Rightlessness: The Perplexities of Human Rights

Everything seems out of nature in this strange chaos of levity and ferocity, and all sorts of crimes jumbled together with all sorts of follies. In viewing this monstrous tragic-comic scene, the most opposite passions necessarily succeed, and sometimes mix, with each other in the mind; alternate contempt and indignation; alternate laughter and tears; alternate scorn and horror.

Edmund Burke, Reflections on the Revolution in France

At the time of writing (November 2010) legislative assemblies and voters in several of the United States have recently considered or are soon to consider bills and propositions known as “personhood bills” or “human rights amendments.”¹ On the face of it the proposed pieces of legislation are quite simple. They purport merely to determine the interpretation of the word “person,” and sometimes the words “individual” and “human being,” in state constitutions and laws, to clarify that these words also refer to human beings who have been conceived but are not yet born. For example, the proposed amendment to the Colorado Constitution’s Bill of Rights, defeated by voters in the November 2010 elections, reads as follows: “Person defined. As used in sections 3, 6, and 25 of Article II of the state constitution, the term ‘person’ shall apply to every human being from the beginning of the biological development of that human being.” Using a slightly different phrasing, the bill passed by the North Dakota House of Representatives on February 17, 2009—but defeated in the Senate the next month—asserts, “For purposes of interpretation of the constitution and laws of North Dakota, it is the intent of the legislative assembly that an individual, a person, when the context indicates that a reference to an individual is intended, or a human being includes any organism with the genome of homo sapiens.”²

To most supporters of human rights these legislative efforts present something of a perplexing spectacle. Critics are no doubt absolutely correct to point out that this defense of the human rights of fetuses also constitutes an attack on the human rights of women. It is the explicit hope of the supporters of these efforts, including Personhood USA, a nonprofit, evangelical Christian, pro-life campaign group, that these unassuming acts of definitional clarification will render stem cell research, human cloning, and abortion illegal. “What supporters of this approach don’t mention,” writes Lynn M. Paltrow in an article published in The Huffington Post in March 2009, “is that if the unborn have legal personhood rights, pregnant women won’t. There is really no way around this. . . . [I]f successful, this strategy will mean that upon becoming pregnant, women will lose their civil and human rights.” Human beings, we might say, are born free and equal in rights. They are not, as Personhood USA maintains, “preborn” with rights.

Proponents of the personhood bills and human rights amendments, however, seem to sincerely believe that theirs is a campaign in defense of human rights. Focusing exclusively on the reproductive rights of women, they contend, obscures what is really their basic point: human fetuses and even embryos are members of the human species and hence possess all the inalienable rights that attend such membership. If defending the right to abortion necessarily involves denying that human beings have an inalienable right to life from conception, simply by virtue of being biologically human, then it is this position that, to this wing of the pro-life movement, looks a lot like a violation of the rights of human beings. In this sense their use of the world’s most famous animal rights philosopher, Peter Singer, to personify what they understand as an assault on human equality reveals a remarkable consistency.³ As efforts to legislate rights on the basis of the ethically relevant distinction between specifically human beings and all other beings, personhood bills, it could be said, are loyal to the very idea human rights presuppose. They merely aim to legally protect the rights of all those who are—or all that which is—genetically human by rigorously upholding what human rights discourse already states, namely, that being human...