Pro-life and Pro-choice Abortion: The Rights of The Foetus Vs The Rights of The Woman

Introduction

According to natural law theorists such as John Finnis, morality and legality are not only closely intertwined but interdependent. Legal positivists such as Jeremy Bentham would categorically disagree, arguing that morality only has a coincidental impact on the legality of legislation. This in mind, approaching abortion laws presents a conflict between morality and legality, creating an inherently emotive subject in which disagreements are expected, and ultimately may not be resolved. Theories of rights have long been a discussion within jurisprudence, with the topic of abortion weighing the rights of the foetus against the rights of the woman.

This essay will firstly address the development of statutes and case law in relation to the development of women's rights and societal changes. Secondly it will attempt to reconcile some problems caused by abortion law such as the consideration of pro-life arguments to the state of the foetus having legal rights. Thirdly it will attempt to discuss the topic of when an abortion is considered immoral and how that transcends into law. Finally, it will conclude and attempt to address why cultural influences will be everchanging and thus the law.

Abortion or termination of pregnancy for the purpose of this essay will be defined as the act which a woman performs voluntarily or allows another person to terminate her pregnancy. Abortion law in the context of this essay will be the legal status which is appropriate for this act.

Abortion Laws and Regulations

Religious influence on UK law derives from the control of the old Ecclesiastical Courts which regulated abortion until the reformation. Until the Offences Against the Person Act 1828 there was no codification of abortion law, however it was considered a criminal offence punishable by death in some cases. The act was adapted and modified in 1837 and 1861, however the main concept remained the same. This is not surprising as the rights of women were extremely limited during the Victorian era with the sole role of a woman in society being a mother. Thus, the act of terminating a pregnancy was viewed as murderous and criminal. This does not mean that abortions were not carried out frequently and dangerously. As stated by Patricia Knight, 'it is always the case that when abortion is illegal, it is driven underground'. Abortion in the Victorian era was regarded in the same way as infanticide, which by today's standard is absurd.

The criminality of abortion was affirmed in the Infant Life (Preservation) Act 1929, criminalising the destruction of a child 'capble of being born alive'. In 1936 the pro-choice group 'Abortion Law Reform Association was formed, arguing that a women should have her own autonomy over the decisions regarding her body. Perhaps this was caused by the momentum created by the Suffragettes, which empowered women to consider other rights they were deprived from, apart from the right to vote. 1938 was the monumental case of R v Bourne which allowed further considerations to be taken, in this case the girl who had the abortion had been raped. Special circumstances including the health and well-being of the mother were hereby defined as reasonings for abortion to be legal, the start of the paradigm shift towards the abortion laws we have today.

In 1967 the Abortion Act was introduced by David Steel who sought to clarify the law. It allowed for legal abortion on numerous grounds with the added protection of free treatment through the NHS. However, the abortion act was limited in its freedom, defining that an abortion could not be carried out if the child was 'capable of being born alive'. A consequence of the act not defining the time limit of an abortion created room for common law interpretation through the case of C v S in 1987. This case confirmed that at the time between 19 and 22 weeks a foetus was not capable of being born alive.

In R v British Broadcasting Corporation, ex parte ProLife Alliance, Lord Justice Laws said: 'There is some evidence that many doctors maintain that the continuance of a pregnancy is always more dangerous to the physical welfare of a woman than having an abortion, a state of affairs which is said to allow a situation of de facto abortion on demand to prevail.' This emphasises the change in opinion not due to the liberation of a woman's freedom to choose but the medical view that pregnancy must be safe for the woman and not for the child. Thus, the woman's safety, both mentally and physically is paramount.

Pro-choice and Pro-life arguments of abortion

Consideration must be given to the pro-choice and pro-life arguments of abortion. Pro-life supporters argue that the foetus must be legally recognised as a person and thus not a part of the woman's body. This presents a unique conflict between the right of the woman to control her own body and the foetus' right to life. According to law a foetus is not considered a legal entity as defined by Section 23 of the OAPA 1861. An important consideration here is perhaps the woman must not only consent to the intercourse which conceived the child but also the physical and emotional toil of carrying said child.

The pro-life side of the conundrum often use the slogan of 'abortion is murder'. Analysing this slogan in both moral and legal terms determines that it is inaccurate. Murder in moral discourse is unjustified killing whereas in law there must be an actus reus and mens rea to establish whether the killing was intentional or not. However, this is the issue at the heart of the debate surrounding abortion. People who hold that in certain circumstances abortion may be moral or should be legal are saying it is justified whereas others believe the opposite. Abortion cannot amount to murder as the foetus is incapable of living without the mother's support, reliant on her health for its own. If the pregnancy was to damage the woman's mental or physical health then the foetus' health might be jeopardised.

It is a well-known argument within legal spheres that rights are assigned with duties and responsibilities therefore it is an interesting consideration that a foetus may not have the privilege of rights as it cannot physically perform duties which are bound to those rights. Some may argue that born children cannot perform duties but have the privilege of exercising rights, however those children are bound to adults who exercise parental responsibility over them. This weakens the arguments of pro-life supporters as it confirms that until a child is 18 a parent or guardian is held accountable for their actions and thus if a woman cannot consent to that burden it is within her own right to exercise her autonomy over her own body to terminate the pregnancy.

The right to life is somewhat subjective to the reading individuals choose to give it. Pro-life supporters would argue that the foetus' right to life means that there is an obligation on the woman not to harm that life. However, the interpretation of the right from the view of a pro-choice supporter would emphasise that the woman's right to determine the path of her own life is the choice of her own and no one else's. Of course, this argument has no reconciliation as both parties believe the opposite to be morally correct.

Thompson uses an analogy of a violinist whose life depends on the life of another for 9 months to argue that although the antiabortionist may argue that a foetus is a life, it cannot be sustained by itself. Using this analogy one can grant the antiabortionist's claim that a foetus is a human being and still hold that the woman has the right to refuse to be sustenance towards the foetus and therefore obtain an abortion if she chooses. However, this analogy itself is flawed due to the difference between the foetus' right to life and holding someone else responsible or obliged to sustain another's life. Furthermore, there is the argument that conception is the formation of the foetus' life and therefore it can be considered as the woman, by her own actions, assuming responsibility for the foetus. Consequentially it is also then possible to argue that the woman is able to assume responsibility for the abortion.

Simplified, the problem of reconciliation between pro-life and pro-choice supporters is whether it is more immoral to abort an unwanted pregnancy or force a woman to carry an unwanted child. It is universally agreed that murder is wrong and that controlling a woman's body is also wrong, therefore the basis of this debate is an issue of personhood. If a person has more moral value than a foetus then the closer the foetus becomes to a person, the more moral value it is deemed to have. This introduces the next problem with abortion morals and laws, the length of which a termination of pregnancy is deemed morally acceptable and thus legal.

Law and Morality

Generally, within Europe most countries have a 12 week timescale (beyond that for medical reasons), however the UK has a threshold of 24 weeks. Perhaps the morality of terminating a pregnancy past the 12 week timescale becomes questionable due to the development of a heartbeat within the foetus and therefore its development towards personhood. This is a clear example of how law and morality are closely intertwined. That which is viewed as moral may change over time which results in the change in law.

Contrast to the more reformed European legislation, American courts have a more conservative view of abortion law, perhaps due to the stronger ties towards religion which are seen there. In the monumental case of Roe v Wade it was held that the State had no right to intervene in the first 3 months of pregnancy but might do so in months 4-7 if it was to safeguard the mother's health and from month 7 the State could intervene to protect the life of the Foetus unless it would jeopardise the woman's health. Roe v Wade ruled that the Constitution of the United States protects a pregnant woman's liberty to choose to have an abortion without excessive government restriction.

The UK does not have a codified constitution but a series of constitutional statutes which have higher legal authority to regular legislation. Thus, the parallel between rights enjoyed by American citizens from the constitution and rights exercised by UK citizens under the Human Rights Act are evident. Articles 5 and 8 are notable for the individual's rights of ownership of their own body and thus the decisions surrounding their body. The Abortion Act 1967 affirms the right of a woman in the UK to have an abortion up to 24 weeks of her pregnancy.

The argument for allowing 24 weeks before termination is that there must be sufficient time for the woman to make her decision. Furthermore, the woman must establish her own safety and determine any threat to her own life because of terminating a pregnancy. As the NHS is underfunded and cuts from austerity continues, abortions are not as easily accessible as some may think and can take a few weeks from initial consultation to the termination itself, even if the woman wanted to terminate the pregnancy earlier, it sometimes is not possible.

In its recent inquiry into 'Scientific Developments Relating to the Abortion Act 1967', the UK Parliamentary Science and Technology Committee (STC) found that that while survival rates for the foetus at 24 weeks and over have improved, viability has not improved below that gestational point. The STC concluded that there is no scientific basis, on the grounds of viability, to reduce the upper time limit on abortion. Therefore, it is argued that the child could not be born alive at this point, therefore the termination is morally justified. The STC's review of the evidence also found that while foetuses have physiological reactions to stimuli, this does not indicate that pain is consciously felt, especially below 24 weeks. It further concluded that these factors may be relevant to clinical practice but do not appear to be relevant to the question of abortion law. This in mind, the argument that 24 weeks is too long before having an abortion cannot be determined on the physical pain felt by the foetus as there is scientific evidence to prove there is none.

Furthermore, the British Medical Association has called upon MPs to vote against any attempt to reduce the 24-week time limit, on the grounds that there is no 'scientific justification' for doing so. Because the law requires two doctors to permit any woman to have an abortion, the medical profession is an important influence in both abortion policy and practice: that it sees no grounds for reducing the time limit for abortion is of scientific and factual basis, therefore it can be assumed it has no cultural or political bias in its opinion. Abortion is a medical procedure therefore the advice of medical professionals should be appreciated.

Most abortions are conducted in the first 12 weeks where the foetus is attached by the placenta and umbilical cord. There is an argument that abortions conducted at this point are morally acceptable as they are definitively attached to the woman and her right to exercise autonomy over her body extends to that which is attached to her body. To the contrary of what many pro-life supporters may believe, adoption is not an alternative to abortion because it remains the woman's choice whether or not to give her child up for adoption. Statistics show that very few women who give birth choose to give up their babies.

The rights of the biological father are limited in this context as the onus of carrying the child is not on them. Pregnancy is not limited to 9 months and can have everlasting trauma on the woman carrying the child and thus the decision of whether the pregnancy should be terminated or not is the mothers. The father has no right to veto responsibility as displayed by the decision in Paton v Trustees of British Pregnancy Advisory Service 1979 with the reason being the woman is the one who carries all risk. There is also no requirement to notify the father of the woman's decision which some would argue to be sexist. However, there is no one better to understand the relationship between the mother and the father than the mother herself and it would be deemed draconian if the court had jurisdiction in this manner, respecting Article 8 of the ECHR.

Conclusion

In conclusion, the relationship between law and morality is reactive and flexible, especially when discussing the termination of pregnancy. Specific details, such as the length of pregnancy which is deemed moral for a termination to be legal, have been developed through common law over the last 200 years. With the rise of women's rights movements globally, the conversation around abortion has changed significantly to parallel this rise with more emphasis on autonomy rather than paternalism. The role of the court is significant in 'special case'abortions as it allows flexibility to the law from more rigid statutes and case by case answers to questions regarding the safety of the woman. With Argentina legalising abortion in 2021, the rights of women are being recognised internationally although some countries are far behind in the development of these laws. Morality may be subjective but democratic society has progressed to a point of freedom of choice. If an individual is against abortion, they themselves are not forced to have one. However, it is a personal and private issue for a woman to decide to have an abortion and it should not be subject of prejudice and judgement from others.