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Abortion law

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 preposterous justification.

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 doing so.

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 .

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