Life And Abortion

It is paradoxical that many of those who talk of extending human rights openly advocate abortion. To support abortion is to deny the most fundamental of all human rights - the right to life. Without this right all other human rights become meaningless.

Few questions in jurisprudence engender more controversy than the issue of abortion and its relationship to the status and the rights of the foetus. The issue of abortion has been addressed by many forums including very authoritative judicial institutions such as the US Supreme Court and the European Court of Human Rights. Yet, the issue refuses to die. For many, despite the authoritative pronouncements of various legal and philosophical minds, the issue is not so clear cut. To some people, abortion constitutes an unwarranted interference with the rights of the unborn and yet to others, a proper exercise of a woman's rights to choice. A good number of these discussions, however, have nothing to do with any objective, scientific, or philosophical investigation; instead they are forums for the ideological struggles whose sole interest lies in defending and/or imposing a particular perspective on things by any means whatsoever.

In considering the controversies surrounding the right to life and abortion, it is imperative to consider the nature of the right to life because the manner in which legal theory has constructed this right ultimately affects the decision to accord or deny the right to life to unborn children. In this regard, it has been argued that a person's first right is the right to life. This right existed prior to the formation of society itself, inscribed as it is in the nature of the individual. Except in legitimate defence or to assure the common good, we cannot consider causing death to an innocent life. What makes the right to life so important is that it is the precondition of any enjoyment of all other rights. This is why there are so many protections associated with the right to life.

It is on the basis of this conception of the right to life that most international human rights instruments explicitly recognize the right to life. Many of these treaties, including the European Convention on Human Rights, developed as a response to the human rights abuses which occurred during World War II. European states were personally acquainted with the horrors of the Nazi atrocities. Degradation of the right to life produced special concern. Certain categories of In contrast, the American Convention on Human Rights, patterned on the European Convention, expressly protects unborn children. but makes no explicit provision relating to an unborn child's right to life. yet from the early history of the European Convention such protection for the unborn child has been claimed. Each application dealing with the unborn child's right to life has centred around abortion. Thus, although the European Convention strives to achieve greater unity among its members concerning basic human rights, the member states form no consensus on this crucial issue. is an illuminating example of judicial practice in this area. In that case, the foetus was 10 weeks old at the time of termination. The English High Court had refused to grant an injunction to a father who sought to prevent his wife's abortion. The applicant appealed to Strasbourg, claiming that the British Abortion Act 1967 contravened Article 2 of the European Convention on Human Rights which, he claimed, protected the life of the unborn foetus. The Commission rejected the application as inadmissible. Considering whether Article 2 applied to the unborn foetus, the Commission stated:

Article 2, paragraph 1, first sentence, provides: 'Everyone's right to life shall be protected by law' (in the French text: 'Le droit de toute personne a la vie est protégé par la loi'). The Commission, in its interpretation of this clause and, in particular, of the terms 'everyone' and 'life' has examined the ordinary meaning of the provision in the context both of Article 2 and of the Convention as a whole, taking into account the object and purpose of the Convention.

7. The Commission first notes that the term 'everyone' ('toute personne') is not defined in the Convention. It appears in Article 1 and in Section 1, apart from Article 2, paragraph 1, in Articles 5, 6, 8 to 11 and 13. In nearly all these instances the use of the word is such that it can apply only postnatally. None indicates clearly that it has any possible prenatal application, although such application in a rare case -e.g. under Article 6 (1)- cannot be entirely exclude

It is therefore clear that according to the jurisprudence of the European system of human rights as well as that of many national courts, a foetus does not enjoy the right to life in the same manner or to the same extent as a child who has left his or her mother's womb. In other words, a foetus is denied the right which we described as the most fundamental of all rights. What is the justification for this limit in the application of the right to life?

The manner in which the Unborn Victims of Violence Act 2004 ('the Act') treats different instances of pregnancy termination goes some way in answering this qustion. The Act creates a separate offence for anyone harming or killing an unborn child while committing a federal crime against a pregnant woman. The Act defines the term 'unborn child' as 'a child in utero' and further states that 'child in utero' means 'a member of the species of homo sapiens, at any stage of development, who is carried in the womb.' The Act contains an 'abortion exception', prohibiting prosecution under the Act for an abortion to which the woman has consented, and also prohibits prosecution for harm resulting from medical treatment to the mother or foetus or for acts of the mother toward the foetus.

The Act's different treatment of the mother's choice to terminate a pregnancy and third parties' actions reveals the deep moral uncertainty surrounding the nature of foetal life and its rights and interests. In this regard, it is argued that there is fundamental moral uncertainty about the moral status of foetal life. Generally accepted methods of moral reasoning do not tell us the extent to which foetal life is morally entitled to the same protection as undoubted human life. Glanville Williams notes that the argument turns in part on the meaning of words. Ordinary language is uncertain. Women who are happy with their pregnancy think of themselves as carrying a child, or an unborn child, while unwilling mothers tend to use the unfriendly word 'it' (as in 'I am getting rid of it'). However, it is legally incorrect to suppose that an 'unborn child' is a child. A family that claimed social security benefit for their unborn child, without mentioning that it was unborn would doubtless get into trouble. This position is a direct result of the uncertainty surrounding the moral status of the foetus. The claim that women's rights to procure an abortion rest on the premise that foetal life is morally entitled to no or minimal protection is false because we do not know, objectively, whether this is true or false.

The question then is how we act in the face of such uncertainty. In Roe v Wade, the dissenting judges argued that the political process exists to resolve such unresolved moral questions. However, this opinion is somewhat mistaken. It is indeed true that sometimes, high-stakes questions that are morally uncertain are properly resolved by the political process. But sometimes, the political process must leave each individual free to resolve such questions for himself or herself.

Ireland's attempts to legislate on the moral status of foetal life exemplify the differences in the two approaches. By way of a referendum in 1983, Ireland decided to add a declaration that the State acknowledges the right to life of the unborn and, with due regard for the equal right to life of the mother guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right. In 1988, in an action taken by the attorney general at the request of the Society for the Protection of Unborn Children, the Irish Supreme Court interpreted this clause as prohibiting all counselling on abortion, and included within this the provision of non-directive information about the availability of terminations in Britain. The effect of this process was to use the political process to legislate a particular view of morality. However, there were a considerable number of citizens who considered that the decision to keep or terminate a pregnancy should remain within the control of the woman as opposed to the state. Consequently, in Open Door Counselling Ltd, Dublin Well Woman Centre Ltd and others v Ireland, the view that the decision was within the purview of the woman's privacy and self-determination rights was upheld.

Another example on how we deal with moral uncertainty relates to religious conviction. In our relatively sceptical age, questions of religious truth often do not seem as important as many issues that arouse political controversy. But religious liberty is not premised on such scepticism. We would still believe in religious toleration even if we thought - as many do - that questions of religious truth are of surpassing importance, more important than any issue in this world. Yet, such an important issue is left to individual judgement. This analogy disproves the view that morally uncertain issues of life or death or the afterlife cannot be the preserve of the individual and that the state must step in to regulate.

Having shown that it is possible to leave important issues involving moral uncertainty in the hands of an individual, it becomes important to investigate why abortion is the type of an issue that should be resolved at the level of the individual rather than on the level of the state. This is where the status of women becomes important. In cases of true moral uncertainty, an issue should be resolved at the level that minimises the risk that some group of people will be unacceptably subordinated by the decision-makers. That level may be the level of the nation-state; the level of some political unit smaller than the nation-state; the family, for example; or at the level of the individual. In our society, at least, a decision about abortion at any level other than the level of the individual would present an unacceptable risk of subordinating women and have the effect of stifling their voice. It is morally certain that denying women their rights to choice, to autonomy is wrong and this position should not be overridden by claims that are morally uncertain, such as the foetus's entitlement to rights, and in particular, of the right to life.

In summing up, it is clear that it is possible for one to advocate more protection for human rights for everyone and yet still support women's abortion rights. This position may appear a contradiction if the foetus is granted the same rights as someone who has been born. However, the moral uncertainty surrounding the issue of the foetus's personhood entails that such a claim cannot be objectively defended. Consequently, allowing the exercise of abortion rights does not impair the right to life and render all other human right meaningless.

Bibliography

International documents

American Convention on Human Rights, opened for signature Nov. 22, 1969, art. 4(1), 36 O.A.S./SER. K/XVI/1.1, 9 I.L.M. 101, 102 (entered into force July 18, 1978).

Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221 (entered into force on Sept. 3, 1953)

Convention of the Rights of the Child, pmbl., G.A. Res. 44/25, U.N. GAOR, 44th Sess., 41st plen. mtg., Annex, U.N. Doc. A/44/25 (1989) (entered into force Sept. 2, 1990)

Declaration of the Rights of the Child, pmbl., G.A. Res. 1386, U.N. GAOR, 14th Sess., Supp. No. 16, at 19-20, U.N. Doc. A/4354, (1959)

Universal Declaration of Human Rights, pmbl., G.A. Res. 217, U.N. GAOR, 3d Sess., pt. 1, at 71, U.N. Doc. A/810 (1948).

Legislation and core documents

Ireland

Constitution of Ireland

USA

Unborn Victims of Violence Act 2004

Cases

Open Door Counselling Ltd, Dublin Well Woman Centre Ltd and others v Ireland Judgment of the European Court of Human Rights, October 29 1992

X. v. United Kingdom, App. No. 8416/79, 19 Eur. Comm'n H.R. Dec. & Rep. 244 at p 252 (1980) (also known as Paton v. U.K.)

Roe v Wade 410 US 113

Books and articles

Alston, Philip The Unborn Child and Abortion Under the Draft Convention on the Rights of the Child , 12 Hum. Rts. Q . p 156 (1990).

Bigel, Alan I (1991-1992)'The Rehnquist Court on Right to Life: Forecast for the 1990s' 18 Ohio N.U. L. Rev. p 515.

Fawcett, J.E.S. The Application of the European Convention on Human Rights (2d. ed., 1987).

Glendon, Mary A. Abortion and Divorce in Western Law (1987)

Harris, Legal Philosophies, 2nd Edition Butterworths, London)

Kole and Kadetsky, 'The W Murray (1990) 'The nature and rights of the foetus' 35 American Journal of Jurisprudence' p 149 at p 150.

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