Abortion and Autonomy: Legal Right or Moral Wrong?

The Author, Madhav Chaturvedi, is a law graduate from the University of Manchester. He has a keen interest in commercial and corporate law, as well as competition law and white-collar crime.

The principles of Autonomy and the sanctity of human life have been argued and debated more than most topics in relation to medical ethics and the law. This piece will explore the arguments and reasoning of both sides, after which I will display that neither the principle of autonomy nor any argument based on the sanctity of human life is considered more important and morally significant within the law. I will also highlight the misuse of this right, and make known the underlying advantages and disadvantages that arise with an extremely controversial and dividing postulate.

Lord Mustill in Bland stated;  “If the patient is capable of making a decision on whether to permit treatment, his choice must be obeyed even if on any objective view it is contrary to his best interests.^[1]” Autonomy is a fundamental principle of modern legal systems that emphasises individual freedom and self-determination. Medical treatment, education, and even employment are all subject to individual choice. Several legal and medical doctrines are based on autonomy, such as informed consent, patient confidentiality, and the right to refuse medical treatment. So long as the patient understands and accepts the risks and consequences of the decision, is mentally capable of making the decision and is acting without duress or undue influence, the choice of the patient must be respected with regard to treatment or indeed, a lack of it.     

Prior to performing any medical procedure or treatment, healthcare professionals must obtain informed and voluntary consent from patients. Patients’ autonomy is protected by this principle, which allows them to make informed decisions regarding their health care. In contrast, arguments in support of individual autonomy in healthcare are often made based on the sanctity of human life. Those opposed to physician-assisted suicide and euthanasia, for example, argue that these practices violate individual dignity and devalue human life. Many countries, like mine, had previously declared euthanasia a crime until it was scrapped and prohibited practices like these based on the above arguments.^[2] It is one of the reasons why discussions around topics like abortion have become highly volatile to converse amongst an array of people with contrasting values and ideals.

Abortion and Women’s Rights

“Women’s human rights include the rights to equality, dignity, autonomy, information and bodily integrity and respect for private life and the highest attainable standard of health, including sexual and reproductive health, without discrimination; as well as the right to freedom from torture and cruel, inhuman and degrading treatment^[3]”

“The right of a woman or girl to make autonomous decisions about her own body and reproductive functions is at the very core of her fundamental right to equality and privacy, concerning intimate matters of physical and psychological integrity.^[4]”

“The decision as to whether to continue a pregnancy or terminate it, is fundamentally and primarily the woman’s decision, as it may shape her whole future personal life as well as family life and has a crucial impact on women’s enjoyment of other human rights. Thus both the CEDA W Committee and the WGDA W determined that the right to safe termination of pregnancy is an equality right for women.^[5]”

“In the current discourse, the necessity of putting women’s human rights at the centre of the policy considerations regarding termination of their pregnancy is obfuscated by the rhetoric and political power behind the argument that there is a symmetrical balance between the rights to life of two entities: the woman and the unborn.^[6]”

However, there exists no such dispute in International Human Rights law. “It was well settled in the 1948 UDHR and upheld in the ICCPR that the human rights accorded under IHRL are accorded to those who have been born.^[7]”

“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.^[8]”

Abortion Act and its Subsequent Fallout

Whichever case is looked at, it is irrefutable that when the Abortion Act was formed in 1967, its purpose was to carry out safe, lawful abortions, and counteract the high mortality rate from unlawful, unhygienic abortions, especially among the poor. “The most commonly used ground for abortion is that continuing the pregnancy poses a greater risk to the woman’s physical or mental health than termination. Abortions carried out, for this reason, are subject to a 24-week time limit.^[9]” This is a far cry from the status quo where abortion has become an entitlement, rather than a right or an act of protection. Abortion was made legal to protect women from dangerous situations, whether it be their bodies or minds, or to terminate a pregnancy where the foetus would have had major disabilities, and the challenges would have been too monumental to overcome. 

“This was the interpretation preferred by Macnaghten J in his summing up to the jury in R v Bourne, a 1939 case in which a distinguished obstetric surgeon, Aleck Bourne, had carried out an abortion on a 14-year-old girl, who was pregnant following a violent rape. Bourne’s defence had been that the operation was not unlawful, because, in his opinion, the continuance of the pregnancy posed a serious risk to the girl’s mental health. In his direction to the jury, Macnaghten J said that it would be possible for an abortion to be carried out lawfully not only where the pregnant woman was in imminent danger of death, but also where the effect of carrying the pregnancy to term might be to ‘make the woman a physical or mental wreck’.^{[10] [11]}”

Women in today’s world demand abortions when they have an unwanted pregnancy. Admittedly, this is one of the reasons it's there. However, a look must also be taken at why they do not want to go through with the pregnancies.

“Towards the restrictive end of the spectrum, it might be argued that abortion is legitimate where the woman’s life is in danger, or when she is pregnant as a result of rape. At the more permissive end, it might be said that abortion should be available upon request, at least during the first few months of pregnancy.^[12]”

Believing the ultimate decision is up to the woman is a good way to provide autonomy to women in these cases. Whilst pro-life people argue that even a zygote is a living organism, “at this stage,(24 weeks) despite the intense efforts made by religious lobbies to portray the zygote as a baby, it still consists of unindividualized cells, from which the embryo as well the placenta will develop.^[13]”

Abortion and Autonomy through a lens of Philosophy and Jurisprudence

“Fortunately, concerning abortion, there is a rich philosophical literature from which to draw. At the risk of drastic oversimplification, three different perspectives are worth identifying: An emphasis on the moral status of the foetus, and in particular upon its personhood, or potential personhood, an emphasis on the physical invasiveness of pregnancy, and the degree of self-sacrifice which would be forced upon a woman who is compelled to continue an unwanted pregnancy and a compromise position in which abortion is permitted, but subject to restrictions which are designed to offer the foetus some protection.^[14]”

A moral concern is raised by abortion opponents when it comes to the foetus itself. According to Finnis, a new individual is born at conception and should be given all the rights of a person at that moment.^[15] The pregnant woman's rights cannot take precedence over the interests of the foetus, even though it may not yet be human. Mary Ann Warren reasserts that the foetus' interests cannot outweigh those of the pregnant woman.^[16]

“The Pregnant Woman’s Right to Self-Determination emphasises the physical invasiveness of carrying a pregnancy to term and argues that restrictions on women’s access to abortion compel them to exercise a wholly unprecedented degree of self-sacrifice.^[17]” “Abortion involves killing the foetus, not simply detaching it, and however burdensome pregnancy and unwanted motherhood might be, Kate Greasley has pointed out that this is not sufficient to justify killing in self-defence.^[18]”

“The main burdens of unwanted pregnancy, serious though they are, are simply not of the sort that ever justifies killing in self-defence. This is brought out even more sharply when considering the fact that born children can pose exactly the same kinds of threats to their parents. But a parent is not taken to act in legitimate self-defence if she kills her children to live a less encumbered and better life, or because the alternative of having her children adopted entails too much emotional distress.^[19]”

Rosalind Hursthouse furthers the support for life. According to her, “The familiar facts support the view that parenthood in general, and motherhood and childbearing in particular, are intrinsically worthwhile, are among the things that can be correctly thought to be partially constitutive of a flourishing human life. If this is right, then a woman who opts for not being a mother (at all, or again, or now) by opting for abortion may thereby be manifesting a flawed grasp of what her life should be, and be about—a grasp that is childish, or grossly materialistic, or shortsighted, or shallow.^[20]”

There is a possibility for compromise, however. “This scenario acknowledges that the foetus' potential personhood is a good reason to afford it some protection, while at the same time recognizing that the pregnant woman has a legitimate interest in self-determination. This way would protect the woman’s right to terminate her pregnancy, but only in certain circumstances. This is consistent with most countries’ regulation of abortion: abortion is permitted within parameters such as time limits, which indicate the seriousness of foetal destruction.^[21]”

According to Ronald Dworkin, pro-choice and pro-life activists share more than is often thought. In both cases, abortion is viewed as a morally serious matter because it violates the sanctity of human life, but they also do not see the foetus as a person in the same way. Otherwise, abortions would not be justified if the mother's life were at risk or if she was raped when pregnant.^[22]

When autonomy for women is discussed in relation to abortions, it is fair to state that the principal authority is the pregnant woman. However, if the woman is mentally or emotionally incapable of being rational, it brings into question the level of autonomy that can be exercised. Sally Sheldon talks about doctors, and their infallible medical judgement, and argues that “the woman who experiences an unwanted pregnancy, on the other hand, is someone who is fundamentally incapable of taking such an important decision for herself—either because she is downtrodden and driven to desperation (in the language of the reformers) or, for the opponents of reform, because she is selfish and morally immature. ^[23]”

Case Study of Sarah Catt and its conclusion

“On the other side of the debate, the opponents of reform portrayed the woman as selfish, feckless and irresponsible. Jill Knight, a Conservative MP, was one of the leading opponents of reform … She reveals an image of women seeking abortion as selfish, treating babies ‘like bad teeth to be jerked out just because they cause suffering … simply because it may be inconvenient for a year or so to its mother’. She later adds that a ‘mother might want an abortion so that a planned holiday is not postponed or other arrangements interfered with’. The ability and willingness of the woman to make a serious decision regarding abortion, considering all factors and all parties, is dismissed. Rather, she will make a snap decision for her own convenience.^{[24] [25]}”

This is best evidenced in R v Sarah Catt. This is possibly one of the most disturbing cases in terms of abortion. Rarely will an example be found of a right being abused to an extent which almost vindicates the stance of the opposition. “In 2012, Sarah Catt bought abortion pills from an internet site which she took in order to terminate her own pregnancy, shortly before she was due to give birth. She was convicted under section 58 of the Offences Against the Person Act and initially sentenced to eight years in prison. However, the Court of Appeal reduced her sentence to three-and-a-half years.^{[26] [27]}” While she was rightly convicted of her crimes, one wonders whether the sentence awarded upon appeal was perhaps too short.

Perhaps the most important aspect of this predicament is if a woman wants to have an abortion, medical approval must be obtained from not one, but two doctors. “The legality of an abortion rests wholly upon whether two doctors have formed the opinion, in good faith, that the woman’s case fits within the statutory grounds, not upon whether those grounds exist. An abortion would be lawful if the woman’s circumstances did not satisfy the statutory grounds, provided that the two doctors who authorised her termination had acted in good faith.^[28]”

If this is indeed the case, then an argument can be made whether the decision is really up to the woman in case she would like an abortion, and it is the decision of the doctors whether she is allowed to have one. “In Paton v British Pregnancy Advisory Service Trustees, a case in which a man wanted to stop his wife from terminating her pregnancy, Sir George Baker P explained that, under the 1967 Act, it is doctors rather than pregnant women who bear principal responsibility for deciding whether a pregnancy should be terminated:

not only would it be a bold and brave judge … who would seek to interfere with the discretion of doctors acting under the Abortion Act 1967, but I think he would really be a foolish judge who would try to do any such thing, unless, possibly, where there is clear bad faith and an obvious attempt to perpetrate a criminal offence.^{[29] [30]}”

Disagreeing with his narrative, Sally Sheldon rightly argues that “the granting of such power to doctors in the field of abortion is often justified by the argument that abortion is essentially a medical matter. However, the actual decision whether or not a given pregnancy should be terminated is not normally one that requires expert medical advice, or the balancing of medical criteria. Further, the doctors’ decision-making power is not, according to the terms of the Abortion Act, contained within a narrow, limited medical field. In judging whether or not abortion could be detrimental to the mental or physical health of the pregnant woman, under s. 1(2) of the Act, ‘account may be taken of the pregnant woman’s actual or reasonably foreseeable environment’. The woman’s whole lifestyle, her home, finances and relationships are opened up to the doctor’s scrutiny, so that he may judge whether or not the patient is a deserving case for relief. The power given to doctors here far exceeds that which would accrue merely on the basis of a technical expertise.^[31]”

If that is the case, it must be said that this approach isn’t in conjunction with the standards of autonomy that women desire. The basic principles of autonomy inform us that an autonomic society is one where people are free to make their own choices. It goes without saying that that excludes everything illegal and the like. All actions have consequences. However, if people are not free to make their own choices in the first place, they cannot be held fully accountable for their actions. When it comes to abortion, the power that doctors hold over women which by extension gives access to their personal lives is unnecessary, and might leave women in a needlessly vulnerable position.

Pro Life v/s Pro Choice

The Pro-Choice community has begun a narrative that not having an abortion might affect the woman’s mental health, whether it be in the short term or long term. It is argued that having to take care of a child when the woman doesn’t feel ready may have adverse effects on mental health and may jeopardise the future of the mother or the child or both. However, anti-abortion campaigners have cited adverse effects on mental health by having an abortion. They even argue that most women are coerced into abortion.

“In Making Abortion Rare, [David] Reardon is quite clear that empirical research on the psychological consequences of abortion is a useful way of talking about the moral evil of abortion in terms that have authority for audiences not moved by direct appeals to divine authority … [O]f course to make this claim about women’s interest persuasive, Reardon needed some explanation for the large numbers of women seeking abortions … Reardon’s response was to insist that women who have abortions do not in fact want them; they are coerced into the procedure or do not grasp its implications …In Making Abortion Rare, Reardon urged anti abortion politicians to ‘take back the terms “freedom of choice” and “reproductive freedom”’ and ‘emphasise the fact that we are the ones who are really defending the right of women to make an informed choice; we are the ones who are defending the freedom of women to reproduce without fear of being coerced into unwanted abortions’^{[32] [33]}”.

“In practice, there is no evidence that abortion is bad for women’s mental health. The Academy of Medical Royal Colleges’ systematic review of the evidence of the impact of abortion on women’s mental health, found that the most important predictor of emotional and mental wellbeing in women who have terminated unwanted pregnancies is their wellbeing before the abortion took place.“^[34] According to the Royal College of Obstetricians and Gynaecologists (RCOG)’s evidence-based guideline, women who have previous mental health problems may experience further problems as a result of an unwanted pregnancy, whether they terminate it or continue it to term: Women with an unintended pregnancy should be informed that the evidence suggests that they are no more or less likely to suffer adverse psychological sequelae whether they have an abortion or continue with the pregnancy and have the baby.^{[35] [36]}”

“A common claim is that medicalizing abortion in England, Wales, and Scotland has effectively depoliticized it. Both individual abortion decisions and access to abortion rules become more difficult to challenge if the decision to terminate a pregnancy is made by a woman's doctor.

Many unsuccessful attempts have been made to change the law using Private Members' Bills in recent years to decriminalise abortion. Despite the government's opposition to changing the law, the ongoing criminalization of abortion in the rest of the UK becomes more apparent as a result of Northern Ireland's decriminalisation of abortion.^[37]”

It might be a surprise to discover that the principle of autonomy in abortion isn’t as autonomous as is perceived. It is still a criminal offence until proven otherwise, although the need for the approval of multiple doctors is needless and unnecessary. This might portray women who have abortions as vulnerable and fragile. Having said that, cases such as Sarah Catt are more common in reality than we might realise. All that is needed to comprehend this is that the restrictive nature of the law, coupled with either societal pressure or their own ill judgement drives women to desperate lengths they wouldn’t want to go to otherwise. Instead of having an increasing rate of abortions, we must continue to educate men and women alike that abortion is a small step for no one. A solution must be found to decrease the number of unwanted pregnancies, rather than post-coital termination. As for the debate between autonomy and the sanctity of life, neither is superior to the other. With a need for more acceptance in the pro-life camp and a requirement of caution in the pro-choice one, a compromised approach between both is perhaps the best way forward, where a woman can only have an abortion if she can provide a valid reason to not go through with the pregnancy, and subsequently, motherhood.

BIBLIOGRAPHY

1. Airedale Trust v Bland [1993] AC 789
2. Section 309 Indian Penal Code
3. Office of the united nations high commissioner for human rights, October 2017
4. Articles 3, 17,  ICCPR
5. CCPR/C/GC/36, para 10
6. Article 1, Universal Declaration of Human Rights
7. Emily Jackson, Medical Law (6th edn, OUP 2022) ch 14
8. R v Bourne [1939] 1 KB 697
9. ‘The rights and wrongs of abortion: a reply to Judith Thomson’ (1973) 2 Philosophy and Public Affairs 117–45.
10. ‘On the moral and legal status of abortion’ (1973) 1 The Monist 43–61.
11. Arguments about Abortion: Personhood, Morality and Law (Oxford UP, 2017) 61
12. ‘Virtue Theory and Abortion’ in Daniel Statman (ed), Virtue Ethics (Edinburgh UP, 1997) 227–44
13. Life’s Dominion HarperCollins, 1993)
14. ‘The Abortion Act 1967: A Critical Perspective’ in Ellie Lee (ed), Abortion Law and Politics Today (Macmillan, 1998) 43–58.
15. R v Sarah Louise Catt, 17 September 2012
16. Paton v British Pregnancy Advisory Service Trustees: QBD 1979
17. Beyond Control: Medical Power and Abortion Law (Pluto, 1997)
18. Reardon DC, Making Abortion Rare: A Healing Strategy for a Divided Nation (Acorn Books 1996)
19. ‘Dignity and the Politics of Protection: Abortion Restrictions under Casey/Carhart’ (2008) 117 Yale Law Journal 1694.
20.  Academy of Medical Royal Colleges, Induced Abortion and Mental Health: A Systematic Review of the Evidence (AoMRC, 2011)
21. The Care of Women Requesting Induced Abortion: Evidence-Based Clinical Guideline Number 7 (RCOG, 2011)