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Abortion Introduction Learning Objectives: Understanding the issues of abortion legitimacy Learning Goals:
* Describe the moral status of a foetus
* Explain whether a pregnant woman's autonomy should include the right to terminate an unwanted pregnancy
* Outline the legal position re abortion in the UK
* Consider abortions within the context of eugenic selection, forced caesarians and technological developments
The Ethics of Abortion In what circumstances, if any, is it legitimate for a woman to terminate unwanted pregnancy?
Towards the restrictive end, it might be argued that abortion is legitimate where the woman's life is in danger, or when she is pregnant as a result of rape. At the permissive end, it might be contended that abortion should be available upon request, at least during the first few months of pregnancy. Within the context of abortion, there are three different moral perspectives worth identifying when justifying one's moral views re abortion:
1. an emphasis on the moral status of the foetus, and in particular upon its personhood, or potential personhood;
2. an emphasis upon the physical invasiveness of pregnancy, and upon the degree of self
sacrifice which would be forced upon the woman who is compelled to continue an unwanted pregnancy;
3. a compromise position in which abortion is permitted, but only in certain restricted circumstances which are designed to offer the foetus some protection. Moral status of the foetus John Finnis would argue that conception is the moment that a new individual comes into being, and that this should be the point at which it should acquire all the rights of personhood. Interestingly, he notes that by saying this is the beginning of a person's life is not to work backwards from maturity, but rather to say this is the most clearcut beginning. This sort of argument has been disputed by others, such as Warren, who contend that while the foetus may be human, it is not yet a person, and so its interests cannot take priority over the rights of an actual person. Relevantly, to Warren, the concept of personhood includes at least one of the following: consciousness and the capacity to feel pain, reasoning, selfmotivated activity, the capacity to communicate and the presence of self concepts and self awareness. More fundamentally, Warren argues that the rights of a potential person never outweigh the rights of an actual person.
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Warren's criteria for personhood are themselves controversial. Abbott has pointed out that this test for personhood would exclude not only foetuses but some seriously disabled children/adults (e.g. those who are comatose or paraplegic). In legal terms, a person's rights exist after birth, but not before. However, Gillon argues that it is not evident that a new born baby is a morally different entity to a foetus immediately before birth, claiming that such a distinction boils down to biological geography if a baby lies north of the vaginal introitus, then it does not possess a right to life, whereas if it lies south, it does. Don Marquis takes a different approach and argues that abortion is wrong because it is relevantly similar to killing an adult human being. According to Marquis, what makes killing adult human beings wrong is that it deprives them of everything they might value in future. Similarly, abortion denies that from the foetus. Of course, the problem here is that using contraception may deny a potential person their potential future, but this does not necessarily mean that it is the wrong thing to do. Another problem is that, as raised by Brown, giving a foetus the right to live essentially gives it a right to deprive another of their autonomy. It would not make sense to say that in the context of organ transplants (e.g. I need a new heart, therefore I have a right to yours), so why does it make sense to say that in the context of pregnancy. The pregnant woman's right to selfdetermination As Olivia explains, to be pregnant is to be inhabited. It is to be occupied. It is to be in a state of physical intimacy of a particularly thorough nature. Of course, the foetus is not an intruder. It is occupying the woman's body through no fault of its own. However, the claim is generally made that it has no right to force the woman to continue this relationship of unparalleled intimacy without her consent. Some may argue that if a woman consents to sexual intercourse, they consent to pregnancy by extension. However, it does not follow that a person who runs a risk consents to the manifestation of that risk. The woman's rights in this context does not depend on proving that the foetus is not a person. Rather, as Jarvis argued, even if the foetus is a person, pregnant woman might have the right to defend themselves from the physical invasion of unwanted pregnancy. Jarvis illustrates the apparent absurdity of the argument that the right to life is stronger than a mother's right to autonomy by postulating the example where you wake up with another human attached to you for life support for a period of 9 months without your consent. There also appears to be the view that while motherhood is natural, rejecting motherhood is unnatural and selfish. Siegel points out that attitudes about abortion do heavily rest on normative judgements about a woman's sexual conduct, and their role as 'childrearers'. Contrast this however, with the argument that because motherhood is intrinsically good, a woman who rejects it without a compelling or virtuous reason, is acting wrongly. A compromise position?
This position, which acknowledges the right of the woman to terminate, as well as the right of the foetus to life, is consistent with most countries' regulations: abortion is permitted within parameters. In this regard, Dworkin argues that people share a deep belief in the sanctity of human life, and therefore regard abortion as a serious matter, but that they also do not believe the foetus has exactly the same rights as the mother, otherwise it wouldn't be possible to justify abortion if the woman's life is in danger, or if she is pregnant as a result of rape.
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The law regarding abortions Criminal Law Originally regulated by the common law, which drew a distinction between foetal destruction before and after quickening (which is about 1618 weeks into pregnancy), abortion is now regulated by statute. The Offences Against the Person Act 1861 continues to apply today. The maximum sentence for a woman who intentionally procures an abortion is life imprisonment, and any assisters can get a maximum of 5 years. This is subject to statutory defences for abortion. Relevantly, the provisions provide: "(58) Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life. (59) Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanour, and being convicted thereof shall be liable to be kept in penal servitude." In the context of section 58, the word 'unlawful' has been interpreted to allow abortion where it was necessary in instances of lifesaving surgery, or to prevent the mother from becoming a physical or mental wreck. Here, in R v Bourne, the abortion carried out on a 14yr old girl was not unlawful because of the violent rape which led her to being pregnant, and the potential effects pregnancy might have on the girl physically and mentally. See also, the Infant Life Preservation Act 1929: "(1) Subject as hereinafter in this subsection provided, any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit, of child destruction, and shall be liable on conviction thereof on indictment to penal servitude for life: Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother. (2) For the purposes of this Act, evidence that a woman had at any material time been pregnant for a period of twentyeight weeks or more shall be prima facie proof that she was at that time pregnant of a child capable of being born alive." The Abortion Act 1967 Background The Act was not enacted for the purpose of providing woman with the right to terminate their pregnancies. Rather, the principal factor was cancer about high mortality rates resulting from
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illegal abortions, and the need to get rid of backstreet unsanitary abortions. Abortion then was not legalised to enhance the woman's autonomy, but to enable doctors to lawfully assist desperate woman to end their pregnancies. Against this backdrop, it is not surprising the Act does not allow for abortion upon request. Abortion is still proscribed by the Offences Agains the Person Act 1861, but the Abortion Act 1967 provides that abortion will be lawful where the criteria laid out in the Act are satisfied. Grounds for abortion Section 1 of the Act provides: "(1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith---
(a)that the pregnancy has not exceeded its twentyfourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or (b)that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or (c)that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or (d)that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped. (2) In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) or (b) of subsection (1) of this section, account may be taken of the pregnant woman's actual or reasonably foreseeable environment." Some introductory remarks should be made here: 1
The words of section 1 seem to only protect abortions where they are terminated. Does this mean that unsuccessful terminations are outside the scope of the Act? In Royal College of Nursing v Department of Health, the majority held it would be absurd and not the intention of parliament that anyone taking part in an unsuccessful termination would be unable to rely on the defences contained in the Abortion Act.
4. The Act does not entitle a woman to decide to terminate an unwanted pregnancy, even if her circumstances fit within the statutory grounds. Instead, what matters are a doctor's opinions (and not the actual fact re whether the woman does fall within those statutory grounds). Doctors performing the abortion will therefore not gain protection if they failed to act in good faith. Here, based on the decision in R v Smith, the 'good faith' requirements appears synonymous with the Bolam test.
Further evidence the Act protects medical discretion as opposed to autonomy is the inherent vagueness of the statutory grounds. A definite list of circumstances might have given the appearance of a right to abortion, which would then erode medical discretion.
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