A US Supreme Court ruling recently overturned abortion as a fundamental right and it has brought the issue of abortion to the forefront. In this article, I will discuss the problems with rights and freedoms, why they can never form a coherent legal doctrine, and how society is lost in strife when a legal system is constructed based on rights and freedoms, culminating in the absence of both rights and freedoms. I will then discuss the alternative of duties and freedoms—the freedom to perform a duty or not, and its associated consequences; the freedom is not absolute due to consequences of duty neglect. The issue of abortion serves as an example for the discussion of both rights and duties but, of course, the discussion of rights and duties is not limited to abortions.
Table of Contents
- 1 The Problem with Fundamental Rights
- 2 Legality Does Not Guarantee Morality
- 3 The Foundation of Laws in Duties
- 4 Moral Laws Don’t Contravene Freedom
- 5 Abortions and Duties of Parents
- 6 The Case of Kayādhū and Prahalāda
- 7 The Case of Krishna’s Siblings
- 8 Duties Supersede Everything Else
- 9 Resolving Conundrums on Abortion
- 10 The Origins of False Criteria for Laws
- 11 The Irrationality of Legal Doctrines
- 12 Incessant Arguments on Law
- 13 The Rational Way to End Arguments
The Problem with Fundamental Rights
Historically, the right to abortion was established under the constitutional grant of the right to privacy, arguing that women have rights over their bodies, so whatever is inside their body—a child in this case—was private property, like other bodily organs. A woman thus had rights over the child’s life owing to the right to property and ownership of her body, as long as she carried the baby.
Now, legal experts split hairs on whether the right to privacy and property are fundamental, whether a child can be called a woman’s private property, etc.
But the fact is that (a) the fundamental right to privacy is already violated by government surveillance, (b) the child ceases to be the property of parents when it turns 18 so it is at best on lease to the parents, (c) children are often taken away from abusive parents breaking their child rights, (d) the government can invade and seize your personal property (e.g., a house or a car) if it is used for criminal activities, (e) the government can restrict the ownership of private property by taxing some segments of the society more than others, and (f) the government often decides whether you have a right to calling something a private property (e.g. inventions, copyrights, and trademarks).
Therefore, if you are going to argue about fundamental rights and base the right to abortion upon the rights of privacy and property, then you already have dozens of legal precedents under which these rights are viscerally violated.
The abortion issue is also motivated by politics (i.e., conservatives vs. liberals), race (abortion among black women is 4-5 times that of white women), taxation (US medical aid programs often bear the cost of abortions, and subsequent healthcare, raising tax burdens), and religion (the economic costs of personal morality are distributed to the rest of the population through taxation).
Legality Does Not Guarantee Morality
Under the legal doctrine of rights, if someone violates their duty, then those with the rights of expected outcomes can prosecute them. But since that prosecution can be excessive, therefore, even criminals must have rights. This system of “checks and balances” neither checks nor balances in as many cases as it does. Criminals often use their rights to escape punishment because they can tie up the legal system in knots. Those who neglected duties escape by citing a lack of evidence that they had an explicit role in the outcomes.
Those delivering “justice” are thus compelled to operate outside the bounds of the law, and at that point, it becomes impossible to decide right and wrong on any issue. You could do the right thing for the wrong reasons or the wrong thing for the right reasons. Thus, everyone is disillusioned or cynical about the law, if they still believe in right and wrong. If they don’t, and they merely accept legal doctrines as the definition of right and wrong, then upholding the law becomes an end in itself, while the law is used sometimes to do the right thing and sometimes to do the wrongs. It doesn’t matter, because it is the law.
The Foundation of Laws in Duties
The modern legal system—based on the idea of rights—has been a farce from the start, because there are no rights—fundamental or otherwise. There are only duties—fundamental and others. Law has to be about duties, punishing those who willingly neglected the duties and rewarding those who endured suffering to perform their duties. When the law is based on duty performance, then there is a discussion on the nature of duty, and its determination based on time, place, situation, and person, ending the conversation about rights.
Duties are necessary and sufficient conditions for rights fulfillment. But rights are neither necessary nor sufficient conditions for duty fulfillment.
Therefore, if we want to understand what is right and wrong in the case of abortion, then we have to begin with the discussion of duties, instead of discussing rights. Generally speaking, it is the duty of a mother and a father to protect their children, teach them about duties, and wean them away from the entitlement of rights. It is also the duty of parents to not produce children if they cannot perform the abovesaid duties. Therefore, generally speaking, abortion is a dereliction of duty, and therefore abortions are immoral.
However, duties are hierarchical—some duties are more important than others. A binary distinction between fundamental and other is inadequate to capture the hierarchy of duties, so we can use the term higher and lower duties. But since there is one highest duty, hence, it could be called the fundamental or highest duty while everything else is regarded as something less fundamental.
A higher duty can override a lower duty if doing the lower duty hinders the higher duty. By this criterion, it is sometimes acceptable to abort a child if it hinders the doing of a higher duty. We cannot say that abortion is always a duty, that it is a free choice, that duty is uniquely individual or the converse—abortion is never a duty, never a choice, or duties are universal.
Moral Laws Don’t Contravene Freedom
The objective determination of the morality of actions does not contravene the choice to be moral or immoral. Morality is what someone should and should not do, and it can be objectively determined for a given time, place, situation, and person (not universally). However, the choice to be moral and immoral is always personal, along with the consequences of some moral or immoral action. Choices are not “free” if a “cost” of consequences is associated with them. But one is free to make a choice and bear the consequences, or not.
This is just like money. You are “free” to decide to buy a car or not. But the car is not free. You have to pay a price to get it. Likewise, my freedom to buy a car doesn’t extend to my choice to ram it into other cars—if I do so, then there is an associated cost because there are indeed right and wrong uses of a car.
Factually, rights are always contravened by duties. But duties are only contravened by higher duties. Our choices must be subordinated to the hierarchy of duties, in order to be righteous. If we choose to misuse our choice, then we have to pay a price, due to the violation of duties. Thereby, the choice is also not completely free. Any discussion that invokes rights and freedom to use rights is always going to be misleading if it violates duties. Any discussion that invokes duties will never be misleading. Thereby, all discussion based on rights and freedom is pointless. We have to focus exclusively on duties.
Abortions and Duties of Parents
The general principle of duty is that parents must protect their children from harm, and hence abortions are immoral. However, protecting the child from harm is a lower duty. The higher duty is to give them moral education and wean them away from the entitlement of rights. If parents protect their children but fail to give them moral education, they have failed in their duties.
Thereby, a teacher, who imparts a child a moral education, must be considered higher than the parents who merely birthed it. But if a parent imparts both protection and morals, then she/he is higher than one who only does either of the two because both lower and higher duties are performed.
If a child is known in advance to be so immoral that it will destroy moral education and its teachers, then the higher duty of moral education overrides the lower duty of parental protection. In such cases, it is a parental duty to abort the child, because the lower duty of protection is overridden by a higher duty. Of course, these predictions and subsequent recommendations to parents can only be done correctly in a society where the science of karma and reincarnation is accepted and qualified persons who can apply it exist.
The Case of Kayādhū and Prahalāda
A classic case of abortion appears in the Śrīmad Bhagavatam where Indra abducts Kayādhū—the pregnant wife of the demoniac Hiraṇyakaśīpū—to kill the child in the womb before its birth. Sage Nārada protects Kayādhū and her unborn child, not on the ground that abortion is immoral, not on the ground that the child is helpless, but on the ground that the child in the womb is a great devotee of Lord Viṣṇu. Thus, it is a duty to kill a demoniac child, and a duty to protect the devotees. The higher duty to protect the devotees of the Lord and moral conduct in a society overrides the lower duty to protect a helpless child and makes killing the child a duty only if there is no alternative.
The absence of alternatives is very important. If, for instance, a child could be banished from a moral society, then there would be no need to kill it. Likewise, if the child could be corrected by education to overcome its immoral tendencies, then there would be no need to kill it. The killing of a child is permissible only if all such alternatives are impossible. If a doubt regarding the proclivities of a child exists, then child protection gets the benefit of the doubt.
The Case of Krishna’s Siblings
A converse case of accelerating the killing of children appears in the story of Vasudeva and Devaki, whose 8th child is foretold to be Kaṁsa’s killer. Kaṁsa was prepared to wait for chronologically the 8th child, but Sage Nārada poisoned Kaṁsa’s mind by saying (I’m deliberately paraphrasing to make a larger point): A set of elements could be sequenced in many ways; hence, we don’t know which child is 8th. The larger point is that quantitative numbering has no reality because of many possible sequences. Each sequence relies on a different criterion for sequencing. For example, supposing that the successive children were shorter, we could sequence the children based on their height, and the first child would be the 8th. The term 8th child is meaningless unless we specify the criterion by which we are sequencing them. The arbitrary choice of sequencing elements within a set is called the Axiom of Choice in set theory.
Due to Sage Nārada’s instigation, Kaṁsa started killing all children. Sage Nārada was impatient for Kṛṣṇa’s arrival, and he initiated the killing of children to accelerate it. His actions were not immoral because they were performed to fulfill a higher duty. The alternative of waiting longer for Kṛṣṇa’s arrival was worse than killing the children because of Kaṁsa’s persecution of the devotees and the decline in the moral population due to that persecution.
Duties Supersede Everything Else
These two examples pertaining to the protection and killing of children are drawn from the Śrīmad Bhagavatam and they are both related to the actions of the same person—Sage Nārada—just so that we can reduce the variables and quickly draw the lesson: The higher duty must supersede the lower duty.
There is no concern for rights and freedoms. There is no hurdle in the use of flawed logic, interpreting words in unconventional ways, or the pain that parents endure when their children die. Duty supersedes everything. And higher duties must always supersede the lower duties, overriding objections.
Resolving Conundrums on Abortion
Modern society throws up many conundrums regarding abortions. For example, should the child of a rapist and a rape victim be aborted, given that it was conceived without consent, under extreme mental duress of the mother, and unwarranted violence by the father? The answer, after careful consideration of the facts and people involved in the incident, could be yes.
Should a child who threatens the survival of a mother, who has other children to protect, be aborted? The answer, after careful consideration of the facts and people, could be yes. Should a child destined for a lifelong illness due to genetic flaws be aborted? The answer, in most cases, would be no. Should a child conceived as a result of consensual extramarital sex be aborted? The answer, in most cases, would be no. Should a child conceived as a result of marital rape be aborted? The answer, after consideration of the facts and people involved, could be either yes or no; the answer cannot be easily universalized.
The reasoning is always contextual and always premised on higher and lower duties. These answers cannot be universalized as a right to abort, or the freedom to do whatever one wants with their body. If the appearance of a child causes a greater degradation in morality and/or devotion to the Lord, and we don’t foresee mitigating alternatives, then abortions are duties. If, however, the appearance of a child causes no degradation of morality and/or devotion to the Lord, doesn’t hurt other living entities, or there could be mitigations to such possibilities, then abortions are contrary to parental duties.
The Origins of False Criteria for Laws
The problem today is that we are not even having the right conversation. We are talking about freedoms and rights, rather than duties, let alone higher and lower duties. Based on the false criteria for all decisions, even if we arrived at the right conclusion, it would be for the wrong reasons. This is because the entire legal framework is premised on false ideas of rights and freedoms.
These notions of rights and freedoms were created in Europe based on Christian ideals, after the rejection of karma, reincarnation, and the notion of Natural Law as a moral one (that prevailed among Hellenistic Greeks), and its replacement by arbitrary social laws created by priests and emperors.
In medieval times, Natural Law was replaced with God’s commandments in the Bible, and the idea almost died, because you could discuss the principles of Natural Law rationally but you could not discuss God’s commandments rationally. The idea of a Natural Law was later resurrected during Enlightenment although confined to the scientific study of matter. It is possible to discuss scientific laws rationally. Meanwhile, Human Law remained arbitrary, chosen by social customs, or the opinions of the vast majority of people, and its constant manipulation through propaganda and indoctrination.
The Irrationality of Legal Doctrines
This arbitrary legal system is based on the notion of inalienable rights and freedoms and it was created to destroy class structures, and disempower priests and kings, in a revolt against the upper classes. It always comes down to one question: What are these rights and freedoms, and why should they exist?
Conservatives call them God-given rights, and liberals consider them to be indispensable parts of a social contract. Basically, you can never discuss the nature of law rationally. It is either given by God or freely chosen by humans.
The fact is that the first principles of rights and freedoms are a false foundation for law. You can try, but you can never construct a sound legal doctrine based on rights and freedoms. You give a right to privacy, and then numerous exceptions to it. You give a right to property, and then numerous exceptions to it. You keep extending rights, and then the exceptions to those rights. Then you use precedents of exceptions to rights in one case and increase the exceptions to rights in another case. The logical culmination of this process is that people end up with no rights and no freedoms because there are too many exceptions to rights and freedoms, and one precedent naturally justifies another.
Incessant Arguments on Law
The standard argument for rights goes like this: Your nose ends where mine begins. But the fact is that since practically everything impacts everything else, therefore, when you give people rights, then you enable them to poke their nose into other’s affairs. After all, one person’s rights infringe on the other person’s rights, and any infringement of rights by others gives them the right to poke their nose into others’ affairs. The more rights you give, the more people poke their nose into the affairs of others. Now, you can uphold some rights only by curtailing other rights, and the process of diminishing rights ensues.
People are restrained from poking their noses into other’s affairs only by the power to bloody other’s noses without being hurt in return. It is a recipe for acrimonious debates, violence, and the pursuit of power to hurt others.
Under violence, people with power curtail the rights of others and assign it to themselves. The losing side tolerates the miserable conditions for some time and eventually revolts to reverse the power imbalance and recreate a new system of rights and freedoms. The see-saw can go on forever.
The Rational Way to End Arguments
The only way out of this problem is to reject legal doctrines based on rights and freedoms and return to a rational discussion on a Natural Law based on duties. This involves rejecting two things: (a) the idea that human laws are human-created, and (b) the idea that laws are based on rights and freedoms.
After rejecting these falsities, we can talk about the Natural Law of morality, how the law is based on duties rather than rights and freedoms, how freedom is subordinate to the laws, and how absolute freedom is gained by the perfectly dutiful. This is a progressive continuum under which everyone aims for absolute freedom, but they obtain it by becoming perfectly dutiful.