Abortion and politics

What does international human rights law say?

Should abortion be illegal?

Should women having abortions go to jail?

Should women having miscarriages be investigated for murder?

Is it reasonable vote based on abortion alone?

What does international human rights law say?

Opponents of the right to life often claim that abortion is a human right, and that ‘the UN says so’. Neither of these are true. While some UN agencies and treaty bodies with no legal authority often advocate for abortion against the explicit position of many of their member states, UN member states have always been very clear that abortion is not a human right – in fact, they have often said the opposite, that abortion is a violation of the human right to life.

At least 3 major international agreements enshrine protection for unborn children.

The International Covenant on Civil and Political Rights, a legally binding treaty, states clearly:

“1. Every human being has the inherent right to life. This right shall be protected by law.” (Article 6)

If unborn children are human beings – which, as we have seen, is proven by science – then in international law they have a right to life which requires legal protection. This right is not violable even ‘In time of public emergency, which threatens the life of the nation’ (Article 4). The ICCPR also forbids capital punishment specifically for pregnant women, recognising that unborn children need extra legal protection.

The Convention on the Rights of the Child, another binding international treaty, re-affirms this right to life of every child (Article 6) and states that:

“States Parties shall ensure to the maximum extent possible the survival and development of the child” (Article 6)

It also makes explicitly clear that childhood begins before birth:

“the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth” (Preamble)

Finally, the agreement signed at the International Conference on Population and Development, while not legally binding, is an important document containing consensus positions adopted by 179 governments. It states:

“Governments should take appropriate steps to help women avoid abortion, which in no case should be promoted as a method of family planning”. (7.24)

It also requires governments to “reduce recourse to abortion”. (8.25)

Countries are bound by international law to protect the right to life of all human beings, including children before birth, and bound by political agreement not to promote abortion as a method of family planning, as well as to take steps to help women avoid abortion. Legalisation of abortion is the exact opposite of these commitments.

Should abortion be illegal?

It is common to think of the law as punitive: punishing people who do the wrong thing. It is also common to think of the law as restrictive: as the state interfering to stop people from living their lives in the way they want. With these ideas about the law, it is easy to see why some people object to a law prohibiting abortion. No one wants to see people punished. No one wants the state to interfere in the lives of others unless absolutely necessary. Hence some people think that although abortion is wrong, it should not be legally prohibited.

I think these characterisations of the law are unfair; they do not highlight the central, good purpose of good law: to defend and protect the most vulnerable members of society. All of us want some laws: we all recognise how easily innocent people can be harmed, even with the best of intentions. And so we all recognise the need for the law to protect ourselves, and especially to protect the most innocent.

This is why international law speaks in such clear terms about the rights of every single human being, no matter their size, their level of development, their gender, race, or their abilities. It states clearly (see above) that “Every human being has the inherent right to life. This right shall be protected by law.”

This says two things: firstly, that the protection afforded by the law belongs to every human being. And secondly, that it is not enough to believe in the right to life privately or personally: it says explicitly that the right to life needs to be protected by law. Without this, there is no substantive right to life.

Martin Luther King Jr. said that “The law cannot make the white man love me. But it can stop him from lynching me.” The law does not always change hearts and minds – though it certainly can do to a large degree. But pro-lifers do not oppose abortion because they don’t like it, as if it were mere preference. Nor do they think that prohibiting abortion will make everyone love and respect unborn children. But the law does protect them, just as it protects everyone else from being killed, however much they might be hated. Because unborn children are equal human beings with equal rights, they should have equal protection in the law. Since other human beings have legal protection against being killed, so should unborn children.

Should women having abortions go to jail?

It is sometimes claimed that for the pro-life view to be consistent, it should advocate for women who have abortions to be jailed. This, it is claimed, is a horrific conclusion, so as to render the pro-life position absurd. It is worth noting to begin with that the mainstream modern pro-life movement is generally united in opposing retributive punishment for women obtaining abortions. Hence, examination of the many Bills prohibiting abortion in various US states shows that women are always exempted, usually with an explicit provision to this effect. In many countries, even when there is a punishment prescribed for women having abortions, this is never implemented in practice, as in Malta (despite hundreds of abortions there each year).

Laws can always be framed in two ways: restricting or punishing the culprits, or protecting the victims. They will inevitably sound more negative when framed as punitive. But the point of them is ultimately to protect the vulnerable. As international law dictates, every human being’s right to life must be protected by law – meaning that there must be a legal prohibition on anyone violating that right.

Still, there are many different ways you could protect the unborn child in law without punishing the mother – perhaps by punishing doctors (e.g. removal of their licence) and thereby making abortion less accessible.

My personal view is that I don’t want to see anyone go to jail. I am also opposed to retributive punishment for those who are truly remorseful and at low risk of harming others in the future. I am opposed to retributive punishment for women obtaining abortions.

Still, this doesn’t answer the central question: aren’t I inconsistent or insincere for not wanting women to be punished, if I really think abortion is as serious as I say?

A helpful place to start in setting our intuitions is the question of infanticide. Should women go to jail for infanticide in some cases? In all cases? How should we decide? If you think they should go to jail in some cases of infanticide, why shouldn’t they go to jail for late-term abortions? If you think they should not be jailed in cases of infanticide (perhaps because these situations often arise out of desperation), does that undermine your belief that infants are human beings entitled to equal rights?

Neither alternative is easy or comfortable to maintain. All of us are probably somewhat uneasy about sending women to jail for killing their newborn infant. But all of us likewise maintain that to kill a newborn infant is murder. So there are no simple options for anyone – no one is off the hook. To illustrate this, recall that one of the UK Parliament’s most ardent pro-abortion MPs a few years ago explicitly included in her abortion decriminalisation Bill a provision to prohibit abortion after 24 weeks, including life imprisonment for those who violated it. She had to include this provision to show the overwhelmingly pro-choice population that she was not an extremist who supported abortion up to birth – but that prohibition naturally came with a severe penalty for breaking the law. No one – not even Parliament’s fiercest pro-abortion advocates – finds this an easy balance. In theory, could it be just to imprison someone for an abortion? I think all of us would have to say yes: surely someone who performed a partial birth abortion on themselves for a trivial reason (suppose they discovered the sex of the baby at that moment) has done something seriously wrong and is deserving of punishment. So the fact that this question is difficult for pro-lifers shows little in itself: it is a difficult question for everyone.

Of course, abortions that late for such trivial reasons are very rare, which is precisely part of the reason a pro-lifer can reasonably say that, in practice, women should not be punished for abortion.

Bear in mind at the same time that abortion advocates portraying pro-lifers as evil for (ostensibly) wanting women jailed is somewhat disingenuous: there are plenty of proposals across the world to ban pro-lifers from, for example, offering support to women outside abortion clinics – and these are very often women themselves. Laws banning such behaviour usually include a provision for imprisonment if a woman violates such a law by offering support (or – thought crime being a real thing – in some cases even silently praying outside a clinic). Likewise, some jurisdictions have put forward proposals to jail doctors who refuse to perform abortions against their conscience (in Kenya, they proposed a 3 year jail term along with a million shilling fine). In Argentina, Dr Leandro Rodriguez Lastra was given a suspended 14 month jail term for not performing an abortion against his conscience (and his clinical judgment).

You might disagree with the actions of women offering support outside abortion clinics, or silently praying, or doctors (male or female) who refuse to perform abortions. But you probably also think that putting them behind bars is hideously draconian. What this shows is that anyone from both sides can be criticised for ostensibly wanting to see people locked up – the difference is that pro-lifers clearly do not support women being jailed for abortion, whereas abortion advocates clearly do want to see pro-lifers put in jail for these various activities.

But why do pro-lifers not support putting women in jail for abortion, if they really think it is so serious?

There are a variety of reasons – other than opposing retributive punishment in general – why you might think that individual women should not go to jail: many abortions are coerced; many men abandon their partner and children putting women in this position while escaping without responsibility or punishment; many women do not know, or are even lied to, about the reality of unborn life and hence are usually unaware that the unborn child is a person; many abortions are done out of desperation, and so on.

Another reason for opposing jail is that you might think it is not the best way to humanise unborn children in the long-term. My own instinct is that it would be far more effective, life-giving and merciful for women having abortions to be counselled about foetal development and why abortion is harmful to both mother and child, and then given the practical support she needs to avoid abortion in future.

Yet another reason, and an historically important one, is that women are less likely to report the person supplying abortion pills or performing the abortion if they are at risk of prosecution as well.

Given the state of our culture on the question of abortion generally, the inequalities between men and women when it comes to abandoning children, the difficulty in determining whether someone really believed their foetus was a person or not, and so on, it seems reasonable as a practical matter for these individual exemptions to be generalised. There may be some cases where the evidence of serious wrongdoing is so clear that jail is seemingly appropriate and could override the presumption of non-culpability – but that is true for everyone, whether they are pro-life or not – for example, a partial birth abortion because the baby is a baby girl. So no one is immune to this possibility.

In short, there are good reasons to support a presumption of non-culpability for women obtaining abortions. In the rare cases where there is clear evidence of culpability and serious wrongdoing, there are two options: continue to apply the presumption of non-culpability anyway as the best practical option, or apply punishment in these rare cases. Opinion among pro-lifers might be divided on that question. But here’s the key point: opinion among pro-choicers would be similarly divided on that question. It is not a problem unique to the pro-life view: it is a problem arising from the conflict between moral commitments that all of us share with our instinctive sympathy for new mothers.

In sum, there are no easy answers for anyone – pro-life or pro-choice. No one wants to see women jailed, but we all want to see human beings protected – it is just a question of to whom we extend that protection. In practice, for the reasons I gave, there are good reasons to presume that women having abortions are not culpable as the default position. Whether that presumption should ever be overturned for the purposes of retributive punishment is a difficult question for both pro-lifers and pro-choicers.

Should women having miscarriages be investigated for murder?

If miscarriage involves the death of a human being, and indeed a very premature death, doesn’t it follow that women who have miscarriages should be investigated for murder?

This question encompasses two questions: should women be investigated for murder in these situations, and are they investigated for (and even charged with) murder in countries where abortion is illegal? We’ll begin with the first question.

In general, deaths are not investigated for murder, for two general reasons: a) in most cases it would be a complete waste of time, and b) it would be unnecessarily distressing to those most deeply affected by the individual’s death.

These factors are, of course, maintained in the case of abortion. There are many thousands of miscarriages a year in the UK and many millions in other countries. It is thought that around a quarter of all known pregnancies end in miscarriage, and an even higher number of spontaneous abortions occur before the pregnancy is known about. To investigate all of these would be a complete waste of police time, and be unnecessarily distressing to the mother and others, who are grieving their lost child.

For these reasons, we generally set a threshold of suspicion for investigating deaths – there has to be substantial specific evidence that the death was procured by another person. Of course, most of us already agree that in some cases abortion has to be investigated by police – if there is suspicion of a coerced abortion, for example, or if there is suspicion of partial birth abortion in the third trimester. So the fact that this threshold is sometimes crossed is not a problem for the pro-life position.

But in general, that threshold is not crossed. In most cases, it would be a waste of time and be profoundly distressing to the mother and others.

Another factor is that, as I have argued in another article, women should in general not be retributively punished for having an abortion. Hence the likelihood of conviction is even lower, which is another reason not to routinely investigate miscarriages.

Hence there are good reasons to set the bar high for investigating the death of an unborn child. This bar can be met – as we all agree – but usually is not.

Is it, in fact, the case that women are investigated for miscarriages and even punished for them?

In the overwhelming majority of countries which prohibit abortion (and in countries which make it illegal after a certain point, or without following certain procedures), there is not even the claim that this happens. In the UK, an abortion without two signatures from doctors is illegal (except in an emergency), and yet no one is ever investigated for a miscarriage. Likewise in pro-life countries like Malta or Poland, this is never suggested.

There are a few countries where it is claimed that women are investigated and punished for having miscarriages. In my view, the evidence for this is extremely thin.

Regardless, even if it is true that this has occasionally happened, it certainly is not a common occurrence even in those countries. Thousands of miscarriages occur in El Salvador every year, for example, and very few are investigated by the police. Outside these countries, investigation of miscarriage is overwhelmingly rare globally. And it certainly does not need to be a part of pro-life legislation.

Is it reasonable to vote based on abortion alone?

It is sometimes suggested that to vote for a political candidate only on the basis of their stance on abortion is misguided. I give an argument for single-issue voting on abortion in my paper on this topic, available with my other academic papers here: https://calumsblog.com/academic-papers/

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