You Can't Always Get What You Want: A Gewirthian Model of Rational Autonomy in Abortion

The law regulating the availability of abortion is problematic both legally and morally. It is dogmatic in its requirements of women and doctors and ignorant of would-be fathers. Practically, its usage is liberal - with s1(1)(a) Abortion Act 1967 treated as a ‘catch all’ ground - it allows abortion on demand. Yet this is not reflected in the ‘law’. Against this outdated legislation I propose a model of autonomy which seeks to tether our moral concerns with a new legal approach to abortion. I do so by maintaining that a legal conception of autonomy is derivable from the categorical imperative resulting from Gewirth’s argument to the Principle of Generic Consistency: Act in accordance with the generic rights of your recipients as well as of yourself. This model of Gewirthian Rational Autonomy, I suggest, provides a guide for both public and private notions of autonomy and how our autonomous interests can be balanced across social structures in order to legitimately empower choice. I claim, ultimately, that relevant rights in the context of abortion are derivable from this model.

Law, Rights and Reproduction: Reproductive Autonomy in Ethical Rationalism

As medical technology has advanced, so too have our attitudes towards the level of control we can expect to hold over our procreative capacities. This creates a multi-dimensional problem for the law in terms of access to services which prevent conception, access to services which terminate a pregnancy and recompensing those whose choices to avoid procreating are frustrated. These developments go to the heart of our perception of autonomy. In order to evaluate these three issues in relation to reproductive autonomy, I set out to investigate how the Gewirthian theory of ethical rationalism can be used to understanding the intersection between law, rights, and autonomy. As such, I assert that it is because of agents’ ability to engage in practical reason that the concept of legal enterprise should be grounded in rationality. Therefore, any attempt to understand notions of autonomy must be based on the categorical imperative derived from the Principle of Generic Consistency (PGC). As a result, I claim that (a) a theory of legal rights must be framed around the indirect application of the PGC and (b) a model of autonomy must account for the limitations drawn by the rational exercise of reason. This requires support for institutional policies which genuinely uphold the rights of agents. In so doing, a greater level of respect for and protection of reproductive autonomy is possible. This exhibits the full conceptual metamorphosis of the PGC from a rational moral principle, through an ethical collective principle, a constitutional principle of legal reason, a basis for rights discourse, and to a model of autonomy. Consequently, the law must be reformed to reflect the rights of agents in these situations and develop an approach which demonstrates a meaningful respect of autonomy. I suggest that this requires rights of access to services, rights to reparation and duties on the State to empower productive agency.