The Abortion Debate

Background There has been much heated debate over the issue of abortion. One common error being made by the proponents of abortion-on-demand is their argument that the opposition to abortions stems from religious influence on the individual; however, many of those who are of the opinion that abortion-on-demand is murder are atheists. The writer is acquainted with four of them. The issue is not as clear cut as either side wants it to appear. We do not live in a “perfect” world, so what is deemed right or wrong is most often subjective; it varies from one culture to another and even from individual to individual. How does one determine what is “normal” “expected” or “acceptable” for an imperfect person or in an imperfect society? In fact a lot of what is “normal”, “expected” or “acceptable” for an imperfect society or individual would not be normal, expected or acceptable for a perfect one. Also, just because it may be argued that something is moral, that does not automatically mean that it should be legal. For instance, there are numerous, very persuasive arguments for allowing active euthanasia, but it is still almost universally agreed that it should remain illegal. Also, what is legal is not necessarily moral. In the Nuremburg Trials it was recognized that “natural law” supersedes written statute; in accordance with that, it is recognized that humans exercise distinctive virtues that cannot, (or should not) be subject to law. There are certain things that are viewed as absolute wrongs; not subject to culture, individual opinions, personal characteristics or psychological makeup. The one intimately involved in the issue of abortions-on-demand is: Murder is an absolute wrong. No one, without just cause may kill or cause the death of any person. Some prefer to say, “any human”. So, the main issue is: if what is killed is not a person can it ever be murder? Should the two be equated? Does every human individual have a right to life or must the human be a person to possess that right? Currently, under Jamaican law the unborn is granted the same rights as a person regardless of the state of development. The unborn may inherit property; they may sue for damages for injuries suffered while inside their mothers. A wrongful death charge may be made on their behalf. (From several decided cases in English Law going as far back as the 18th century) The Laws Abortion is prohibited in Jamaica’s Offences Against the Person Act. Section 72 of the Act states: “Every woman, being with child, who with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent; and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her, or cause to be taken by her, any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and, being convicted thereof, shall be liable to be imprisoned for life, with or without hard labour.” Section 73 says: “Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanour, and, being convicted thereof, shall be liable to be imprisoned for a term not exceeding three years, with or without hard labour.” Under the Registration (Births and Deaths) Act, the provisions of sections 13, 14, 16, 41, 42, 43, 44, 46, 53, 64, 65 and 66 which all relate to live births are applied under Section31 which regulates the procedure for still births. A still born or aborted child is treated as a person who has died. Ratified Treaties Jamaica has ratified four international treaties that impose an obligation to protect the right to life. The two most recent are the Inter-American Convention on Human Rights and the Convention on the Rights of the Child, which set out at what point the right to life begins for the purposes of protection under international law; that is, from the moment of conception, generally. It has therefore been argued that far from requiring legalisation of abortion, our international obligations actually require Jamaica to protect the right to life from the moment of conception, in general. The "in general" is typically accepted as indicating that abortion laws should either be prohibitory or at the very least restrictive in the sense of only allowing abortions in exceptional and extenuating circumstances, such as where, without the abortion, the mother will die. (Myers Fletcher & Gordon News Letter, The Abortion Debate, Alexis Robinson © 2012) Arguments for Abortion Let us first examine the arguments of the proponents of abortion-on-demand. Jamaican parents were taking the easy way out by abandoning their children because they are unable to take care of them. (Lisa Hannah, RJR News, Wed June 19, 2013) Women do not currently have full rights of self determination. They must be granted the right to determine what happens to their bodies. They must be permitted to chose or refuse any medical treatment even if it risks or results in the death of her developing child. According to a 2005 US study (Freakonomics by Levitt and Dubner), mathematically there is a reduction in crime in those states which had legalized abortion as a result of the Supreme Court decision of Roe v Wade. The states with the highest abortion rates in the 1970s experienced the greatest crime reduction in the 1990s, while the converse was proven for low abortion states. (Lisa Hannah, RJR News, Wed June 19, 2013) Statistics Pregnancies occurring each year: Estimated 205 Million worldwide Spontaneous abortions yearly 146 million Elective legal and illegal abortions: 41.6 million (stable since 2003). Half of these are illegal and unsafe. World population to date: 7 Billion and counting. Jamaican Population: 2,889,187 (last census). Popolar opinion: 67% of Jamaicans polled opposed to abortion (2010) Of the 41.6 million elective abortions, about 20 million are clandestine, unsafe abortions that result in 70,000 mothers’ deaths and over 5 million hospitalizations each year. The Rationale 1. Abortion being illegal does not stop abortions, so effectively, the unborn are not being protected. It only makes the desperate women seek clandestine practitioners, putting their lives at great risk. The lesser of the two evils would then be to try to try to reduce the risk to the woman’s life. 2. The woman is being denied the right to self determination which should include what does and does not happen to her body including medical treatment even if the treatment or refusal to allow the treatment will or may cause the death of her unborn child.. (Ironically, the precedent used in Roe v Wade in the U.S. Supreme Court was a case in which both the doctors and the patient were opposed to abortion.) 3. In many families, societies and religious groups the woman is vilified if she becomes pregnant while unmarried. Her education is also interrupted, thus worsening her economic prospects and her ability to care for the child. Sometimes the woman is in an abusive relationship or she was raped. Sometimes the pregnancy is from an incestuous relationship. Or, what if it is discovered that the baby will have a severe congenital defect? All contraceptive methods have a failure rate, so the woman can still become pregnant even though she uses contraceptives. She should have the option to exercise her right to self-determination in such circumstances. 4. The unborn are not really persons, so no person is killed if one dies. The mother should be the one to decide if she wishes to allow “the parasite” to continue to remain in her body. Counter Arguments 1. This only amounts to using a wrong to correct a wrong. Other viable options should be made available, such as making it easier for her to give up the child for adoption. That would amount to an attempt to save both lives. 2. It would mean that the child’s rights are being denied. The rights of the child imposes a duty on the parents; not the other way around. 3. In the overwhelming majority of cases, these are not the reasons for seeking an abortion. Usually, the pregnancy is an inconvenience to be dispensed with. Abuse, rape or incest does not carry the death penalty, yet the innocent party would be executed in such circumstances. Nobody can be absolutely sure of the quality of life of a defective baby. There are numerous cases where the defect or its effects on the quality of life was not as severe as expected (better to err on the side of caution). Failure of the contraceptive is insufficient justification for killing the child. 4. It is true that the zygote (fertilized egg) or the blastocyst (next stage) are not persons because each sometimes splits and becomes two or more persons, or two or more sometimes fuse and become one person, however, as all experts agree, it is extremely difficult to determine exactly when one becomes a person. Either the determining factors make animals persons or newborns are not persons (Michael Tooley, A Companion to Bioethetics Personhood). Better to err on the side of caution. Conclusion To recap: We do not live in a “perfect” world. Determining what is “normal”, “expected” or “acceptable” for an imperfect person or in an imperfect society is often extremely difficult; sometimes impossible. Also there are innumerable situations to be resolved in which there are no possible decisions or resolutions that are just or fair to all the parties involved. The issue of whether or not to the society should allow abortions-on-demand involves situations where very often one party must be deprived of human rights. To allow abortion-on-demand, the unborn must be deprived of human rights. One solution often proffered is that being human does not necessarily equate to being a person. (Michael Tooley, Personhood) Since it is difficult to determine exactly when a human is a person, arbitrary determinations are made. In the U.S. “viability” is the determining point. (Roe v Wade) The problem is that individuals who are not persons have no rights to life and nobody owes them a duty of care beyond the duty of care one has to the property of another person. If one dies nobody can be charged for murder and if one is injured, nobody can act as an agent or attorney to sue in his/her name for damages or make a wrongful death charge. No non-person may inherit property. Denying the unborn human rights is unacceptable to almost all parents. Currently, Jamaican law grants the rights to the child while “en ventre sa mere”. (“in the mother’s belly”) The argument used by abortionists is that this really is not recognition of the unborn as a person before birth, but is just for the purpose of granting the rights after birth. This however contradicts the notion that criminal charges or negligence suits for injury or wrongful death charge are possible. The unborn must be a person at the time of death for any of those to be possible. If the unborn are recognized as or granted the same rights as persons, then everyone owes them a duty of care That duty rests heavily on the parents, and is most onerous on the mother. She must not do or neglect to do anything that will endanger the child. She has a duty to ensure the care, health and survival of her child regardless of the consequences to her unless the pregnancy poses a clear and higher than normal risk to her. One other related situation is where the medical treatment is refused because it violates the mother’s conscience. Unwanted pregnancies occur because we are all imperfect and live in an imperfect world. Married couples and women who were not forced into sexual intercourse have unwanted pregnancies. In the overwhelming majority of the cases in Jamaica, the woman was not forced to engage in sexual intercourse and failure of the contraceptive was not the cause; the couples were simply overcome with emotion and gave in to the impulse. Our imperfection also results in women trapped in abusive relationships, rapes, incest, birth defects, unequal opportunities, economic and other hardships, broken relationships, absentee fathers or mothers, serial monogamists as well as multi-partner relationships. There are way too many bad situations to list them all. What do you do about rape? The pregnancy and then the child will be a constant reminder of the trauma. The normal or expected relationship between mother and child will most likely never occur. The prospect is a child being raised in a hostile environment. When the victim is a child, there is the unwarranted stigma: “Kayless gyal”. Her education is interrupted and she likely will end up being heavily dependent on others. Her prospect for any improvement is dismal. What about serious congenital defects? Hydrocephaly (water on the brain) or ancephaly, (no or almost no brain), a rubella (German Measels) infection, spina bifida (spinal cord not properly closed) or any of the host of other conditions that will result in the child being totally dependent all his or her life or being in constant pain. These are merely a part of the issues faced when considering whether or not to allow abortions. Do we treat it on a case-by-case basis? That theoretically is what is done in some countries, but that can be cumbersome. In Britain, for instance the doctors can assist by simply giving professional opinion why a request for an abortion should be granted. In the final analysis however, the granting of unrestricted access to abortion will require that the law either contradicts itself or tramples on the rights of the unborn. It can be argued that currently the law often results in situations where the mother’s rights are trampled on. There is no “good” solution to the problem. If we allow the restrictions to remain, illegal abortions and the terrible consequences will continue or we can allow the wanton killing of the most defenseless group in our society to become legal. Regardless of which decision is made, I firmly believe that the CDA urgently needs to make adoptions easier. Many (if not most) of those mothers would give up the child for adoption if they are readily permitted. Many change their minds after the abortion, mourn their children and are now living with troubled consciences. One close friend was still mourning and troubled 50 years later!