Abortion is No Place for the Law

Victorian politicians are debating how to reform law on abortion. In Victoria, as in other states, abortion remains a crime. This is inconsistent with what happens. There are nearly 100 000 abortions every year in Australia.

The Victorian government will decide between 2 Models. According to Model B, abortion will be available on request until 24 weeks of pregnancy, but after that point 2 doctors must agree that it is indicated. Doctors who fail to comply with the law would receive professional and other sanctions. On Model C, abortion is available on request all through pregnancy. Premier Brumby and a majority of politicians support Model B.

Why is the imposition of sanctions on doctors who provide abortions so attractive? Firstly, abortion is an undesirable means of birth control. Most people would prefer to find other ways of not having unwanted children. Secondly, many people believe that as the fetus grows, and looks more like a baby, its moral status increases. After 24 weeks, some fetuses are even capable of living in intensive care units, outside the womb, as extremely premature newborns.

Despite its superficial attractiveness, Model B is deeply morally flawed. According to Model B, the moral status of the fetus, and whether it is kept alive or aborted, depends on the judgement of 2 doctors. Their decisions will usually be based on whether there is a disease or disability present. But this implies that fetuses with disabilities have less of a right to life than those which do not have disabilities. This is discrimination against the disabled and those with diseases. We would not allow 2 doctors to kill a child just because it had spina bifida. Why would we think the presence of spina bifida should change the moral standing of a fetus? Doctors can withdraw medical treatment leading to the deaths of their patients, but only when the patient’s life is no longer worth living. This is not the case in virtually all abortions.

Either the fetus after 24 weeks of gestation is like a child, and has a right to life, in which case all abortions after 24 weeks are wrong, or it does not, in which case any abortion is permissible after 24 weeks (as Model C implies). To base abortion decisions on the presence of disability, or doctors’ judgements, implies moral status and right to life depend on either being free of disability or meeting the approval of others. This is eugenic.

People fear that if there are no sanctions, more abortions will occur or occur for trivial reasons. This fear is groundless. The ACT has a liberal abortion law like Model C and there are no increased numbers of abortions. There are only a couple of hundred late abortions in Australia per year and virtually all of these are for medical abnormalities detected late in pregnancy. Women do not endure 24 weeks of pregnancy only to come forward for a social termination or for trivial reasons. The presence of sanctions only places further obstacles to a small number of women who make agonising and profound decisions late in their pregnancy. There is no need to punish doctors. Those doctors who disapprove can always pass the care of the woman onto another doctor.

We can all agree with those who see abortion as undesirable. We should promote other means of birth control and reduce the need for abortion. And we may disagree with people’s decisions to have an abortion. But the decision to have an abortion is one of the most private and intimate decisions for a woman. There is no place the law there.

There is an important distinction between morality and law. People may make the wrong decision to terminate a pregnancy. They should be counselled, advised and we can even attempt to persuade them to change their mind. But their actions should only be illegal if they harm another person. The paradox of the abortion debate is that there appears to be an innocent person who is harmed, and so we want some sanctions, but there is not. If there were, all abortions should be illegal.

What is the alternative? Model B implies that women can be denied late abortions. This means that they either have to be forced against their will to undergo delivery of the child, or endure the remainder of pregnancy, and adopt out the child. I am personally in favour of adoption. For example, hundreds of thousands of embryos which are no longer required by couples undergoing IVF are destroyed rather than going to other infertile couples or research. This is deeply wrong. But it should not be illegal. We should not punish people who choose to destroy their own embryos rather than adopt them out. We should perhaps raise the profile of adoption, of embryos and fetuses, as a moral option. But we should not require it by law, even indirectly.

The most publicised case of late abortion which motivated law reform in Victoria is of a woman who was suicidal over a 32 week pregnancy involving a fetus with dwarfism. The abnormality was only diagnosed late. Some people think she made the wrong decision (I personally don’t know all the facts of her situation). To be sure, she should be and was counselled and encouraged to consider adoption. But should she have been forced to carry on the pregnancy? Or forced to have a Caesarean and adopt the child out? Or forced by law to keep a child she deeply did not want? All of these options are more undesirable than the unhappy choice of having an abortion a few weeks later than she should have because of delays in diagnosis.

One of the greatest achievements of modern civilised society is family planning. It has promoted women and children’s health and education, equality and societal progress. People should make decisions about when to have children, how many children to have and what kind of children to have. Abortion is a necessary part of family planning, albeit an less than perfect part.

There is only one right way to reform law on abortion: to adopt a fully liberal approach with no sanctions against doctors who perform them. Abortion should not be a crime. There is no place for the law in regulating access to abortion. Model C is the ethical option.

This article will also be published on ABC Unleashed

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