Moral Conclusions and Legal Regulation

Needless to say, regulating abortion is not the same as moralizing about it. Between morally permissible abortion practice and morally defensible regulation, there are any number of considerations to weigh in, not the least the fact that the law is rarely perfectly complied with, and in this area in particular. One sceptical worry might be that once all of the relevant factors are accounted for, hardly any role will be left for our thinking about fetal moral status when deciding on the correct legal framework for abortion.

A gap between what morality condones and what the law ought to permit can arise in more than one way. One way is where abortion regulation flies in the face of pragmatism—if, all things considered, enforcing morally proper abortion practice is counter-productive, if it merely augments overall harm done, or if it simply makes no difference, in which case it is inexpedient. This might be the case if, for instance, coercively removing abortion options does not reduce or discourage unacceptable abortion practice, but only fuels demand for unprofessional and unsafe practitioners, endangering women’s health and lives. This is the well-rehearsed ‘back-street abortion’ argument.

The ‘back-street abortion’ argument claims, in short, that since abortion practice will go on whether it is prohibited by law or not, and since illegal abortion is more dangerous for women than legally and medically regulated abortion, we should eschew abortion prohibitions whether or not abortion is morally permissible. The prohibition serves no purpose except to create needless risk of harm to women, who are likely to turn, in desperation, to unsafe ‘back-street’ abortionists. The historical prevalence of illegal and hazardous abortion in the United Kingdom and in the United States prior to the liberalization of their respective abortion laws is often presented as evidence of the extreme imprudence of banning abortion, whatever its moral character.[1]

We should bear in mind that the back-street abortion argument does not apply exclusively to a blanket prohibition. Rather, it might be unleashed against any specific abortion restriction. For instance, someone might claim that prohibiting ‘late’ abortion (say, post-twenty-four weeks) would only lead scores of women intent on procuring abortion late in pregnancy to find amateur means of doing so—including self-performed abortion. Hence, even if we believed that abortion only becomes morally impermissible past some late stage of pregnancy, the argument from counter-productivity might still be used to oppose legal restrictions on late abortion.

The back-street abortion argument strikes many people as convincing. If attempting to prevent abortion through illegality (if and where it ideally would be prevented) is futile in any event, minimizing the harm to women that prohibition would only cause might appear to be the morally optimal policy. To start with, however, the inefficaciousness of abortion prohibitions can be exaggerated in some versions of the argument. Whilst it is true that criminal abortion laws will never deter all abortion, law abidance is a concern for enough people, I think, that we can presume a prohibition would appreciably reduce the number of abortions otherwise performed.[2] Not everyone will be willing to break the law to obtain an abortion. Moreover, the fact that a criminal prohibition will not deter all malfeasance is not generally accepted as a reason to dispose of a prohibition where the conduct is regarded as truly immoral and harmful. The fact that some theft, rape, and murder will always take place in spite of criminal prohibitions is not a good argument for the repeal of our theft, rape, or murder laws. There is no efficacy condition of absolute deterrence attaching to legal prohibitions on homicide, or indeed on any other offences against the person, and potential perpetrators of crimes involving harm to others cannot expect for the law to be guided by foresight of their recalcitrance and possible self jeopardy when framing its prohibitions.

That is just one indication that the success of the back-street abortion argument depends on our other moral commitments regarding abortion. The main argument, we saw, is not just that many women will be undeterred by prohibitions, but that the illegality of all abortion procedures will mean that many of them will come to harm, as they did in the days before the widespread legalization of abortion in the 1960s (in Britain) and 1970s (in the United States). But it seems to me that the force of this argument against abortion regulation critically depends on the belief that fetuses are not fully realized persons. This can be brought out with an imaginary example. Take a society in which ritual child sacrifice is routinely practiced by a certain group of people. In this society, those engaging in the ritual sacrifice usually do so under a certain amount of social pressure, and in the belief that a deity will punish them if they do not partake. Consequently, outlawing the practice will not extinguish it, but only lead those involved to carry it out in secret, but with the side-effect of creating a danger for the practitioners, for let us suppose that the ritual killings involve hazardous procedures which, if not performed by regulated professionals, will threaten the health and life of all those involved.

I presume most people would agree that even if outlawing the practice would not prevent it from taking place, and would almost certainly result in additional injuries to those performing it, conscionable lawmakers would ban the practice all the same and simply hope to enforce the ban as best they could. If this is indeed correct, the thought-experiment reveals that the inevitability of some non-compliance and consequent jeopardy to women’s health are not considerations strong enough to defend the legality of abortion if it amounts to unjustified homicide. This in turn shows that our independent conclusions about the moral status of the fetus are relevant even to the back-street abortion argument against abortion restrictions.

Another gap between abortion morality and appropriate regulation might arise from a principle of justified toleration of morally suboptimal conduct. Not all immoral conduct is apt for legal prohibition (most people do not, for example, wish to outlaw all lying, or infidelity). Liberal political values require that some margin of error be left for us to make morally dubious choices. Perhaps this includes morally dubious reproductive choices. Like the back-street abortion argument, however, the justified toleration argument does not go through if and when abortion is considered to be an instance of justified homicide. The law does not and cannot consign homicide to the realm of private morality. This means that the toleration argument will not hold sway for anyone who believes that the fetus is morally on a par with human children or adults.

Next, it is sensible to think that some degree of efficacy is a basic condition for acceptable legal regulation, especially for prohibitions. If that is correct, then it is relevant question whether a law which proscribes only patently immoral abortions will have much of an impact on behaviour, given the general operation of self-censure. The undesirability of ‘late’ abortion is widely recognized by women in England and Wales without the help of the law, as is illustrated by the comparatively low rate of terminations taking place after twenty-four weeks of pregnancy: in 2014, 92 per cent of terminations were carried out at under thirteen weeks, with only 2 per cent carried out at over twenty weeks, and one tenth of one per cent after twenty-four weeks. !2 The example of a woman who aborts a late pregnancy for a frivolous reason like safeguarding a holiday may be unsettling, but it is also quite farfetched; these are not abortion scenarios the law is typically needed to prevent. [3]

A relevant question here is not just whether the legal permissions tally with the moral ones, but whether restrictions are worth their cost, and one important factor in assessing this is whether the difference to reproductive behaviour they will actually make is worth the added risks they will impose on those who are willing to flout them. This is only assuming, though, pursuant to the above, that abortion, even when immoral, is not the wrong of unjustified homicide.

A further consideration might be whether regulation is able to fulfil a worthwhile expressive value, even if its effect on the abortions actually carried out is negligible. Perhaps, it could be argued, the default criminalization of abortion or the requirement that women state grounds for termination, such as is in place in the British regulatory framework, plays an important communicative role in underscoring the moral value of the fetus and the moral seriousness of the abortion decision. Indeed, regulation might well fulfil that function even where, in practice, it amounts to little more than a rubberstamp system. Part of that value, someone might suggest, lies in simply signposting the moral gravity of the abortion decision to the woman herself and encouraging her appreciation of its seriousness.

Even if this communicative function is a legitimate legislative aim, however, that expressive value will still need to be balanced against the intrusiveness and burdensomeness to women that regulation entails. This is especially true in a framework like that of the United States, in which the choice to terminate pregnancy is a protected constitutional right. Calculations such as this would also need to take account of the intrusiveness of regulation in light of its standard interpretation. In the British context, for example, the fairly liberal interpretation of ground 1(1)(a) means that a ground for abortion can usually be adduced before twenty-four weeks of pregnancy. However, the medical profession’s—and to some extent, the courts’—interpretation of other provisions in the Abortion Act has resulted in the imposition of some nonnegligible burdens on women seeking out early termination. This has been especially true of provisions pertaining to where abortions can be carried out, and the extent to which adequately trained nurses, rather than doctors, can perform simple abortion procedures.[4]

Balancing the symbolic value of the need to state statutory grounds for abortion against its burdens also requires one to take account of the fact that all reproductive decisions are by their very nature serious, regardless of the individual reasons for which a woman desires a termination. All abortions are carried out for at least the reason that the pregnant woman does not wish to become a parent, or to carry and then give up her biological child. Whatever the circumstances motivating those wishes (whether they stem from financial or relational insecurity, the wish not to interrupt one’s life plans, or the simple belief that one would not relish being a parent), responsibility for a new child is a radical enough development in anyone’s life that to become a parent against one’s will at any time is always fairly serious. Thus, there is always a reason behind abortion, and that reason is hardly ever (if ever) trivial, because the plain wish not to bring a new child into the world is not trivial. This may call into question the notion that formal regulation is ever needed to impress on women the gravity of the abortion decision.

Lastly, a gap between the legal regulation of abortion and the morality of abortion can arise from the constraints of the rule of law. The law cannot declare that there is a grey area during which personhood emerges, and leave it at that. It cannot state that abortion is more serious the later in pregnancy it occurs, but refuse to lay down specific rules. The law must offer guidance on abortion that is capable of being followed, that is clear, predictable, prospective, treats like cases alike, and so on. As we saw in the last chapter, providing practical resolution for some threshold problems is part of the purpose of the law. The rule of law’s standards thus imports considerations into the regulation of abortion that do not exist in abortion morality.

  • [1] For a detailed account of the widespread practice of illegal abortion in the United States beforeRoe v Wade see, generally, Carole E Joffe, Doctors of Conscience: The Struggle to Provide Abortion Beforeand After Roe v. Wade (Beacon Press 1995). As Joffe illustrates, it was disproportionately poor andsocially unconnected women who had to take their chances with the unsanitary and unprofessionalback-street abortionists, or ‘butchers’, whilst socially privileged women could often locate a qualifiedobstetrician-gynaecologist to perform the procedure safely and in secret.
  • [2] As well as the sheer normative force of the law, which still resonates with many, registeredobstetrician-gynaecologists have plenty to lose through disobedience, even if their patients do not.Added to this must be the reticence of some, at least, to subject themselves to unregulated abortioncare for fear of the enhanced risks. The general deterrent effect of illegality is especially potent whereit is instrumental to creating a moral stigma around a practice, which often it can be (consider thestigmatizing effect of the prohibition on various drugs, or the banning of smoking in public places).The decision to not only restrict or prohibit a practice, but to actively stigmatize it as well, is among theregulatory choices that governments can make, and a choice that can tend towards greater compliancewith prohibitions. Lastly, the relative inaccessibility and inconvenience of abortion that its illegalitywould entail is also sure to deter a large number, even if it would not inhibit the attempts of those mostdetermined to end their pregnancies.
  • [3] Department of Health, Abortion Statistics, England and Wales: 2014 (June 2015). The BritishPregnancy Advisory Service (BPAS), England and Wales’s largest provider of post-twenty-week abortions, receives around only 100 requests a year for abortion beyond the twenty-four-week threshold,which have to be turned down. As BPAS reports, the figures for abortions carried out between twentyand twenty-four weeks are already low. This suggests that women on the whole are extremely reluctantto request abortions for developed pregnancies, and that where they do so, they perceive the need toabort to be fairly urgent (see British Pregnancy Advisory Service, Abortion: A Briefing Document onWhy Access to Late Abortions Needs to be Defended’ (last accessed 15 October 2015)).
  • [4] See, for example, British Pregnancy Advisory Service v Secretary of State for Health [2011] EWHC235 (Admin).
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