As we noted in the previous posting in this series, simply passing a law to prohibit abortion or adopting a Constitutional amendment protecting personality (which already exists in the 14th Amendment) would in all likelihood be ineffective. If what A. V. Dicey called "public opinion" does not support the law, the law will either not be obeyed, or will have a substantially different effect than what was intended. For any legislation affecting abortion to be effective, there must be some sort of common ground on which Pro-Choice and Pro-Life adherents can meet and agree.
Some people have complained that using the term "Pro-Choice" is both misleading and concedes too much to the opposition. That may be the case, but (as we shall see presently) it is a meaningless concession that has the potential to provide the basis for a quantum advance for the Pro-Life movement — if Pro-Choice advocates are sincere in their beliefs, especially the existence of a right to free choice, and honest (or at least consistent) in their application of the principle.
First, we have to realize of what a right consists. A right is the power to do or not do some act in relation to others. The existence of a right (which implies the functioning of justice) necessarily involves a correlative duty. A duty is the obligation to do some act in relation to the right holder. Thus a right to a free choice regarding a specific act means that someone has the power to choose to do or not do that act, with the choice being free from coercion or undue influence exercised by others.
The right of a free choice regarding a specific act necessarily includes the right of a free choice to participate materially or not participate materially in assisting others in doing or not doing that act. For example, if slavery were legal, someone could freely choose to own a slave. The prospective slave owner could not, however, by any means force someone who does not choose to own a slave either to own a slave, to assist the prospective slave owner in any material way in procuring a slave, or to promote slavery or slave owning.
The State has a monopoly over the instruments of coercion to force compliance with its will. This, of course, must be in accordance with the general consent of the governed, as long as the general consent of the governed or the interpretation and application of that will does not violate either a natural right held by everyone (regardless of their expressed will) or the rights of a minority.
Given the legality of slavery, the State's obligation would therefore be limited to permitting people to own slaves, and to passing and enforcing laws regulating the sale, purchase, and possession of slaves (e.g., acceptable treatment, working conditions, compensation, etc.). The State would be exceeding its authority if it were to force non-slave owners or abolitionists to own slaves, promote slavery, or to subsidize slavery through the tax system — all actions that involve either active or implied coercion on the part of the State, and thus an exercise of undue influence or actual threat forcing people to act contrary to their consciences.
We can make the same observations regarding the wage system prevalent under both capitalism and socialism. Given the existence of the wage system, an arrangement that some people have described as a condition of "wage slavery," the State's obligation is limited to permitting people to subsist exclusively on wages, and to passing and enforcing laws regulating hiring, termination, and terms of employment (e.g., acceptable treatment, working conditions, compensation, etc.). The State exceeds its authority if it forces people to work solely for wages, promotes the wage system over other economic arrangements, subsidizes the wage system, or prohibits or inhibits ownership of the means of production by anyone — thereby establishing a condition of society that Hilaire Belloc called "the Servile State" in his 1912 book of the same title.
How these principles relate to the Pro-Choice debate will be covered in the next posting in this series.
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THE Global Justice Movement Website
This is the "Global Justice Movement" (dot org) we refer to in the title of this blog.
