Unlawful Abortion

by D.G. Boland © 1997

Abortion is a moral issue. But, as the criminal law is based in morality, it is also an issue for the law of a State. They are two separate issues, however, because the law of any society is not able to cover all human conduct, but only that which impinges on others and which is enforceable without doing more harm than good.

In the State of New South Wales abortion is proscribed by Sections 82 and 83 of the Crimes Act, 1900. Should the legal issue not deal satisfactorily with the matter, one would need to appeal to the higher moral law. However, the writer, a lawyer and philosopher, argues that the criminal law of NSW, contrary to what many are led to believe, does reflect the moral condemnation. Therefore, for us in NSW it is first of all necessary to remind those in favour of abortion on demand that such conduct is strictly illegal. In a later issue, the writer will address the arguments for and against abortion from a strictly moral perspective.

The following is part of an essay on the legality of procured abortion. Dr. Boland considers the rights of all involved in what is a matter of life and death.

We need, therefore, to separate these issues. First, we need to address the argument that there is no moral objection to the destruction of the foetus in any case; or at least none in certain cases or circumstances, as eg before a certain stage of its development. This is a strictly moral argument. Second, we must consider the argument that, though from a strictly moral viewpoint the practice is wrong (i.e. morally unlawful), it is not a matter that the law can or should concern itself with; or, if so, only in a limited way. Let us call this the political argument, which is a perfectly legitimate one, if applicable. The most familiar example of the application of this argument is to prostitution, and other kinds of sexual misbehaviour. It is applied also in other areas, as in the world of commercial dealings, where not every kind of dishonesty can be usefully proscribed. (Interestingly enough, in recent times whilst in the area of sexual misbehaviour we have moved from a legislative regime of perhaps over-zealous prohibitionism to that of an almost complete permissiveness; in the area of economic misbehaviour the law is moving in the reverse direction; changes in "community standards" have obviously a lot to do with this).

The moral issue is the most fundamental of all. For, regardless of what the law may permit, prescribe or proscribe, one is always bound to act in accordance with one's conscience (the law generally recognises this). There may be still some legal philosophers of the old positivist school who would want to argue that the law is not so subject to morality; but the horrendous violations of basic human rights in this century (in many cases sought to be justified as following "superior orders" within a recognised system of government) have convinced most that there are limits to a humanly based authority (be it autocratic or democratic).

The ambit of morality is clearly not co-extensive with law. On the one hand, the law controls much human social activity (which of itself is morally neutral) by virtue of its own force, and, on the other, chooses not to proscribe and punish certain behaviour which is acknowledged to be contrary to moral laws. Nonetheless, the law, particularly the criminal law, in that area of individual human behaviour which has the most serious impact upon others, is quite evidently only proscribing in the external forum what is already forbidden in the internal. What is more, the criminal law, as with morality, is more concerned with the guilty intent (mens rea) than with the wrongful act (actus reus), even if, without the accused's confession, such intent can only be established indirectly through the actions of the accused. Indeed, as we have seen, the law is careful to qualify its proscriptions by such words as "unlawfully", generally to ensure that only those of a guilty mind are targeted.

The morality (or immorality) of abortion is very much a matter which needs to be discussed, not only for its own sake, but also to ascertain whether it is the sort of human behaviour which the law can or should choose not to legislate about. That abortion (subject to the presence of such lawful excuses as are generally available in respect of all actions otherwise unlawful) is an immoral, or more specifically, an unjust practice will, I believe, be clear from the following arguments.

The first argument proceeds from the premise that the foetus is properly to be considered to be human from the moment of conception, not from the time of birth. Once granted that the foetus is such, it immediately follows that the killing of the foetus (or foeticide) is homicide which, provided the killer intends harm to the victim, or the act is done with "reckless indifference" to life, is morally culpable.

Some in recent years have tried to make a distinction between being human and being a person, so that they can concede that the foetus is something human but its destruction not blameworthy because it is not yet a person, which they seem to define in terms of the present ability to exercise rational thought and behaviour. Apart from the fact that this would justify infanticide up to the child's use of reason, it is a most crass attempt to make a distinction without a difference. Most living beings go through a process of growth before they have full use of their faculties. No one would suggest that a kangaroo was something other than a full grown joey. Similarly, a human being with the use of reason (a person according to this artificial definition) is not fundamentally different from a human being prior to the first use of his or her faculties. It is fairly clear that this distinction has been resorted to because of the difficulty, given the modern means of close inspection of the living foetus, of denying that it begins to manifest human features and characteristics at a very early stage.

The real crux of this argument, therefore, comes down to proving that the foetus is human. This, of course, is something which can only be judged from external appearances. It is a scientific question in that the means of observation available require a scientific expertise. It is in only relatively recent times that such observation of the living foetus has become possible. Such observation, however, has established that the foetus produced by human insemination manifests characteristics belonging to humans right back to its first days of existence. This is hardly surprising in view of its invariable subsequent growth, barring accidents, into a fully developed human being.

Though the question is thus subject to scientific evidence, we should not be misled into thinking that it is therefore a purely theoretical question. There may remain problems of determining with scientific certitude precisely when independent individual life begins for the new human being. But science is only used to extend our range of observation, as an aid to our moral judgement. The moral argument needs only to be satisfied (as in all other cases) with practical or moral certainty, and for all practical purposes we can now safely say that human life is present from the moment of conception.

Thus the conclusion of our first argument is that foeticide at any stage of the life of the foetus is homicide, and given the usual conditions applying, is unjustifiable homicide or, morally considered, murder - a violation of the commandment "Do not kill."

The second argument depends on the necessity for moral certitude in all our practical judgements, including the situation where we are not certain as to the humanity or otherwise of the foetus. For, at least where the matter is serious, it is morally wrong to act when in doubt as to the effect of one's actions on another's' rights or welfare. One is obliged to resolve the doubt before acting, or refrain from acting. This principle is also reflected in the criminal law's treatment of murder, which includes in the definition of "malicious" something done "with reckless indifference" to human life. The plea: "I didn't think it was a man" will not succeed if you should have checked it wasn't before firing to kill. Where the life of another human being is possibly at risk one has a grave obligation to act only with moral certitude.

Now, from what has been said before, if one is not convinced that the foetus is human (in the early stages at least) it is clear that one would have to suspect that it may be, or that one cannot be certain that it is not. To "terminate" the life of the foetus, when one is in such a state of mind, is tantamount to being prepared to take the chance that one is killing another human being. No amount of euphemistic language, such as referring to the abortion as the termination of the woman's pregnancy (which happens anyway when the child is born), can obscure the fact that this chance is being deliberately taken.

Thus, in moral terms, the conclusion of the second argument comes round to the same result as the first. Hence, given the facts as outlined above, regardless of whether one is (morally) sure that the foetus is (yet) human or not, it is unlawful to kill it.

There remains, nonetheless, the question whether, regardless of the immorality or injustice of the behaviour, the law ought to proscribe and punish it. This issue, I would submit, is the one most are addressing in the debate about abortion, but it becomes confused with the legal and moral issues discussed above. For it is here that there is room for differences of opinion, inasmuch as there is no fixed rule, the issue having to be determined by the particular circumstances of a particular community. It is ultimately a matter of political prudence.

For it does not automatically follow that, because a particular mode of behaviour or social practice is immoral, or even unjust, there ought to be a law against it. We have cited the cases of sexual and economic misbehaviour above. The law is not able, nor is it productive for it to try, to control every possible deviation from the moral norm. Such supervision would be excessively oppressive to the law-abiding citizen who, for the most part, is quite able to protect his or her own interests in such matters.

Economic injustice and sexual immorality, then, are two areas where, depending on the community, much is treated as "lawful", without for that being condoned. Of late, some have endeavoured to argue that abortion should be treated on the same basis. After all, is it not a matter which concerns the pregnant woman only? Why cannot the matter be left to her to decide how she deals with something within her own body, even supposing we disapprove of her actions?

Let us, then, look at this issue a little more closely. What are the criteria applicable to this question? The law, being ordered to the good of society as a whole, is not overly concerned with wrongful actions which do not affect persons other than the malefactor. What injury one does to oneself is thus not of primary concern to the legislator, though to conceive of individuals as atoms, as it were, existing totally independently of one another, as does Individualism, is plainly wrong. However, so far as political liberty is concerned, for the sake of the argument let us suppose, with J.S. Mill, that "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others...". In this regard as well there is the well established legal maxim: "Volenti non fit injuria" ("No injury is done to one consenting"). Let us suppose that it has some application, though it is generally proposed in the context of civil actions, not of criminal.

Different societies, however, interpret these politico-legal principles differently. To what extent individual actions are considered to have social consequences may depend on the degree of solidarity within a particular society. Take suicide, for instance, which today the law regards as a matter for the individual concerned, and no longer treats as a crime. In former times, however, it was so treated, presumably because it was looked upon as doing injury not only to the individual concerned but also to the society in which he or she lived. Certainly one could argue that an individual's suicide does do harm to others besides the suicide himself or herself. On the other hand, prostitution and self-intoxication (with their attendant anti-social evils) are classic cases of little being achieved by total prohibition. One has to consider as well the disrespect into which the law is brought by ineffective proscriptions.

The question of consent is not as straightforward as it might look. At what age, or under what conditions, do we regard someone as capable of consenting to injury to himself or herself? Even if consent is given, should some injuries be considered too serious, or some actions too offensive to human nature, to allow the perpetrators to get away with them? Such matters are evidently questions of degree and social circumstance which different legislators will determine differently?

Then again, even if we have adjudged that the rights of others are being violated against their wills, is it a matter where "the arm of the law" cannot or should not reach? Is it a case where little good or even harm can only result from the law's intervention?

How, then, do we apply these criteria to the question of abortion? With regard to whether anyone other than the mother is affected the answer is clear from what has been established above. The whole point of the moral argument was that the interests and rights of another human being or person are being ignored and violated. The legal proscription, too, can only be interpreted as designed to protect these interests and rights. The argument that it is entirely a matter for the woman, and therefore the intervention of the law is an interference with her freedom of choice or privacy, fails for this reason. Consent, too, obviously, is ruled out.

But what about the argument that, despite the fact that the foetus' rights and interests need to be respected and protected, this is not a proper case for the law to intervene. The parents of a child, for instance, have a certain authority over it, which the law respects, and does not generally usurp. Indeed, in former times such authority was virtually absolute (e.g. the "paterfamilias" of Roman law). Is not the law designed to control the relations between adults or citizens? If the child is to be considered as subject to the law only through its parents, surely this applies most of all to the child in the womb. Might not the mother's claim, also, over the welfare of the foetus, be virtually equated with her claim over her own body?

It is to be carefully noted that this argument is explicitly based on the assumption that the child is a human person. Often such appeal to the woman's rights to freedom of choice in respect of her own body is used to argue (a moral case) in favour of abortion itself. But to so argue is to beg the very question at issue. For there the issue is whether the foetus is another human being or not. If it is, the woman's freedom of choice is plainly not only in respect of her own body. Hence, such a mode of arguing assumes the point at issue, namely, that the interests of the child do not count.

Here the issue is whether the child should be left entirely within the power of the mother (including a power of life or death) because the law cannot or should not reach into her womb, so to speak. Superficially, it would seem to be a fairly strong argument. But, once it is conceded that the lives of other human beings are at stake, there is really no way the law, under modern social conditions, could properly allow their indiscriminate killing. We have come a long way since societies treated some humans as of lesser value than others, either because of their assumed inferiority (slaves), sex (women), age (children), physical or intellectual disability or other quite incidental difference. To so discriminate is now universally recognised as a subtle form of racism. Consequently, the law, at least in the most civilised communities, has not hesitated to intervene in defence of the weak and defenceless where those immediately placed over them have failed to protect their interests or have violated their rights.

Someone has justly remarked that what slavery was to the nineteenth century abortion is to our own times.1 Like many another unjust form of discrimination we have allowed that against the unborn to continue for too long. When a system of injustice is in place people will exploit it for their own selfish ends, be these economic profit or sexual freedom. And, despite our abhorrence of the practice, the rest of us will generally stand by, feeling impotent to do anything about it. But once it is universally outlawed, we all suddenly recognise how evil it is and condemn the society which could countenance and condone such a practice.

The political argument against outlawing abortion or foeticide (subject to the lawful excuses available generally in relation to homicide) fails, then, on all counts. Those who endeavour to argue it are wanting us to concede to the woman with child the sort of privilege and power over their dependents claimed by the ancient "paterfamilias" and the modern slave-owner. Abortion is truly an abominable crime (Latin "ab homine" = "alien to humanity") and one which cries out to heaven for vengeance.

Don Boland © 1997


1. Paul Johnson, in The Spectator, 17 August 1996; quoted in the Newsletter of the Cardinal Newman Catechist Centre (Sydney) of 1 November 1996.


Don Boland is a lecturer at the Centre for Thomistic Studies, in Sydney, Australia.

This article posted February 1998. It was published in Universitas, Vol 1 (1997), No. 1.
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