the subject. But a final word about the precise role of philosophical arguments here.

We – that is, you and me, all of us in the human community – don’t need to know much philosophy to know that men and women have equal basic rights; or that people of different races do; or that people of different sexual orientations do; or that people with and without disabilities do, or that born children and adults do. We don’t need to wait to hear all the potential counterarguments to set ourselves firmly against attempts to deprive people in these groups of their basic rights. We are firmly committed to human universalism already, and most of us would need a very strong argument to give it up. This argument is only really making explicit what the vast majority of us already believe.

Maybe there is a very good reason to make an exception to universalism about human rights. But in the absence of such a reason, we should refuse to exclude anyone from the scope of human equality.

Ben