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I don't ken the emboldening. The positive duty for pro-abortionists is to make abortion accessible, free, legal, and a universal human right. This positive duty is obviously MORE (not "less") powerful than the negative duty — which is not to hinder abortion. Why? Just because pro-birthers don't hinder abortion, doesn't mean pro-birthers will donate money to fund abortions or report to the Royal College of Physicians physicians who don't abort women . Pro-birthers can be willfully blind.

Herring, Criminal Law: Text, Cases, and Materials (8 edn, 2018). p. 106

J. Dressler, ‘Some Brief Thoughts (Mostly Negative) about “Bad Samaritan” Laws’ (2000) 40 Santa Clara Law Review 971 at 981– 9 2.

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There is one final reason to question the wisdom of BS [Bad Samaritan] statutes. Not only are positive duties morally less powerful than negative ones, but they also restrict human liberty to a greater degree. A penal law that prohibits a person from doing X (e.g. unjustifiably killing another person) permits that individual to do anything other than X (assuming no other negative duty). In contrast, a law that requires a person to do Y (e.g. help a bystander) bars that person from doing anything other than Y. The edict that ‘no student may laugh aloud at a fellow student’s silly answers to a professor’s questions’ only marginally restricts a student’s autonomy— she can silently laugh at her colleague, sleep through the answer, or walk out of the room to protest the student’s stupidity, just to name a few examples. However, a rule requiring a student to ‘provide reasonable assistance to a fellow student in jeopardy of offering a silly answer to a professor’s question,’ not only is less precise, but also prevents students from doing anything other than help.

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  • TIL about BS Statutes.
    – Scott Rowe
    Sep 27, 2022 at 23:25

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I think it's easier to understand this question if it is couched within the concept of rights. It is assumed that individuals and groups have broad rights of free action; that's the general understanding of the concept of 'liberty'. A negative duty is a (self) imposed restriction on action meant to allow another to exercise their own rights in some context; a positive duty is a direct action meant to enable another to exercise their own rights. The former does not imply any particular action except self-restraint, and has no impact on others except to allow them a measure of liberty. The latter outlines a program of action that must be followed, and can have a distinct impact on the liberty of all parties involved.

To use you example, pro-life (anti-abortion) activists feel they need to protect and foster the right-to-life of fetuses. They have (from their view) a positive duty to to do so, and engage in programs of behavior meant to restrict the liberty of women seeking abortions. By contrast, pro-choice activists (from their view) simply want to allow women the right to have an abortion if they so desire. The duty they are advocating is negative: freedom from interference with that particular act, so that a woman may have control over her body and her life. The pro-choice position asks nothing from others except that they refrain from interfering with a particular right of women. The pro-life position demands that others (women) take on the role of motherhood, with all of the costs, problems, and restrictions of liberty that implies. The second position calls for a far greater exertion of social power, and is far more invasive of the rights and liberties of others.

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  • I am trying to think of any really compelling positive laws / duties that currently are enforceable, in the US for example. Maybe I'm just not remembering any at the moment. Are there some obvious examples? If there are not, then suddenly trying to shoehorn one in seems like a non-starter. So for example, the law against murder does not require me to become physically responsible for someone, or even keep them from dying of other causes. If someone wants me to be responsible for others, they need to provide the tools, training and pay me to do it. Yes?
    – Scott Rowe
    Sep 27, 2022 at 23:32
  • Positive duties are all over the place, though they are almost always contentious. The Right-to-Life movement aside, think about the duty to provide basic education (universal k-12), the duty to offer equal opportunity (EEO, fair housing, etc), the duty to respect differences in religion (1st amendment), etc. The problem is that it's much easier to get people to (grudgingly) leave others alone than it is to get them to (grudgingly) offer others support.
    – Ted Wrigley
    Sep 28, 2022 at 1:10
  • Ok, I was thinking of duty in an individual sense. I personally don't have to educate anyone. But if one woman comes in for a procedure, either she gets to have it, or she doesn't. No specific person must provide it though. But about that wedding cake a few years ago in Indiana... Hmm.
    – Scott Rowe
    Sep 28, 2022 at 10:21
  • @ScottRowe: Generally speaking, abortions must in fact be provided by someone else. Performing an abortion (or any medical procedure) on oneself is extremely dangerous and misguided. But I do understand that many people confuse selfishness for individuality. It's a problem.
    – Ted Wrigley
    Sep 28, 2022 at 13:56
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They demand more of the people obligated to perform the duties.

Negative duties impose the obligation to not do something to another person. So not killing them, not violating their rights etc. It doesn't demand that you do any action irrespective of your will. You just can't do some actions you might otherwise wish to.

Positive duties mean that you actively have to do something. So if someone has a positive right to not be homeless, and you are in a position to do something about it, then there's a set of actions you must perform to bring it about that they aren't homeless.

So one answer is that it requires less justification to say "you can't do X" than "you must do Y". Negative duties bar you from a much smaller set of actions, so are easier to defend on that count, and the actions they bar you from aren't intuitive rights in the first place. "I have a right to do X to you" is much less often uttered than "I have a right not not have X done to me".

To apply these considerations to your question, I think you're confused over who gets the rights and why. The lines of positive vs negative duties with regards to this topic doesn't fall down between:

Pro abortioners: Positive duty to make abortion accessible.

Anti abortioners: Negative duty to stop them.

That just doesn't capture the abortion debate at all. Instead, the debate is over whose negative right, the mother or the fetus, gets priority:

Pro abortioners: They say that the negative right to not be interfered with is the right that should be considered. The corresponding negative duty of other people is to not stop her aborting.

Anti abortioners: The negative right of the fetus to not be terminated is the right to be acted on. The corresponding negative duty of the mother is to not abort.

So you've misunderstood how positive and negative duties/rights apply to the case you have in mind. In particular, pro abortionists don't have a positive duty to make abortions accessible, on the basis of the pro-abortion position. Maybe they have a positive duty to for other reasons, but believing that abortion should be legal doesn't commit you to the position that you have a positive duty to help them happen.

Similarly, if the pro abortion case is correct, there is no positive duty imposed on pro abortion types. Maybe they have a positive duty to help abortions become accessible for pother reasons, but the correctness of the pro abortion case entails that they shouldn't actively stop abortions from happening.

I hope this clarifies things.

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