Ethics and abortion law
By Dr Janet Radcliffe-Richards
This addition to the site is based on a presentation given
at the conference 'Abortion, Ethics and the Law' held at
Kent University, November 1998.
How do you find a morally good abortion law? The most obvious
way is to start by working out the moral principles that
will form the basis of the law, and then seeing what their
implications are for practice. Ethicists such as John Harris
work this way round. His arguments about the attitude we
should take to the fetus lead to the conclusion that there
should be no restrictions on the availability of abortion.
Other people start from the moral claim that full human
rights should begin at conception; and their position has
the implication that abortion is murder and should be forbidden.
To settle a disagreement of this kind, you need to argue
about which of the moral premises is right-which means going
deep into moral philosophy.
But you can also work the other way round. You can start
with some possible or actual law, and then test it by working
backwards to see what moral principle could provide a justification
for it. The first test here is to see whether there is a
coherent moral underpinning at all, and then, if so, whether
it is acceptable.
Taking the matter this way round is particularly interesting
in the case of societies like ours, where the abortion law
is neither totally permissive nor totally prohibitive. It
is widely accepted that abortions should not be allowed
on demand, but are permissible under certain specified conditions.
But what moral principle can explain why the specified ones
are permissible while others are not? This is much more
difficult than it might appear.
Abortion laws that are restrictive but not prohibitive differ
in their details, but there are various recurring themes.
Time usually acts as a constraint: abortions may be freely
or relatively easily available in the early stages, and
difficult or impossible later. But my main concern here
is with the kinds of circumstance widely regarded as essential
to justify any abortion at all. Of these the most familiar
are the cases of rape, of abnormality or possible abnormality
of the fetus, and of danger to the health of the mother.
All of these are to be found as justifications for abortion
in the laws of different countries. But what kind of moral
principle might justify allowing abortions in these cases,
but not in general? (1)
First, consider rape. Most people would agree that a woman
who has been raped should not have to go through with her
pregnancy. But what makes it acceptable for a woman who
has been raped to have an abortion, while one who has not
can't? What is the relevant difference between the two cases?
It can't be the status of the fetus, since that is identical
in both. That means the difference must be to do with the
mothers. What is the relevant difference between them? That
may seem obvious. If a woman is pregnant through rape it
is not her fault, but if she hasn't been raped it is; if
she didn't want the risk of an unwanted child she shouldn't
have had sex. But even if that is accepted, it's only the
beginning of an answer. We now need a principle that explains
why this difference implies that the first woman can have
an abortion, and the second can't.
That probably seems obvious too. If something isn't your
fault you don't deserve to suffer, and you should be helped
to avoid it. But even if that seems right, we still have
to explain why the woman who has not been raped should be
forced to have her child. It's no use saying that her unborn
child has full human rights and therefore can't be killed,
since this would apply just as much to the woman who has
been raped. You can't kill an innocent human being just
to save another from undeserved harm. If the fetus can be
killed in the case of rape, it is not being regarded as
a full human being; and this means that this can't be the
reason for its being forbidden in other cases.
Try, then, going back to the idea of responsibility. We
do have a general principle that we should sympathize with
and help the victims of misfortune-like the woman who has
been raped-while not rushing to the rescue of people who
have only themselves to blame for their predicament.
But even if that principle sounds acceptable in itself,
it still can't justify allowing abortion in case of rape
but not otherwise. If our concern were to help the unfortunate
while not digging the feckless out of holes of their own
making, we might say we would provide and pay for abortions
for women who had been raped, while not giving any help
to the others. But that isn't the distinction that needs
explaining. We need to explain, not why the unraped woman
isn't helped to get an abortion, but why she is forbidden
to get one, even by her own efforts.
Under what circumstances do we tell people who have got
into trouble, not just that we won't help them, but that
we will actually prevent them from extricating themselves
by their own efforts? The only context seems to be when
we want to punish them. Forbidding abortion to make the
child an instrument of punishment is a long way from regarding
its life as sacrosanct, but it is hard to find anything
else that fits the situation here.
But in that case, a punishment for what? It cannot be for
being pregnant, since nobody thinks that is wrong in itself.
Could it be her having chosen to indulge in sex without
wanting to be pregnant? This also sounds absurd; but it
is difficult to find anything else that fits.
Now this argument is, I must emphasize, about the logic
of the matter, not about people's motives. I'm not suggesting
that such motives must always underlie the feeling that
raped women should be allowed abortions and unraped ones
not: many ideas of this kind are probably just confused.
People probably have some feeling that a child should not
be sacrificed lightly, and some feelings about desert and
carelessness, and don't see the difficulties of fitting
them into a coherent whole. I have been asking what principle
could possibly underpin the idea that you could have an
abortion if you were raped, but not otherwise, and this
is the only coherent way I can find to account for laws
that take this form. It amounts to a challenge. Anyone who
wants to defend a law of this form can try to find a less
However, this is not at all easy. And in the meantime, there
is quite a lot of evidence to suggest that ideas of punishment
really are lurking, unacknowledged, in the background. For
instance, women who did manage to get abortions were often
denied anaesthetics; apparently if they were to escape having
an unwanted child, they were to be made to suffer in other
ways. I'd be interested to know how many people who oppose
abortion are also opposed to recreational sex.
The next topic-the case of an abnormal or possibly abnormal
fetus-is even more complicated. Once again the challenge
is to find a principle that draws the line between a woman
who is pregnant with a normal child and does not want it,
and one whose child is, or may be, abnormal in some way.
Now here it does sound as though the distinction is concerned
with differences between the unborn children, rather than
the mothers. But if so, what is this difference? It seems
that one fetus is being regarded as having entitlements
that the other has not: perhaps that the normal fetus, but
not the abnormal, has a right to life. Is this the idea?
If so, it is strongly out of line with what we think about
the rights of children and adults. We do not think disabled
people can be killed at will. So if we are to say that a
disabled person has full human rights, while an abnormal
fetus has not, we shall have to say those rights don't come
into existence until birth. But if so, why can't the woman
with the normal fetus have an abortion? Are we going to
say that normal fetuses have full human rights all the way
along, but abnormal ones only after birth? If so, on what
basis? The idea sounds quite arbitrary.
We might try to argue that allowing abortion for abnormality
was about preventing suffering: that we should not place
on the abnormal the burden of life not worth living. But
that doesn't work either. For instance, one of the commonest
grounds for abortion is Down's syndrome; and a person with
Down's need not suffer at all. And most physically disabled
people regard life as well worth living. If unendurable
suffering is the issue, it would be better to have abortion
only if it looked as though the child's life would be worse
than nothing- and, furthermore, to allow infanticide and
the assisted suicide of adults for the same reason. It can't
provide a justification for a law that makes a general distinction
between abortion for normal and abnormal fetuses.
And the problem is complicated further if abortion is thought
acceptable in the case of a possibly abnormal fetus. Even
if you can somehow explain how the normal fetus has full
human rights while the abnormal one does not, that still
leaves the problem of explaining why the possibly abnormal
can be killed. You can't kill something that may have full
human rights on the grounds that it may possibly be something
else without full human rights. At the very least, it would
be more consistent to wait until it was born, and then kill
it if it is abnormal.
So is it possible to find any coherent explanation at all
of a law that allows abortion for abnormal fetuses, but
not otherwise? Not, I think, if you try to base the argument
on the rights of the unborn child. But if we go back to
the mothers again, there is a possible explanation along
the lines of the one I gave in the case of rape. The idea
makes sense-more or less-if you think that we shouldn't
allow abortions to women who have only themselves to blame
for unwanted pregnancies, but should allow an escape to
respectable women who have had sex for the right reasons,
and then, through no fault of their own, found themselves
carrying the wrong sort of child. Again, this may sound
preposterous, but what else fits?
The final issue is abortion for the health and well-being
of the mother. This sounds a better justification: it implies
that although the fetus does not have full rights to life,
it is important enough not to be sacrificed frivolously,
and can be aborted only for good enough reasons. But if
that is the reason, there should be a careful specification
of what counts as a good enough reason, and objective-perhaps
legal-processes to decide whether some candidate reason
meets the criterion. At the moment, in Britain at least,
everything depends on individual doctors' entirely subjective
interpretations of damage to health. If a woman goes to
a doctor who is in favour of abortion she will get one without
difficulty; if she goes to one who is against it, she may
find it difficult or impossible. In theory the law seems
concerned with preventing frivolous abortions; in practice,
it does nothing at all to check the level of justifications.
All it does is make sure women have to jump through hoops
rather than deciding for themselves-with the outcome, of
course, that rich or educated women can get abortions on
demand, while the others have to take their chance.
I used to think that abortion was not a feminist issue;
and, indeed, the most fundamental abortion question is not.
The first question is about whether the fetus should be
regarded as having full human rights, and that must be decided
independently of the interests of the mother. You can't
argue against someone who says that a fetus has full human
rights by saying that this is bad for the mother; imagine
using that to argue that women should be allowed to dispose
of their troublesome five-year-olds. But I think liberal
abortion laws do turn the matter into a clearly feminist
issue. What these arguments seem to show is that once you
have crossed the threshold to allowing any abortions, you
have shown that you do not regard the unborn child as having
full human rights; and after that, the kinds of restriction
commonly accepted can be explained not in terms of the value
of unborn children, but only in terms of quite unacceptable
attitudes to women and sex.
So, given the evidence that the law does not regard the
unborn child as a full person, and is not even trying to
make a serious distinction between good and frivolous reasons
for allowing abortion, feminists are entitled to say that
most current abortion laws harm women without justification.
This doesn't answer the people who say that life is sacred
from conception; but it does provide a complete answer to
the liberal legislatures who have already conceded that
it is not.
The present state of the abortion law shows that there can
be no legitimate objection to, for instance, abortion on
demand at least in the early stages of pregnancy: to completely
free access to morning-after pills, menstrual extraction
and other precautionary measures, and, after pregnancy is
confirmed, to quick and safe abortifacients. And the same
applies to related matters concerned with education and
access to contraception. Anyone who thinks that people should
not be conceiving children they do not want, without at
the same time thinking that women should avoid sex unless
they want children, should also be in favour of absolutely
compulsory sex education and contraceptive provision, which
no school should be allowed to avoid, and from which no
parents should be allowed to withdraw their children.
Politically speaking, feminists in countries with liberal
abortion laws have no need to go into the depths of moral
philosophy and the extent of human rights to make their
case. They can do it by challenging the supporters of the
present laws to find a coherent and acceptable justification
for not going further, into the fully liberal scheme most
feminists want. So far, there has been no sign of anyone's
© Janet Radcliffe Richards
1 An earlier and fuller version of these arguments is given
in Ch 8 of my book The Sceptical Feminist: a philosophical
enquiry, Routledge 1980; Penguin 1982 and 1994 .