Over the last couple of weeks, the abortion debate has come to the forefront of cultural issues in ways that few could have anticipated. On January 22, the forty-sixth anniversary of Roe v. Wade, Governor Andrew Cuomo signed into law New York’s Reproductive Health Act. This bill guarantees access to abortion through the third trimester. In celebration of this action, Gov. Cuomo ordered that the tower on One World Trade Center to be lit up in pink. In the days that followed, Virginia Delegate Kathy Tran introduced a bill in the Virginia General Assembly to relax abortion restrictions in the third trimester. Embattled governor Ralph Northam endorsed the bill, but it failed to pass in the Assembly. Other similar legislation is being worked on in Rhode Island, Massachusetts, and Vermont.
What has been most interesting in this current cultural debate is the honesty with which supporters of abortion have spoken about these bills. In the years immediately following the Roe decision, the typical response of abortion supporters was that they wanted abortion to be safe, legal, and rare. They seldom spoke of the realities of abortion and never dared to mention how much access they wanted. Today, proponents of these legislative measures are being very honest about aborting children up to the point of birth. Gov. Northam has even been accused of defending infanticide due to comments he made in an interview that suggested a doctor could refuse care to a newborn and allow the child to die.[1]
The arguments being made by abortion proponents primarily deal with radical autonomy and self-ownership. They make the case that a woman should have absolute rights over her own body without any concern for the child growing in her womb. In a press release following his signing of the Reproductive Health Act, Gov. Cuomo stated, “Today we are taking a giant step forward in the hard-fought battle to ensure a woman’s right to make her own decisions about her own personal health, including the ability to access an abortion. With the signing of this bill, we are sending a clear message that whatever happens in Washington, women in New York will always have the fundamental right to control their own body.”[2]
Most of these abortion proponents would probably argue that a right to control one’s own body is enshrined in the founding documents of the United States. This is generally understood to be drawn from the “penumbras” and “emanations” of the Bill of Rights according to Griswold v. Connecticut and out of the 14th Amendment’s restriction on the state from depriving “any person of life, liberty, or property, without due process of law.” Applied to the abortion issue, these ideas regarding the right to privacy form the foundation of the Roe v. Wade decision that opened the door for abortion on demand.
Even though most abortion-rights proponents do not make the explicit connection, the right of self-ownership is typically attributed to the work of John Locke in The Second Treatise of Government.[3] Locke writes, “Though the earth and all inferior creatures be common to all men, yet every man has property in his own person. This nobody has any right to but himself” (V. 27). There is no doubt that John Locke’s work was very influential upon the Founders of the United States, and language from the Second Treatise appears directly in the Declaration of Independence and the Constitution. However, are we correct in inferring a right to self-ownership of our bodies from Locke?
Locke’s premise of self-ownership is based on the idea that an individual in the state of nature has liberty to do what he wishes with his own property and possessions without depending upon the will of another man. It is in the state of nature that we find inherent rights to life, liberty, and property. It is at the intersection of the rights of liberty and property that we find those who make the claim for absolute liberty in self-ownership.
How does this apply to the abortion debate? Abortion proponents generally adopt an understanding of absolute liberty in self-ownership that would allow them to do anything they want with their own bodies. Therefore, the choice to end a pregnancy on the basis of self-ownership is the natural consequence of this absolute liberty. No person or governing authority has the right to limit this freedom. As a result, the woman can choose to have an abortion without consulting the father, the government, or the unborn child.
With Locke’s words that “everyone has property in his own person” ringing in the background, abortion-rights advocates declare that neither the government nor the citizenry can tell any woman what she can or cannot do with her body. They call for absolute liberty regarding the body based on self-ownership.
Considering Locke’s influence on our most important founding documents, it may seem that there is a solid case to be made that the Founders implied self-ownership in the language of the Constitution. However, there is a glaring problem regarding its application to abortion—Locke himself did not view self-ownership as an absolute right. Locke explains in the Second Treatise:
But though this be a state of liberty, yet it is not a state of licence, though man in that state have an uncontrollable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself, or so much as any creature in his possession, but where some nobler use than its bare preservation calls for it. The state of nature has a law of nature to govern it, which obliges everyone. And reason, which is that law, teaches all mankind who will but consult it that, being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions. (II. 6)
According to Locke, then, self-ownership is a limited right. One cannot destroy himself or another creature in his possession without a nobler use than mere preservation. Aborting the life of an unborn child for the sake of convenience or because the child is unwanted does not meet Locke’s test of a nobler cause.
Locke further clarifies, “For men being all the workmanship of one omnipotent and infinitely wise maker, all the servants of one sovereign master, sent into the world by his order and about his business, they are his property whose workmanship they are, made to last during his, not one another’s pleasure” (II. 6). Right here Locke denies absolute self-ownership and actually places the true right of ownership in the hands of God. It is the Creator who has absolute control over the body, and we are stewards of our own bodies.
If the limitation of self-ownership by Locke were not enough, he makes another argument that would deny an absolute right of self-ownership as justification for abortion. Later in the Second Treatise, Locke addresses the question of parental authority and the duty that parents owe to their own children. He writes, “The power, then, that parents have over their children arises from that duty which is incumbent on them to take care of their offspring during the imperfect state of childhood” (VI. 58).
Notice that while parents have authority and power over their children, it arises from the duty and obligation they have for their children’s care. This arises during what he calls the “imperfect state of childhood.” As evidenced from other discussions regarding the authority of parents, Locke considers this imperfect state to be the time during which a child has not developed the full rational capacity to make his own choices.
Interestingly, many abortion proponents make the case that the reason why a child in the womb can be aborted is that he has not developed the rational capacity to be a person. Since they believe personhood is achieved, then they declare that the child in the womb has no right to life. His life can be terminated without consequence.
However, Locke seems to disagree. He believes it is incumbent upon the parent to fulfill her duty toward the “imperfect” child, which would include protection of that child’s life. At this point, we have a clash of rights. The mother wants to exert her right of self-ownership, but the unborn child has a right to life. Since the right of self-ownership is not absolute, the child’s right to life trumps self-ownership. In Locke’s view, parental obligation requires that we protect the rights of the child, the chief of which is the right to life.
Therefore, invoking Lockean self-ownership is not consistent with abortion. If the “penumbras” and “emanations” of the Constitution speak of a right to privacy and self-ownership, they most assuredly speak in Lockean terms. His influence on the Founders is undeniable. If Locke’s ideas are the ones speaking about self-ownership, then we need to consider his thoughts in their context. As we have seen, Locke’s understanding of self-ownership is not absolute, and he places an incumbent duty on parents to protect the rights of their children. Taken together, these ideas nullify a right to abortion based on a supposed right to privacy and self-ownership.[4]
[1] Alexandra DeSanctis, “Democrats Overplay Their Hand on Abortion,” The Atlantic, February 4, 2019.
[2] “Governor Cuomo Signs Legislation Protecting Women’s Reproductive Rights,” January 22, 2019, https://www.governor.ny.gov/news/governor-cuomo-signs-legislation-protecting-womens-reproductive-rights.
[3] John Locke, The Second Treatise of Government, in Political Writings, ed. David Wootton (Indianapolis: Hackett, 2003).
[4] This article is an update to “Abortion and Self-Ownership” that I wrote for the ERLC and was published in Canon & Culture. The original version is now available on the ERLC resources page at https://erlc.com/resource-library/articles/abortion-and-self-ownership.
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