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Abortion and the Right to Privacy The Case for Legalizing Abortion

Legalizing abortion does not mean that all pregnant women should get one. Rather, it is about the right to privacy, freedom of choice and the preservation of female autonomy.

There are about forty-four million abortions performed globally each year, and slightly under half of these are performed unsafely. The controversies surrounding abortion have always centred on the moral permissibility of the act and the justification of laws permitting or restricting abortion.

These debates are often spearheaded by two groups: ‘pro-life’ groups, who favour legal restrictions on abortion and ‘pro-choice’ groups, who oppose such restrictions. While pro-life groups argue that a foetus is a being with a right to life, making abortion morally the same as murder; pro-choice groups argue that women have certain reproductive rights which includes the choice not to carry a pregnancy to full term.

When Does Life Begin?

Although the question of abortion may include other motivations, at its core, it is about when life starts. If we can determine (without error) the moment a foetus becomes a living being, then an abortion prior to that moment would be deemed irreprehensible. While pro-life groups insist that life begins at conception, pro-choice advocates argue that life begins either when the foetus becomes viable or at birth.

In the German case of BundesverFassungsgericht, the Constitutional Court held unconstitutional a provision which permitted abortion within the first twelve weeks of conception:

‘The life developing in the mother’s womb, is…an independent legal interest protected by the constitution which is the central value of every legal order and the state duty to protect, and not only forbids direct intervention with the life of the child, but also requires the state to protect it. This nascent life enjoys protection in principle with priority of protection over the right of the mother to self-determination throughout the pregnancy and may not be subject to derogation at a certain time. This is because … life in the developmental stage begun, according to established biological findings, on the fourteenth day after conception. The process thus begun is continuous and does not end at birth.’

Given the question of when life begins, I am drawn to the question of when life ends. Usually, death (though not brain death) is determined by the end of a heartbeat, respiration, and blood circulation. If these are the criteria for determining death, it is logical to look at the inverse in determining life. When my heart stops, and my blood stops circulating, it is said that I am dead. Thus, when my heart starts beating and my blood starts to circulate, I am living.

It is assumed that a baby’s heart first beats six weeks after conception. At six weeks, a baby meets the inverse of the criteria that the medical community uses to determine death. Pro-choice groups argue that the heartbeat is aided, and since it is not independent of the mother, one cannot say the foetus is alive thus, at six weeks this is still only a women’s rights issue instead of a life issue. However, this logic is flawed. The idea that a heart must beat independently to determine life means anyone on any form of life support is not alive or that a person with an implanted pacemaker is not alive, as their heart cannot beat independently without it. It is also important to note that at six weeks, most women have no idea that they are pregnant and cannot make a decision to abort at a prior date.

Clearly, we cannot say precisely when human life begins. Even medical experts cannot reach an agreement on when the foetus starts breathing. The pro-life ‘at conception’ argument stems predominantly from religious beliefs. For example, Christians can quickly make recourse to the bible book of Exodus 21: 22-24 which states as follows:

‘If men should struggle with each other and they hurt a pregnant woman in the process and she gives birth prematurely, but no fatality results, the offender must pay the damages imposed on him by the husband of the woman and he must pay it through the judges. But if a fatality does occur, then you must give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot…’

The ‘harm’ indicated in these verses may refer to the child and not to the mother. In the first circumstance, the injured mother gives birth prematurely and no ‘harm’ comes to the child. In other words, the premature child lives. Thus, a fine is levied for causing the premature birth and the potential danger involved. In the second situation, there is a premature birth and the ‘harm’ that follows is the death of the child. Here the penalty is life for life.

Therefore, it can be argued that the Bible does not hold that the life of the unborn is less valuable than the life of an adult. In his book Medical Ethics, John M. Frame says, ‘there is nothing in the Scriptures that even remotely suggests that the unborn child is anything less than a human person from the moment of conception’ emphasizing further that conception is meant to imply the time of fertilization. However, religious beliefs should not be used to create laws, because it is not within the rights of the state to use religion to legislate.

The pro-choice ‘at viability’ or ‘at birth’ arguments stem from a diverse background of feminist literature, that recognize the necessity of a woman’s right to affordable reproductive health care services but fail to successfully state when life starts other than at conception.

The ‘Personhood’ Debate

Perhaps, by focusing on when life begins, both groups are starting from the wrong position. What if the focus of the debate is moved to when the foetus can be said to be entitled to the benefit of constitutional protection? That is to say when personhood starts in relation to constitutional protected rights.

Personhood continues to be a topic of international debate and its definition can be controversial especially concerning moral and ethical issues like abortion and foetal rights. The process through which personhood can be recognized legally differs in various legal systems, which demonstrates that the notions of personhood are not universal.

A person is recognized by law not because they are human, but because rights and duties are ascribed to them. According to some theories, once human beings are born, personhood is considered automatic. Some other theories consider adult legal capacity to be a criterion for personhood in certain contexts. For instance, in Canada ‘persons’ are those individuals accorded legal capacity to act and recognition to exercise the right of self-determination, and recognized to have decision-making capacity, reflective capacity and personal identity. It is perhaps in this vein that Section 223 of the Criminal Code of Canada regards a foetus as a human being only when it has completely proceeded in a living state from the body of its mother whether or not it has completely breathed, it has an independent circulation, or the navel string is severed.

However, some other jurisdictions consider conception as the criteria for personhood. For example, the Nigerian Criminal Code makes it a felony to administer on a woman any poison with the intent to commit an abortion. A woman is not allowed to administer poison to herself in order to induce an abortion, and a person should not knowingly supply her any substances intended to be used to induce an abortion. The only exception being if the mother’s life is at risk. In Iran, anyone who brings about a miscarriage must pay a monetary fine which varies depending on the stage of development and/or sex of the foetus, in compensation. The Hungarian Constitution, enacted in 2011, states that human life will be protected from the moment of conception.

Most countries that have laws criminalizing abortions (e.g. Nigeria) permit the mother to have an abortion at any time if it is shown that the pregnancy creates a potential health risk to the mother. Ironically, this may prove that the mother’s existing right to life is more important than the potential life of the foetus. Does this not mean that, in the personhood debate, the woman is considered more of a person than the foetus and as such is ascribed more constitutional rights and protection?

Abortion and the Right to Privacy

Legislating on abortion stirs a lot of emotions from the groups involved. However, laws are not built purely on emotion. When advocating for abortion rights, I place emphasis on the Right to Privacy.

The Right to Privacy is a fundamental human right and an element of various legal traditions which may restrain both government and private party actions that threaten the privacy of individuals. In recent years, there have been attempts to precisely define the ‘right to privacy’. While Judge Blackburn in the United States case of Bowers v. Hardwick (1986) defines it as ‘the most comprehensive right most valued by civilized man, the right to be left alone’. In his article, ‘Privacy and Liberal Legal Culture’, philosophy professor, Dr Russell Hittinger, explains that the right to privacy has come to include a cluster of important human activities such as bodily integrity, marriage, procreation, consensual sexual intercourse, self-defining acts, and lifestyle choices.

The right to privacy has been recognized and protected by international laws and treaties. For example, Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms states that everyone has the right to respect for his private and family life, his home, and his correspondence, and there shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society for the prevention of disorder or crime. Article 12 of the Universal Declaration of Human Rights states that no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Privacy encompasses at least two different but related aspects. First, the right of individuals to determine what information about them is revealed to others and secondly, the idea of autonomy, which is the freedom of individuals to subject themselves to certain experiences. The right to privacy is our right to keep a domain around us, which includes all those things that are part of us such as our body, home, property, thoughts, feelings, secrets, and identity. In liberal democratic systems, privacy creates a space separate from political life and allows personal autonomy while ensuring democratic freedoms of association and expression.

The idea that abortion relates to issues of privacy which must be weighed against the foetus’ right to life gained prominence following the decision in the U.S Supreme Court case of Roe v. Wade (1973). In that case, the court accepted that the right of personal privacy includes a woman’s right to determine issues of procreation and abortion. A 7-to-2 majority in the Court deemed abortion a fundamental right under the U.S Constitution, thereby subjecting all laws restricting it to the standard of strict scrutiny. The Court asserted that the right of privacy is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. Although the Court ruled the right being preserved in the case was the physician’s right to practice medicine freely absent a compelling state interest, it explicitly rejected a foetal ‘right to life’ argument.

Even though the Roe v. Wade case was a monumental step forward in protecting women’s choice, there was still a legal gap because the Court held that by the third trimester when the baby is viable, the state’s interest in promoting potential human life overrides the mother’s right to abort, except when it is medically necessary to preserve the life of the mother. This condition fails to recognize that abortions after the third trimester remain necessary for some women. This gap was fixed by later judicial decisions like Planned Parenthood v. Casey (1992) and Whole Woman’s Health v. Hellerstedt (2016) which sought to reduce some of the stringent conditions set in the Roe case.

In response to the Roe case, most states in the US, including Pennsylvania, Alabama, Arizona, Colorado, Florida, Oklahoma, and Georgia amongst others enacted laws regulating and ensuring safe abortions, such as parental notification laws, spousal mutual consent laws, laws requiring abortions to be performed in hospitals but not clinics, laws requiring waiting periods before an abortion, and laws mandating women to read certain types of literature and watch a foetal ultrasound before undergoing an abortion. However, there have also been numerous attempts to reverse the decision.

In 2011, the state of Mississippi introduced a ballot measure that redefined how the state viewed abortion. The personhood amendment defined personhood as ‘every human being from the moment of fertilization, cloning or the functional equivalent thereof’. If it had successfully passed, it would have been illegal to get an abortion in the state. Recently, legislators in Alabama sought to pass a new law which bans all abortion from the time a ‘woman is known to be pregnant’ with no exceptions. Early this year, five states—Georgia, Ohio, Kentucky, Mississippi and Louisiana—also passed bills which prohibit abortion after about six weeks; before many people even realize that they are pregnant.

Although the Roe case elicited mixed reactions, the merits cannot be overlooked. According to an article published in The Journal of the American Medical Association, the risk of death due to legal abortion in the United States of America has fallen considerably since legalization in 1973, due to increased physician skills, improved medical technology, and earlier termination of pregnancy.

Why Legalize Abortions?

When women are bound to carry and bear children, they are subjected to an ‘involuntary servitude’. Criminalizing abortion does not stop abortions or reduce abortions; rather these anti-abortion laws make them dangerous. When carried out with the assistance of a trained health-care provider in sanitary conditions, abortions are one of the safest medical procedures available. When abortions are restricted or criminalized, people are forced to seek unsafe ways to end pregnancies.

In 2011, the Guttmacher Institute published a report stating facts on induced abortion. The global and regional estimates of induced abortions between 1995 and 2003 show that legal restrictions on abortion do not affect its occurrence. To illustrate this, in 2003 the abortion rate in countries in Africa (where abortion is illegal in most countries), was 29 out of 1000 women aged 15 to 44. Whereas in Europe, where abortion is generally permitted, the abortion rate was 28 out of 1000 women aged 15-44. The report showed that the lowest abortion rates in the world were in Western and Northern Europe where abortion is accessible with few restrictions.

The report also showed that in South Africa, the incidence of infection resulting from abortion decreased by 52 per cent after a law permitting abortion was passed in 1996. The Human Reproduction Programme (the World Health Organization’s special programme of research in human reproduction) published a fact sheet that states that an estimated seven million women are hospitalized each year for treatment of abortion-related complications and thousands lose their lives as a result of unsafe abortions. Surely these risks and complications can be avoided if abortions are carried out with the assistance of trained health care providers.

Legalizing abortion does not mean that all pregnant women should get one. Rather, it preserves their autonomy and freedom to make choices based on personal convictions. The beauty of being pro-choice is in the name itself— ‘choice’. Isn’t that what individual freedom is about? That all persons be allowed to control their own affairs especially in matters of life and death