Blog de Borja Fdez. Burgueño

Blog especializado en derecho administrativo, derechos humanos, asilo y protección internacional.

To what extent the criminalisation abortion would be justified?

Abortion is a controversial ethical and social issue throughout the world[1]. Indeed, legal regulations vary from criminalisation to free access to the termination of pregnancy[2]. Abortion is perhaps the most divisive moral question nowadays[3]. A large number of academic articles can be found supporting both pro[4] and against[5] arguments. This essay will support the non-criminalisation of the voluntary termination of pregnancy. This paper will challenge the five main arguments which support the criminalisation of abortion: (1) by criminalising abortion, the incidence of pregnancy termination decreases; (2) foetus’ inherent worth should morally preclude women from having an abortion; (3) women should not have the right to the voluntary termination of a pregnancy; (4) abortion should be criminalised in order to protect community moral values and (5) a general criminalisation of abortion would be in accordance with the current European legal  system.

It is argued that by criminalising abortion the rates of voluntary termination of pregnancy would decrease[6]. Nonetheless, it has been proved that abortion rates tend to remain the same[7]. Indeed, nowadays abortion rates in regions where it is illegal are very similar to those where it is legal[8]. The only difference between them is the women´s safety and wellbeing when having an abortion[9]. Therefore, on the basis of women’s health and safety, abortion should be decriminalised.

Certain anti-abortion supporters believe that having an abortion is similar to committing a crime, because they consider the foetus as an individual with an inherent intrinsic value[10]. However, Barroso argues that the “foetus does not have any degree of self-consciousness”[11], therefore the intrinsic value of the foetus should not be that readily assumed[12]. Moreover, he argues that, insofar as the foetus depends on the pregnant woman, the interest of the woman should always prevail[13]. Otherwise, if the interest of the foetus had priority, the woman would be treated as an intrument[14] and she would be considered as a means to another end (the end being procreation) rather than as an end in herself[15].

One could argue that since the foetus and the pregnant woman are arguably two different individuals, women should not have the right to terminate pregnancy. Nevertheless, it is within the fundamental freedoms of women to autonomously decide whether they want to be pregnant or not. Therefore, if women were forced to give birth against their will, the most important feature of their autonomy would be challenged. All individuals should be able to freely make their own decision regarding their personal lives and, certainly, reproductive rights should be included among those fundamental choices[16]

Although the main religious groups oppose abortion on the basis of their faith and principles and so do certain political parties and other groups of society, there is no societal consensus whatsoever on the abortion issue. In such cases, as Barroso claims, “the state must value individual autonomy, not legal moralism”[17]. In other words, the state should permit individuals to make their own free choices based on their personal moral values rather than positioning itself in the debate and, consequently, imposing the view of one part of the population upon the rest[18]. Furthermore, while decriminalisation does not prevent those who oppose abortion from acting according to their moral values, criminalisation does preclude women from choosing to have an abortion. Thus, abortion should not be criminalised on the basis of community values.

From a legal standpoint, although a general criminalisation of abortion can be lawful in certain societies, it would be in contravention with the current European legal system. In the case Vo v France[19] it was held by the European Court of Human Rights that if the right to life[20], which is considered absolute[21], were also to enshrine the protection of the life of the foetus, abortion would be seen as prohibited in all circumstances, even if the pregnancy threatens the life of the pregnant woman[22].  Hence, the worth of the foetus’ life would be higher than the life of the woman[23]. The highest European institution of protection of Human Rights argued that it was neither possible nor desirable to hold that abortion should be criminalised[24]. Therefore, notwithstanding the abortion legal status elsewhere[25], a general criminalisation of abortion would have no legal basis at a European level.

Despite all arguments raised by the supporters of the criminalisation of the voluntary termination of pregnancy, the counter arguments outweigh them. The criminalisation of abortion does not have a clear impact on the number of abortion incidence. However it has a direct negative effect on women health. Moreover, if women are not allowed to have an abortion they would be treated as a mere instrument of procreation and therefore their free will and autonomy would be challenged. Furthermore, insofar as there is no societal consensus on the matter, states should not impose their view by criminalising it. Indeed, a general criminalisation of abortion would be in flagrant contravention with the European Court of Human Rights case law. Therefore, this essay concludes by stating that voluntary termination of pregnancy should not be criminalised.

[1] S C May, ‘Principled Compromise and the Abortion Controversy‘ in Alan Patten (eds), Philosophy & Public Affairs (4th, Blackwell Publishing, USA 2005).

[2] Quoted in L R Barroso, ‘Here, there, and everywhere: human dignity in contemporary law and in the transnational discourse ‘ [2012] Boston College International & Comparative Law Review 331, 380 (as cited in S A Cohern, New data on abortion incidence, safety illuminate key aspects of worldwide abortion debate, Guttmacher Pol’y rev Fall 2007, at 2. 3-4)

[3] E.g. L R Barroso, ‘Here, there, and everywhere: human dignity in contemporary law and in the transnational discourse ‘ [2012] Boston College International & Comparative Law Review 331, 389

[4] E.g. D Marquis, Why abortion is immoral (Journal of Philosophy Vol 86 April 1989) 183, 202; National Rights to life educational Trust Fund, Why legalized abortion is not good for women’s health  (MCCL United States of America 2011)

[5] International Campaign for Women’s Right to Safe Abortion, Abortion in the criminal law: exposing the role of health professionals, the police, the courts and imprisonment internationally (International Consortium for Medical Abortion, Chisinau, Moldova); L R Barroso, ‘Here, there, and everywhere: human dignity in contemporary law and in the transnational discourse ‘ [2012] Boston College International & Comparative Law Review;

[6] National Rights to life educational Trust Fund, Why legalized abortion is not good for women’s health  (MCCL United States of America 2011)3

[7] Draft Report on Sexual and Reproductive Health and Rights (2013/2040(INI)) (EC) Committee on Women’s Rights and Gender Equality Rapporteur: Edited Estrela Committee on Women’s Rights and Gender Equality [2013] OJ L2013/2040(INI)

[8] United Nations Department of Economic and Social Affairs, ‘World Abortion Policies 2013’ (UN2013); L R Barroso, ‘Here, there, and everywhere: human dignity in contemporary law and in the transnational discourse ‘ [2012] Boston College International & Comparative Law Review 331, 381

[9] ibid

[10] K Crome,‘Is Peter Singer’s Utilitarian Argument about Abortion Tenable?‘ [2008] Richmond Journal of Philosophy 17 1, 9

[11] L R Barroso, ‘Here, there, and everywhere: human dignity in contemporary law and in the transnational discourse ‘ [2012] Boston College International & Comparative Law Review 331, 383

[12] ibid

[13] Ibid 384

[14] ibid

[15] I Kant, Grounding for the Metaphysics of Morals (3rd ed. Hackett. translated by James W. Ellington [1785] 1993)30

[16] L R Barroso, ‘Here, there, and everywhere: human dignity in contemporary law and in the transnational discourse ‘ [2012] Boston College International & Comparative Law Review 331, 383

[17] ibid 384

[18] ibid

[19] Vo v France, (App.  53924/00), 8 July 2004 [GC], (2005) 40 ECHR 2004-VIII

[20] Article 2 European Convention for the Protection of Human Rights and Fundamental Freedoms provides: “Everyone’s right to life shall be protected by law. No one shall be deprived of his life…”

[21] C Ovey, RCA White, Jacobs, White & Ovey: The European Convention on Human Rights (Oxford University Press 2010) 9

[22] Vo v France, (App.  53924/00), 8 July 2004 [GC], (2005) 40 ECHR 2004-VIII

[23] C Ovey, RCA White, Jacobs, White & Ovey: The European Convention on Human Rights (Oxford University Press 2010) 614

[24] Vo v France, (App.  53924/00), 8 July 2004 [GC], (2005) 40 ECHR 2004-VIII; The same approach has been taken in other ECtHR cases such as in X v United Kigdom or H v Norway [X v United Kigdom, Decision of 13 May 1980, (1980) 19 DR 244; H v Norway, Decision of 19 May 1992, (1992) 73 DR 155]

[25] United Nations Department of Economic and Social Affairs, ‘World Abortion Policies 2013

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Esta entrada fue publicada el marzo 13, 2014 por en Derecho, Derechos Humanos.
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