As today
is the so-called March for life, I thought I would take some time to explain
why we have no abortion law, and why I think we should not have one. Often, there is a lack of clarity in the debate, so
maybe it is helpful to offer some rather than getting lost in the mire of
choice and life rhetoric. Let me just say from the outset that I applaud democratic
engagement on all topics, especially this one.
Relevant historical considerations
·
Abortion laws arose alongside
the development of gynecology and obstetrics, at the time a predominately male
field of study and practice. Gynecologists resented the control the
undisciplined practices of midwifery had over women’s bodies and the subject
area, so they used abortion as a discursive tactic to discredit midwifery and
assert their own authority. Concomitant with this development and, indeed, in
part, because of it, women’s bodies were subject to an increasing patriarchal
medical gaze.
·
It is no surprise, therefore,
that laws attempting to regulate (primarily women’s) reproduction, sexuality,
and parenting, have disproportionately targeted and/or affected citizens who
were already marginalized by an unjust capitalist system.
·
Criminalization was not very
effective in stopping a significant number of abortions. And it is difficult to
gather statistics, because many went unreported by virtue of being illegal.
Because of their clandestine nature and lack of proper safeguards, these
abortions were rather dangerous. It’s more difficult to treat a botched
abortion than it is to perform a proper one.
·
There has never been a legal,
nor even a Christian, consensus on “the sanctity of life” or when life begins.
This has changed with science. For several centuries, the Catholic Church
allowed abortion until quickening.
·
Any claims to “sanctity of
life” by religious authorities and their pretensions to ethical superiority,
should be tempered with the observation that the Catholic church once seriously
debated the question of whether women and Indigenous peoples possess souls at all, and especially the very
“important” question of whether they were equivalent to those of European men.
Legal Arguments against Abortion Law
COMMON
LEGAL PRINCIPLES
·
There is an important
distinction between individual morality and the political (shared) morality of
the community — as these principles are embodied by laws as an overlapping
consensus, and/or societies general will.
·
Criminal law ought to be based
on only those issues on which there is an overlapping consensus
·
To prevent important
violations of liberty from the state, citizens ought to be afforded liberty
unless and until actions are prohibited by the state. If it were otherwise,
citizens would not be able to govern their conduct according to legal principles.
·
Individuals ought to respect
laws on contentious issues; for law is a product of compromise, and without
compromise and mutual fair play, society could not function.
·
The government is
constitutionally prohibited, both by section 28 and section 15, from
discriminating based on sex. Section 28 is not subject to the notwithstanding
clause, so if abortion laws were found to violate section 28, which I think
they do, this judgement could not be overridden by Parliament, as for example,
same-sex marriage — at least in theory — could be.
·
Both empirically and
normatively, Canada is a multicultural society with many visions of the good
life, which hold widely differing conceptions of what human personhood is and
when such personhood begins. Domination of the majority or a minority is both
ethically unacceptable and impracticable in the current context.
WHY WAS
ABORTION STRUCK DOWN?
In the first charter Morgenthaler case, the
Supreme Court struck down the Pierre Trudeau’s administration partial
decriminalization of abortion because it was found to violate section 7 rights.
Section 7 guarantees the right to life, liberty, and security of person, and
the right not to be deprived thereof, except in accordance with the principles
of fundamental justice. At the time this case was decided, the court had
identified arbitrariness as one of the fundamental principles. Hamish Stuart
describes section 7 as a test of instrumental rationality. In layperson terms,
it would be bad if legislatures made irrational laws. In order to assess a law,
adjudicators look to its pith , substance, and purpose. This is determined by
several factors, including, but not limited to, legislative debate, preambles,
structures of acts, canonized rules of interpretation, and so forth. At the
time, the Trudeau administration decided to institute therapeutic abortion to
protect the health of women. This was the policy that was democratically chosen
by Parliament. They did not reference the sanctity of life, the dignity of
women, or any other theological principle.
Since
this was the obvious legislative purpose, the abortion regime was found
unconstitutional because it was administered unevenly and unfairly throughout
the country. Far from promoting women’s health, that regime endangered the
health of many women. While presenting serious liberty infringements, the main
issue was the security of person interests of women affected by the law. As a
side note, one can also argue that the law infringed equality concerns on
several grounds beyond sex discrimination, favouring those who were married,
had money, and lived in certain areas. Importantly, this was not “an activist”
decision. The court did not rule that abortion restriction is unconstitutional
(with respect, they should have), rejecting Justice Wilson’s link between
abortion and conscience. They did not say that Parliament could not legislate
on abortion. They merely said this particular
law was unconstitutional. It was a bad law. Parliament may legislate on
abortion. I believe it would be unwise to do so, but as the law stands they are
free to do so. They have not managed to pass any bills on this matter. And it
very well could be found unconstitutional now.
SUBSEQUENT
DEVELOPMENTS IN LAW
Additional principles of fundamental justice — Following the Morgenthaler decision, the court has
recognized overbreadth and gross-disproportionality as principles of
fundamental justice. Though it is unclear what role, if any, overbreadth would
play in judicial challenges to an abortion regime, it’s clear that
gross-disproportionality would invalidate the law because the law would
infringe section 7 interests, out of sync with any reasonable objective; it is would
be a grossly disproportionate burden for many women, and indeed possibly women
as a class. In addition, cases such as Carter and PHS have a much broader
definition of the right to life, and when it is infringed, particularly in the
case of matters of health. Moreover, the Hutchinson case recently established
that unwanted pregnancy, because of the complications that may arise,
constitutes risk of bodily harm. This would engage section 7, and it would
almost certainly render abortion laws unconstitutional.
Developments
in section 15 jurisprudence — Following Morgenthaler, equality jurisprudence
recognizes the importance of human dignity, historical disadvantage,
stereotypical treatment, and the value of feminist jurisprudence and charter
interpretation. While abortion may or may not offend the dignity of fetuses,
they do not have rights, whereas women residing in Canada do. Forcing women to
carry fetuses they do not want perpetuates historical disadvantage and
stereotyping, by suggesting that the primary function of women is to carry
children, and they are not capable of making decisions affecting their own bodies.
By subordinating her desires to the interests of the state, the state is
essentially treating her as a means and not an end. This is only justifiable in
a state of emergency or war .
Developments in State Neutrality Towards
Religious Belief and conscientious convictions — Though there are many
putatively secular arguments against abortion, nearly all of them rely on some
sort of essentialist ontology of the human person, and most persons who oppose
abortion come from a religious background. Just because a law comes from
religion, it doesn’t preclude the state from enacting this provision of law.
Indeed, many religions, as well as nonreligious worldviews, create overlapping
consensus on moral questions, arriving at similar convictions through different
means. Nevertheless, the ongoing connection between religion and pro-life
advocacy ought to give us pause, considering that the state has a duty to be
neutral in matters of personal conviction where there is considerable
disagreement.
WHY
AREN’T FETUSES LEGAL PERSONS
Numerous
decisions have stated that fetuses are not legal persons. The reason fetuses
are not legal persons (entities bearing rights capable of legal [e.g.
corporations] and natural [e.g. born human beings]) personhood at law is that
they cannot be invested with rights or responsibilities because they do not
have agency and/or an independent biological existence from their mother. Strictly
speaking, Parliament is not prohibited from legislating that unborn babies are
persons. It has not done so, however. It has chosen to maintain the common law
definition. The reason it has chosen to maintain the common law is mainly
pragmatic. If the fetus were a legal person, this would create a host of
complicated problems. Is it permissible for a disabled child to sue her parent
for possible conditions acquired during pregnancy? If the life of the mother is
at stake, which life ought to take priority and why. Should we incarcerate
reckless pregnant women. These are complicated questions, which ought to be
decided by Parliament, not the courts. Again, as part of the democratic
process, Parliament has — wisely in my estimation — chosen not to change the
common law definition
Moral Arguments
IS NOT A
FETUS A HUMAN BEING?
A
standard argument against abortion is as follows: anything that exists in
potential has the right to develop to its full actuality, so because the fetus
could develop into a functioning human being, Mozart or whoever, it ought to be
protected and given the rights of a full human being. There is a deep problem
with the Aristotelian ethical logic that undergirds Christian theology.
According to traditional moral theology, if I think about stealing or murder,
long enough, if I really dwell on that, it is equivalent to me having actually
completed this activity. It is true that in very special cases, mainly for
public safety, the law punishes acts that have been committed in potential, as
it were, like conspiracy to commit murder, but generally modern persons have a
much more developed conception of actuality and potentiality. If abortion were
made illegal once again, it is difficult to see where this chain of causation
would end. At least the Catholic church is consistent in opposition to
contraception, but if any action or technology that disrupts the putatively
natural process of procreation is unnatural, then one could conceivably argue
that potential sperm are part of future life, and so masturbation ought to be
punished as well. Good luck enforcing that law. As a popular battle cry goes —
if abortion is murder, fellatio is cannibalism!
ONE
CANNOT CLAIM THAT ABORTION IS EITHER “NATURAL” OR “UNNATURAL”
The
Naturalistic Fallacy is a basic principle of modern ethics, whereby one cannot
derive an ethical command from a descriptive or putatively natural fact. Nature
cannot serve as a guide for ethical judgement. My response to those who call
anal-sex, for example, an unnatural form of intercourse is to argue that even
if it is an unnatural form of intercourse — itself a premise flying in the face
of zoological evidence — rape is a form of intercourse perfectly natural to
most mammalian species; yet most of us would consider it to be reprehensible.
The opposite holds true as well. If the naturalistic fallacy did in fact tell
us anything, we would have to conclude that abortion is acceptable because it
is natural. Somewhere around 20% of all pregnancies miscarry. I am in no way
trying to minimize the pain of such losses: I merely suggest that nature cannot
be a guide either way.
BODILY
INTEGRITY AND PERSONAL CONSCIENCE
One must
not use moral agents entirely as means because they deserve respect as an end themselves.
Supposing for a moment that the fetus is a fully grown adult, capable of usual
intellectual reasoning, feeling the full gamut of pain, and entitled to all the
same legal rights, it is unethical to tie someone to an intravenous machine and
impair her functioning, so that that person can remain alive. This would still
hold true if we use a less drastic metaphor like forcing someone to remain in a
wheelchair for nine months, so that another person who they don’t know can stay
alive. And it would still hold true even if they had partial culpability in her
dependency. I think pregnancy is much more drastic than being in a wheelchair
for nine months, however. As natural and joyous as some may find it, the end
process is incredibly painful, and, yes, even with modern technology, it is
life-threatening. Forcing someone to give birth when she does not want to essentially inflicting the world’s most
excruciating pain upon her without her consent. As morally questionable as some
choices to abort may appear, I would never do this to someone against her
consent. Pregnancy, wonderful though it sometimes maybe, forces a woman to
carry a parasitic life form that may kill her and jettison this life form, by
means of violent muscle contractions, outside of her body. “In sorrow thou
shall conceive,” indeed. Women should be allowed to refuse the patriarchal
edict of the chauvinist Israelite war-God!
Being
used as incubator or respirator for a developing life form or an adult person would
be more reprehensible, if I hated the person in question, and being with him cause
me great suffering. They could be a constant reminder of my sexual assault, bad
relationship and/or social subordination . This action may be commendable; it
ought not to be obligatory! The point is it is unethical for a party possessed
with the power of the government to compel me I must do so. That is equivalent
to torture. The situation is different when the fetus has left the pregnant
woman’s body. Then she can access support; move independently of her child; and
even give the child up for adoption. The child is not actually part of her
body, and so she does not have the same ownership and interconnection with it
as she did when she was pregnant. The fetus, or, indeed, the person I kill, by
removing myself from the intravenous life-support machine may or may not feel
pain; it may be bloody, gruesome, unpleasant, bad for my health, indicative of
the culture of nihilism, or whatever other social ill persons who
sanctimoniously claim to be pro-life level at those who believe in abortion.
The fact is one cannot ethically force me to be tied to that machine for nine
months, if one cares about anyone’s life beyond the life of an imagined fetus.
As a person with a disability, I am particularly aware of the lasting damage
caused by ongoing and unwanted corporeal violations.
WHY IS
IT ONLY HUMAN LIFE?
I am
always struck by the pro-lifers who are meat eaters. A pig, for example, has
the intelligence of a five-year-old child. Whatever suffering is experienced by
the fetus, it is nothing compared to the excruciating misery caused by factory
farming. This isn’t to deny the importance of anthropocentric religious
conceptions of the human person for some citizens. Nevertheless, once the
argument admits this point, it becomes difficult to justify legal prohibitions
against abortion: they have moved out of the overlapping consensus of political
life and become part of a particularistic and environmentally problematic
worldview.
QUALITY
OF LIFE FOR PERSONS LIVING
Persons
frequently inquire of me something like the following: how can I, as a person
with a disability, actively support abortion when so many persons with
disabilities often don’t get to live in this world precisely because of
abortion? Are not our lives equally valuable? Does this not amount to a kind of
cultural genocide? To which I must answer yes, in part. In general, the world
is overpopulated, and human beings are wreaking havoc on the planet. Persons in
the global North are consuming far more than those in the global South: the
last thing we need to do is be having more children. Clearly, I would like to
see the kind of structural transformation that has every person regardless of
her perspective disability, race, and/or socioeconomic status supported.
At present,
however, it is difficult, if not nearly impossible, to see beyond the unjust
structures of neoliberal capitalism. I realize that this is a-chicken-and-egg
scenario, but, frankly, my support of abortion, at least in part, comes from
principled self interest. We do not take care of the socially disadvantaged
persons we have in our society. Persons with my level of mobility impairment
must fight for is every resource which we acquire, and I live with guilt
because I live in a modicum of comfort. Remember too that this is in Canada,
which is an extremely affluent postindustrial society.
Can any
of us really comprehend the abject subaltern condition of disabled persons in
the global South. It isn’t to say that once they are here, disabled persons do
not live lives of quality with tremendous interdependent love. To maintain that
and protect that, we must staunchly refuse abortion laws, and I find the
deployment of disability to support antiabortion laws, simply because a
particular person may or may not have existed on account of abortion, to be a
strange example of narcissistic egoism as erroneous, if not more so, than my
narcissistic self interest in supporting abortion. The pro-life movement does
not have moral legitimacy until every child is fed and loved: only then may
abortion become an issue of moral significance.
AGAINST
THE FETISHISTIC IMAGE OF THE CHILD, NATURE, AND MATERNITY
The Nazi
practice of euthanasia is well-known and comes up as a red herring in many
arguments. Nevertheless, what is less often discussed is the other sinister
side of these sorts of dark biopolitics — namely, the Nazi breeding program.
Every totalitarian regime, starting from the Persian Empire, has relied on
control over women’s bodies and the maintenance of heterosexist ideas concerning
sexuality as primary indicators of national health. The Jews were a threat to
the purity of the German blood, and some women had to reproduce like cattle to
ensure the health of the German nation. In his book, No Future: Queer Theory and the Death Drive, Lee
Edelman labels this sort of rhetorical strategy reproductive futurism. While
not endorsing all of his theory’s hedonistic implications, I do resent that the
child, and particularly “the poor and innocent fetus,” which pro-lifers parade around
like some idyllic-yet-macabre talisman, becomes the primary means through which
the modern biopolitical state exerts unwarranted control over its citizens. It
is for the sake of the imaginary child that we are deferring enjoyment. Yet we
ignore the suffering done to fully developed children, as well as the suffering
and ideological pressure exerted on women’s bodies.
Nowhere
is this more apparent than the nauseating speeches given by women who regret
their abortion at pro-life rallies. Voluntarily re-assuming their subjugated
role as feminine helpmate, they speak of their horrendous transgression as
crowds of men and women cheer. In this pantomime of self-righteous repentance,
the women brand themselves with a proverbial scarlet letter. This signification
of, “woman who once had an abortion” becomes a badge of honour and a mark of
shame as the women are consumed and effaced by the ceaseless and destructive
cycle of heterosexual reproduction, ready and willing to be submissive and
inseminated like cattle.
Children and pregnancy are wonderful aspects of
the human experience: persons should enjoy these when and if they want to do
so.
Conclusion
Restrictions on
abortion are unconstitutional, heterosexist, antidemocratic, patriarchal,
irrational, presumptuous, and unwise, bloody fetal tissue be damned!