Roe v Wade - some thoughts on law and morality

In the wake of the overturning of Roe v Wade in the United States, the debate on abortion and its legal status has been reactivated everywhere, including in the UK. Our Abortion Act of 1967, whilst it is on the statue books, making it a degree more secure than the case law that underpinned abortion rights in the US, yet has similarly fragile foundations. It is framed as an exception to the act of 1861 that banned abortions and treated their perpetrators as murderers. Thus abortion is allowed under the 1967 act in exceptional circumstances, for a limited time (currently set at 24 weeks in spite of several attempts to reduce it to 22 or even 18 weeks) and only with the permission of two doctors. Outside this permissive position, it is still illegal. This is not understood by many who see abortion rights in the UK as unassailable, and there have already been comments made in Parliament that indicate some would like to turn the clock back on this under the influence of the Roe v Wade overturning. The issue becomes particularly acute in the case of medical as opposed to surgical abortions, which are becoming more common, and is already muddy as a result of over-the-counter availability of the morning-after pill.

I am against making it more difficult to obtain an abortion (though sympathetic to the idea of reducing the number of weeks at which it becomes illegal to do so, on the grounds of viability, which medical science continues to make earlier and earlier through advances in intensive care for very premature infants). But at the same time I have serious moral problems with viewing it as simply an aspect of reproductive health, because I find it impossible to argue that life does not begin at conception, or at least shortly afterwards when the fertilised egg implants. But that life, however real and separate in a moral sense, is not physically viable on its own. Until the child is born, it is biologically under the care of the mother and the mother alone – medical assistance may be given to her to enable pregnancy to continue and flourish, and family and friends may play their part, but the woman’s body cares for the infant alone and there is much behind the argument that she and she alone should be accountable for its well-being – a heavy responsibility, especially where the pregnancy is unwanted or otherwise problematic, but not one that can be taken over by the state.

There is also the question of how much one should legislate on moral issues. We all would, I think, agree that murder should be illegal and subject to the most severe penalties. If abortion is seen as murder, as it is by some, then it is understandable that it should be abhorrent. However, we do not legislate on all moral issues. Adultery, for example, is forbidden by the Ten Commandments (the moral law cited by many Christians in discussing right and wrong), and is frowned on by most people – even ‘cheating’ in a non-marital relationship is condemned on social media and among general society. Yet adultery is not illegal – and would we want it to be? Many acts that society disapproves of and are subject to much criticism if celebrities are known to have done them are not illegal, and there would be little support if someone tried to make them a crime. Some acts of wrongdoing, however, such as cruelty to animals and children, are quite rightly subjects of legislation, but this is always to prevent harm to other sentient creatures, not because these acts are morally wrong per se (though often they are).

This means, I think, that legislation on abortion should focus on harm done, not on moral outrage or emotive posturing. And harm done is a very complex question – it affects not only the immediate harm done in loss of the life of the foetus in a termination, but also the mental health of the mother, which may be damaged by a decision either for or against termination, depending on the circumstances; not to mention the uncertainty of a good life for a child that is unwanted by its parents, since our care and adoption systems leave much to be desired, and the child born in such circumstances may be condemned to suffering and unhappiness. If this wider definition of harm done is considered, the issue is not clear-cut. Those who oppose abortion need to address urgently the outcomes for mother and child where the mother’s circumstances preclude her caring for the child properly; and those who support her right to choose should be more interested in making her choices wider, in enabling her to keep the child if that is what she wishes – many terminations arise because mothers are struggling financially or have to consider the welfare of other children already in her care, and this is a terrible choice to have to make. Teenage girls deserted by their partners at the very thought of fatherhood are particularly vulnerable to this absence of true choice, not to mention the pressure they often come under from partners and sometimes parents to terminate an unplanned pregnancy, and pro-choice campaigners should beware assuming that a termination is the obvious way forward for any woman faced with an unplanned pregnancy.

For both sides abortion is a deeply emotive issue, as it has been for more than fifty years – pro-choice campaigners focusing on the woman’s right to choose what happens to her body, pro-life campaigners focusing on the rights of the unborn child, who has no voice of their own. As long as the issue is debated emotively rather than objectively, passions will continue to run high and polarise opinion. But the issue will not be resolved this way, with knee-jerk reactions and activism. It must be debated in a reasoned rather than an emotional way, taking into account the rights and needs of all those involved (not forgetting fathers who do not wish a pregnancy to be terminated and who are willing to be involved and to support mother and child). There may be no easy answers, either in general moral decisions or in specific individual ones, but they will be more likely to be found in listening and discussing than in taking up dogmatic positions and shouting at each other across the divide. Most importantly, legislation should be based very carefully on proper legal grounds, not on morality, for law based on ill-considered moral judgements is seldom good law, and does not always have good outcomes.