2nd December 2021
The abortion issue is about one ultimate question: who gets to choose?
Is it those who are pregnant?
Or is it those who have control of a legislature or the courtrooms?
From a liberal perspective, the answer is simple.
As far as possible, those who are pregnant should have the choice to decide to terminate or not terminate their pregnancies.
This is because of the principle of autonomy.
But many do not want women to have that choice: they believe it is a choice for others to make, who do not know the woman or her circumstances.
Answering this ultimate question, however, is not enough.
For there is a further question: how should the right of someone to control their own pregnancy be enforced?
In the United States, the Supreme Court in Roe v Wade held that there was a ‘constitutional right’ to an abortion.
The problem with this is that the constitution of the United States does not expressly provide such a right.
It instead has to be read into the constitution by the courts.
And what a court can give, another court can take away.
Another problem is that the reasoning in Roe v Wade is not that compelling – even it arrives at the (morally) right conclusion.
So there is now a case before the Supreme Court where there is a very real chance that Roe v Wade will be severely limited, if not overturned.
This would be an illiberal and unfortunate outcome.
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For nearly fifty years, however, the effect of Roe v Wade has not been converted into an actual constitutional amendment, so as to put the ‘constitutional right’ beyond doubt.
And those opposed to abortion have, step by step, judicial appointment by judicial appointment, increasingly positioned themselves to overturn the decision.
It has been skilfully, deftly done – and in plain sight.
The judicial appointments under presidency of Donald Trump has made the shift irreversible for at least generation.
The only liberal way forward is not to litigate, but to legislate.
The ‘constitutional right’ of a woman to, as far as possible, decide the outcome of her own pregnancy is too important to rest on a flimsy Supreme Court decision, with poor reasoning and relying on a right not expressly set out in the constitution.
And if and when the constitution expressly sets out the right, then the decision as to who gets to decide whether to terminate a pregnancy will be, as afar as possible, back with who it should be.
The mother herself.
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The proponents of abortion restriction in the US may (and some do) argue that Roe v Wade allows much later abortion than is the norm in other countries, especially European ones. If abortion is to be allowed, is it to be restricted to some early stage of the term, and if so, what legal or philosophical principles can be used to establish that point?
This is the first time I have commented on your always excellent and stimulating blog. I am a great admirer. On this occasion, I do feel that in omitting any serious reference to religion you have turned the abortion debate into something merely about autonomy v. its opposite. In the blog, the matter reads as if abortion is only about politics. But it isn’t. The notion of killing an unborn baby by a deliberate act of will—a baby, for those who believe this, already possessed of a divine-given purpose and soul—is abhorrent, unthinkable, to some Christians (because of ignorance, I can’t comment on other faiths). This has nothing to do with gender, politics, liberalism, or autocracy but to do with God, and the spiritual preciousness of all human life. I don’t think, personally, that one should minimise the seriousness of this perspective.
Strange then how the sanctity of life seems not to extend to capital punishment and gun control in the very same States.
Yes, as a protestant it shames me a little that at least the Church of Rome is consistent on its position, opposing both capital punishment and abortion in the US.
(The religious right in the US also seems to instantly stop caring about these babies the moment they are “born” and is quite happy for them to endure poverty and neglect…)
There is no biblical authority for this view; the biblical doctrine is that life begins with the first breath; god breathes life into Adam.
You are no doubt right that religion does have a major input into some people’s views (although many of the same people may support the death penalty, so as DAG notes, the sanctity of life argument seems tenuous).
Even so, *permitting* abortion is not the same thing as forcing members of any group to have abortions.
And forcing the whole to adopt behaviours based on any set of religious beliefs seems perilously close to establishing religion and therefore running counter to the first amendment.
I don’t think anyone is minimising the seriousness of abortion, or necessarily ignoring religion. I am Jewish, though not Orthodox, and while I recognise it is desperately sad to have an abortion, I agree wholeheartedly with David Allen Green that it is “the mother herself” who must make the ultimate decision on what happens with her body – and indeed what happens to a potential (potential only) human being.
An unwanted baby is not unlikely to have an unhappy life. Adoption also does not quarantee a happy life to anyone concerned, and makes the pregnant woman a vessel for others’ desires.
You say, “merely about autonomy” and “only about politics” but autonomy is the most important thing we humans have and politics is the stuff of life.
Desperate women may seek desperate remedies and then we’re back to backstreet abortion.
It doesn’t need to be a constitution! I doubt that it was an issue that was on the minds of Madison and Hamilton in 1787, and it would be impossible to pass a constitutional amendment on the subject. It was always a stretch to say that it came under the right to privacy.
What any sensible country would do is to pass a law on the subject. Sadly, Congress seems to find it almost impossible to pass laws…
In western, liberal, mature societies the ultimate decision should rest on the woman whose choice will, in any case, be highly upsetting, traumatic, whatever some people may think.
DAG you are right, but am I correct in believing that the chance of legislating an amendment to the Constitution that would make abortion a right to be decided by the mother is vanishingly small, given the make up of the House of Representatives, but more particularly the Senate?
There may be no other choice, if Roe v Wade goes
I think it would be legislation, not constitutional amendment. The chances of legislation are poor enough, constitutional amendment no chance.
It’s hard enough passing controversial legislation in the US, given the ability of the senate to filibuster anything a sufficient minority doesn’t like. Though from time to time they talk about abolishing the filibuster. But both parties try to do things the other party hate, and the ability to stop them seems more important than being able to legislate yourself.
Constitutional amendments are another degree of difficulty. You have to get 38 states to ratify it, typically within about 7 years. Look at the history of the Equal Rights Amendment, giving equal rights to women and men. It passed the senate in 1972, but did not getting enough ratifications by the deadline, even though it was extended. Some states were still trying to ratify it as late as 2018, though by then it was pure gesture.
You phrased things in a way I hadn’t considered before.
Which makes me think of the Gordian knot that the libertarian right in the USA must cut in order to make this work for them. They believe in small Government and minimal State interference in everyones lives and life choices. And yet, in the case, of abortion they wish the State to interfere in the lives and choices of people (whose views, in general, the libertarian right disagree with).
Hence it’s considered an egregious interference for the State to demand that someone wear a mask in public. But entirely acceptable for the State to demand that a rape victim carry a child conceived out of that act.
The libertarian right don’t recognise that characterisation. They see it as no different to outlawing murder. This is why it is such a vexed issue. The two sides analyse it from such different directions they can’t even have a civilised discussion about it.
Witness also the commentator above saying it is a non-negotiable matter of religion. Yet other equally devout people reading the same religious text don’t see it that way. Each has utter certainty of their reading, and so can’t have a civilised discussion about it either.
It seems at least arguable that the living foetus’ the unborn child, has an autonomous existence at some time before birth. The fact that the time is difficult to ascertain cannot displace the principle.
That no man is an island suggest that others, not least the father, may have an interest in the birth. Surely that must be the reason why jurisdictions that allow the destruction of unborn children nevertheless protect them after some point, generally a point where viability may be presumed?
Full agreement with today’s post.
Earlier today I was listening to a clip of an American commentator regarding this question and he pointed out that a reversal/limitation of Roe/Casey would turn women into a … I think he used the phrase a ‘secondary citizen’ inasmuch that men would have full bodily autonomy while women’s would be considerably curtailed.
I smell a big pile of hypocrisy here. I also smell religion being used as a tool to exert power. But then a politician is someone who would kiss the Devil’s bottom if they thought a vote lay within.
Now what will the justices do? Will they actually go so far as to overturn Roe v Wade? I would have thought they might march the idea to the top of the hill, frighten the politicians and march the idea back down again. Because although American women may sing praise the Lord, when it comes to their daughters getting into trouble the political rubber hits the road and an abortion looks a handy thing. What they holler in front of their church is one thing, what they vote in the ballot another – if they have any sense.
I hope the politicians get a little scared of the potential backlash and discover Roe v Wade is a very convenient figleaf.
Law generally progresses but here it seems about to regress by limiting women’s choices and returning them to a situation which prevailed decades ago.
Judges could be inventive and perhaps redefine concepts such as the sharing between men and women of parental responsibility ,actual day to day custody and control, and financial responsibility for children but it sounds as if this is not on the agenda.
Not far removed from this debate is the question of sexual violence and assault . The better view is that any such legal debates will be very limited .
Also as medical science progresses we are only a generation or two away from genetically modified test tube babies which can be picked up from your local supermarket with all the unpleasantness of child birth avoided !
Judges will then find that they will have to move with the times and the science . They will not be able to stand still or go backwards in time even should they want to do so.
It does seem to me very strange that the USA legalized abortion through the courts rather than through legislation. Every other democratic country I can think made the change by elected politicians voting in a legislature. This seems a much better way to go about things.
Don’t you first have to answer the question “what is the status of that which is aborted?”?
Is it:
(1) a piece of tissue, like the appendix, in which case no moral issue arises from a termination and abortion would naturally be the woman’s right to choose; or
(2) in some sense a living being, in which case there need to be good grounds for killing it and legislation should set out what those good grounds are; or
(3) a third category, of something that is not a living being but that could, if the pregnancy went further, become a living being. In that case one would need to consider what, if any, special protections should apply to any rights that status gives.
But I do not think that it just works to say that the mother should be free to choose on the principles of autonomy without first determining the status of what she would be exercising her autonomy on.
As I understand the UK law, the official view changes part way through the pregnancy.
In the later stages the foetus is treated as something like a living person, and therefore weighty reasons, such as danger to the mother, are needed before an abortion is lawful.
In the earlier stages the foetus is treated either as a bit of tissue or as a 3rd category but with no special rights attached or at least not the right to become a living being by the continuation of the pregnancy. Then the mother’s wishes come first (although the law reaches that position by a roundabout route).
That seems to be me to be a reasonable balance.
Don’t you first have to answer the question “what is the status of that which is aborted?”?
No.
The first question is who is the best placed to make decisions about the body of the mother – the mother herself, or somebody else whose decision she has to comply with?
There are other questions, of course – but that is the first one.
But depending on your view of the status of that which is aborted the woman’s decision may or may not be only about her body.
If I use my body to kill an adult do I get off on the ground that I am best placed to make decisions about my body?
Compulsory vaccination also ruled out by this argument?
Drunken driving permitted because I am best placed to make decisions about the amount of alcohol in my body?
And does that mean that you would advocate abortion on demand just minutes before the baby is born, while still in the mother’s body?
I suggest that if you start with “freedom is freedom to do what you like so long as you do not harm others” you have first to decide whether some other is being harmed; that in turn means deciding which “others” are entitled to protection from harm.
That’s stretching the point. Aborting an unborn foetus – which is not yet an “other” – within legal time limits, which each country has so far as I understand, is definitely not anything like murdering an adult or drunken driving. Besides, a woman is not just deciding about her body but about the whole future of herself, an unwanted baby, family, friends, and maybe also the planet. The current American decision is about savagely shortening the time limit and also involves pregnancy arising from incest and/or rape. Compulsory vaccination strikes me as a different argument.
By boiling it down to “one ultimate question: who gets to choose?”
and answering:
“As far as possible, those who are pregnant should have the choice to decide to terminate or not terminate their pregnancies.”
I imagine that you are not advocating for abortion to always be permitted right up until the moment of birth.
While I completely agree that once you decide as a society when abortion should be allowed, then it must be the person who is pregnant’s choice.
However, by presenting only that it should be their choice, it allows people who are opposed to abortion entirely, to misrepresent the position and probably persuade more people.
There is a purpose to the ‘As far as possible’ in the phrase of mine you quote.
That was my assumption, but I think those words are not sufficient on their own.
Unless some of the limits on what is possible are spelled out, it is all to easy for people on the other side of the argument to misrepresent things.
Perhaps not all, but it seems a great many of the people who are against abortion are all too willing to mislead others to win their backing.