Reproductive autonomy and the ethics ofabortionBarbara Hewson Littman Chambers, London

AbstractAbortion is one of the most controversial issues intoday’s world. People tend to turn to the law whentrying to decide what is the best possible solution to anunwanted pregnancy. Here the author’s views onabortion are discussed from a lawyer’s and a woman’spoint of view. By taking into consideration the rights ofthe fetus an “antagonistic relationship” between thewoman and her unborn child may occur. Therefore,women should have more autonomy in the issue. Thearticle concludes with examples of cases in the UnitedStates and Ireland where the rights of the fetus areconsidered more important than those of the motherbecause of existing laws. This article suggests that amore inclusive ethics of abortion is required rather thana new ethics of abortion when “translating fetal lifeinto law”.(Journal of Medical Ethics 2001;27 suppl II:ii10–ii14)Keywords: Abortion; autonomy; fetus; drugs; law; 1967Abortion Act

Practising lawyers generally have little time toreflect on matters of ethics. The law is a bluntinstrument. Lawyers are often instructed to act forclients wishing to do things that would strike manypeople as immoral, but which the law entitles themto do. Evicting homeless people from one’sproperty is an example. Lawyers are not expectedor invited to pass moral judgments on their client. Ifthey did, the client would probably go elsewhere!The Bar has a rule of conduct called the “cab-rank”rule. This obliges barristers to accept instructionsregardless of the identity of the client, or the natureof the cause, or the barrister’s own opinions aboutthe client’s conduct. Judges, likewise, must decidedisputes according to law; their function is not topass moral judgments on litigants. The reflectionsthat follow, therefore, do not pretend to constitutesome systematic overview but rather, some per-sonal thoughts and ideas which may prompt furtherdiscussion.

So what can a barrister say on the ethics of abor-tion? Is a new ethics developing? Should there beone? These are interesting and important ques-tions. As a lawyer with a commitment to autonomy,I see abortion as an issue that overwhelmingly con-cerns the autonomy and dignity of the pregnantwoman herself. “Autonomy” derives from theGreek and means, literally, “self rule”. If a womanwho is pregnant wishes to stop being pregnant, why

should we prevent her? If we regard her pregnancyas a morally neutral state, there ought to be no sat-isfactory reason to prevent her. The way thathumans reproduce, in common with other mam-mals, is simply a product of evolution. Biologically,the developing fetus is somewhat like an invadingorganism; if it were not for a complex system ofcompensating mechanisms, the woman’s bodywould reject it in the same way as the body rejects atransplanted organ.

Attitudes to pregnancy are, however, inextricablybound up with how society views sex, women, andthe fertile woman in particular. Pregnancy andbirth are not minor inconveniences, such as havinga cold. They constitute a major life event, whicheven when welcome causes immense discomfortand disruption to many women. Only recently MrsBlair confessed that she had forgotten what anordeal the last few hours of labour are. I have a dearfriend who spent much of her two (planned) preg-nancies being ill and unable to work. There exists araft of laws to protect pregnant employees fromunfair treatment because they are pregnant.Nevertheless, lawyers in the employment field stillencounter cases where employers try to ridthemselves of their pregnant employees. When ahigh-profile court case involving maternity rights isdecided, leaders of industry often complain thatthis will have a chilling eVect on employers’readiness to employ women of child-bearing age. Imention these factors simply to contextualise someof the diYculties that child-bearing women face.

If one is adamantly opposed to abortion, one iscommitted to some set of values which requires thatwomen who become pregnant (whether intention-ally or unintentionally) must endure the process ofpregnancy and birth, no matter how distressing, pain-ful and risky it is for them. The justification given forthis is usually based on an abstract notion of thevalue of “fetal life”, rather than on the ground thatsuVering is morally improving for the women con-cerned. Extreme opponents of abortion argue thatabortion is equivalent to murder and that, no mat-ter how much women may suVer, they cannot beallowed to “kill their children”. But opposition toabortion entails a demand that women suVer,regardless of the circumstances in which they cameto be pregnant, and despite the opportunities forending pregnancy that exist. For those who believethat fetuses are full human beings, the justificationis presumably that the woman’s suVering is a lesser

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evil than terminating fetal life. This raises the ques-tion whether they tolerate the taking of “innocent”human life in other circumstances, for example.NATO’s attack on Kosovo, or careless driving.Since an unwanted fetus is analogous to aninvading organism, even if it is viewed as a humanbeing, an argument can be made that the woman isentitled to refuse to act as a life-support system forit, and to abort in self defence. What about thosewho do not believe that fetuses are full humanbeings, but believe that abortion following consen-sual sexual activity is “wrong”? As the philosopherJanet RadcliVe Richards1 has pointed out, the onlytime when we insist that a particular consequencemust follow a particular activity, and do not allowpeople to escape the consequence, is when the con-sequence is intended as a punishment.2 Apart fromthis punitive aspect of anti-abortion belief, it is alsoobjectionable in ethical terms because it treats thepregnant woman as a means to an end: that of pro-ducing a baby.

Of course, many women will not accept the suf-fering which continuing with pregnancy wouldcause them (or their families), and take stepsaccordingly. In countries where safe abortion isillegal or unavailable, this results in self-imposed or“back-street” abortions and all the ills that flowfrom that: injury, infection, infertility, and evendeath. It is striking that complications from unsafeabortion are estimated to result in 13 per cent ofmaternal deaths worldwide.3 It is hard to see howsuch wastage of female life could be condoned inethical terms. As Ann Furedi has said: “The issue isnot so much whether or when the embryo/fetus isdeserving of respect per se, but how much respectand value we accord to a life (that does not evenknow it is alive) relative to the respect and value wehave for the life of the woman who carries it.”4

If we start from the premise that the promotionof freedom and the prevention of suVering are fun-damental goals which society ought to support,then the prospect of women forced into suVeringeven—death—ought to worry us. Kant says that “aman is not a thing, that is to say, something whichcan be used merely as a means, but must in all hisactions be always considered as an end in himself”.5

Denying women abortion is, on this analysis,unethical because it subordinates women to areproductive end.

The present tendency to characterise questionsabout abortion ethics in terms of concerns aboutfetuses, or even fetal “rights”, tends to sidelinewomen and the realities of women’s lives. Suchsidelining of women is not entirely accidental; it istrite that many “fetal rights” proponents areopposed to the present increase in women’sfreedoms, and want to roll them back. Others whospeak of fetuses as having “rights” assume thatfetuses either have, or should have, rights, withoutnecessarily explaining why this should be so, or whyit should result in another person’s loss ofautonomy.

To put women back centre-stage, we should ask:why do women want abortions? Research has

shown that the most commonly reported reasonworldwide is that women wish to postpone, or stop,childbearing.6 Abortion is a form of familyplanning, though it may not be “politically correct”to say so. What other reasons do women give forwanting abortions, worldwide? They include:

disruption of education or employment;lack of support from father;desire to provide for existing children;poverty, unemployment or inability to aVordsadditional children;relationship problems with husband or part-ner, anda woman’s perception that she is too youngto have a child.

To compel such women to bear unwanted childrenis in my view a form of ethical despotism: in Mill’swords: “compelling each to live as seems good tothe rest”.7 If people are to be free, that freedommust include freedom to make these diYcult andextremely personal choices.

Is the law informed by a consistent set of ethicalprinciples? In England, Scotland, and Wales, abor-tion is permitted by the 1967 Abortion Act(amended by the Human Fertilisation and Embry-ology Act 1990), when two medical practitionersdecide, in good faith, that one of the followinggrounds applies:1. That the pregnancy has not exceeded its 24th

week and that the continuance of the pregnancywould involve risk, greater than if the pregnancywere terminated, of injury to the physical ormental health of the pregnant woman or anyexisting children of her family.

2. That the termination is necessary to preventgrave permanent injury to the physical or men-tal health of the pregnant woman.

3. That the continuance of the pregnancy wouldinvolve risk to the life of the pregnant woman,greater than if the pregnancy were terminated.

4. That there is a substantial risk that if the childwere born it would suVer from such mental orphysical abnormalities as to be seriously handi-capped.

Grounds 1 and 3 call for balancing exercises.Ground 2, which is based on necessity, does not.Ground 4 calls for an assessment of the likelyseverity of fetal handicap.

Doctors may take into account the pregnantwoman’s actual or reasonably foreseeable environ-ment, in assessing the risk of injury to her health.The World Health Organization (WHO) defineshealth as a “state of complete physical, mental andsocial wellbeing that does not consist only in theabsence of infirmity”. According to evidence-basedguideline no 7, issued in March 2000 by the RoyalCollege of Obstetricians and Gynaecologists(RCOG), The Care of Women Requesting InducedAbortion,8 most doctors apply the WHO definitionof “health” in interpreting the Abortion Act.9 TheRCOG’s guideline development group views in-duced abortion as a health care need.10 It also statesthat, among information on other topics whichshould be available to women, “abortion is safer

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than continuing a pregnancy to term and complica-tions are rare”.11

Janet RadcliVe Richards criticises the existinglaw:

“ . . . as things stand at the moment there is no realconcern to estimate the value of the unborn child,or for the degree of suVering which would justify anabortion. All the law does, in eVect, is make surethat a woman may not decide for herself whether tohave an abortion, and send her to someone else inthe position of a suppliant for favours, or even aculprit. It does nothing else ... as the law now standsthere is no reason whatever for stopping where weare, and not going forward to a state where allwomen who want abortions can have them.”12

If having an abortion is safer than carrying a preg-nancy to term, then all pregnant women whowanted a termination below 24 weeks shouldqualify under ground 1 above. So perhaps the law isnot so bad, after all.

In Northern Ireland, however, the 1967 Abor-tion Act does not apply. Doctors there do performabortions on the ground of fetal abnormality. Theycan also perform abortions in cases where thewoman’s mental or physical health or wellbeing, orher life, are at real and serious risk. In this context,“real and serious” mean, simply, “genuine” and“not minor or trivial”. Thus, a woman does nothave to show a life-threatening risk to her health, oreven a “very serious” risk, to qualify for a legalabortion. Ironically, in the absence of any pre-scribed statutory formalities for abortion, NorthernIreland has on the face of it a more liberal abortionregime than the rest of the United Kingdom. Inpractice, though, the reluctance of the medical pro-fession to perform abortions has a chilling eVect.Most women seeking terminations have to travel toEngland or Scotland, at their own expense.

There are irreconcilable conflicts between whatmight be called the fundamentalist approach to theissue of abortion, which sees life as starting at con-ception, and what might be called the scepticalview, by which life begins when we attribute enoughvalue to it to warrant its protection. Under Englishlaw, a fetus is not a “person”. Furthermore, awoman may decline medical intervention thatwould preserve the life of her fetus, and is free to letnature take its course, even where this may causethe death of her fetus. The justification for this is,firstly, that the common law respects the pregnantwoman’s autonomy; and secondly, that the com-mon law does not coerce people into being “GoodSamaritans” and saving others (assuming, for argu-ment’s sake, that the fetus is an “other”). The com-mon law tradition is essentially liberal. Thevice-chancellor, Sir Robert Megarry, put it like thisin 1979: “[England] is a country where everythingis permitted except what is expressly forbidden”.13

If everyone could be compelled by law to do whatothers considered “right”, we should have no free-dom, only moral dictatorship.

The case of St George’s Healthcare NHS Trust vS,14 decided in 1998, was a landmark case involving

reproductive autonomy in another context: that ofthe pregnant woman’s freedom to decline invasivetreatment. The Court of Appeal upheld thecommon law rule that competent adults can refusemedical advice and intervention, despite beingpregnant. Ms S was compulsorily detained underthe Mental Health Act 1983 because she was refus-ing hospitalisation for pre-eclampsia. She was thenforced into an unwanted caesarean, purporting tobe authorised by a court order, which was madewithout any notice to her. She later recovered verysubstantial damages for trespass. The Court ofAppeal stressed the importance of protecting indi-vidual autonomy, regardless of sex:

“while pregnancy increases the personal responsi-bilities of a woman it does not diminish her entitle-ment to decide whether or not to undergo medicaltreatment. . . . Her right is not reduced ordiminished merely because her decision to exerciseit may appear morally repugnant . . .the autonomyof each individual requires continuing protectioneven, perhaps particularly, when the motive forinterfering with it is readily understandable, andindeed to many would appear commendable ... if ithas not already done so, medical science will nodoubt advance to the stage where a very minor pro-cedure undergone by an adult would save the life ofhis or her child, or perhaps the child of a completestranger . . .if however the adult were compelled toagree, or rendered helpless to resist, the principle ofautonomy would be extinguished.”[italics added]

St George’s wanted to appeal to the House of Lordsto ventilate the arguments (among others) that afetus was a “person” and that a pregnant womancould be deprived of her autonomy at the stage offetal viability. These were interesting arguments fora National Health (NHS) trust, which presumablycarries out abortions for fetal abnormality andother reasons, to pursue. If such arguments hadbeen upheld on appeal, they would have hadmomentous implications for abortion law. StGeorge’s was refused leave to appeal by the Courtof Appeal, and initially began proceedings for leaveto appeal in the House of Lords. These were aban-doned before the House of Lords had made a finaldecision on whether to grant leave.

Another interesting feature of the case is that MsS’s detention and forced treatment were promptedby concerns that she was refusing treatment for adisorder of pregnancy, pre-eclampsia. This couldhave killed her and her fetus, had it deterioratedinto full-blown eclampsia. The irony is that Ms Scould have sought a late abortion, on the groundthat the continuation of her pregnancy posed therisk of grave and irreparable injury to her healthand a serious risk to her life (grounds 2 and 3,referred to above). She was not seeking a latetermination, but if she had, her situation wouldhave been covered by the Abortion Act. That shewanted to let nature take its course was certainlyeccentric, but ethically less troubling (if you dislikethe idea of late termination) than if she had soughta late abortion.

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Many people attribute a higher value to fetal lifewhen fetuses reach viability. Thus, some people aretroubled at the idea of, or opposed to, late termina-tions, whilst regarding early terminations as un-problematic or at any rate less problematic. But asJustice Ginsberg of the United State SupremeCourt has recently pointed out: “the most commonmethod of performing previability second trimesterabortions is no less distressing or susceptible togruesome description”.15 In practice, late termina-tions are rare. The majority are done for fetalabnormality in what were otherwise wanted preg-nancies; a minority are done to save the woman’slife, or to prevent grave permanent damage to herhealth.

The question is, again, how to assess when lifebegins, in an ethical sense. Legally, as I have said,the fetus is not a “person”, and does not become arights-bearing entity until it is born. But attempts topin down “viability” as a criterion for abortion runinto the problem that viability depends partly onwhere the fetus happens to be; if it is in an area withexcellent facilities for the care of very prematurebabies, then it may be considered “viable” at anearlier gestational age, than if it were somewhereelse. On any view, this is arbitrary.

In the United States’ constitutional jurispru-dence, access to abortion is a constitutionallyprotected right. Subsequent to fetal viability, thestate may regulate and even prohibit abortion as ameans of promoting its interest in the potentiality ofhuman life. However, a woman remains constitu-tionally entitled to an abortion post-viability, wherethis is necessary to preserve her life or her health.16

Her interests in preserving her own life and healthwill “trump” the state’s interest. It is also worthnoting that fetuses are not recognised as “persons”under the US constitution; if they were, it would bediYcult, if not impossible, to derive any right toabortion under the constitution. Even if a pregnantwoman’s life were at stake, it would be morediYcult to argue that this should justify killing fetal“persons”: our response to people who are danger-ously ill is not to kill other people. (Otherwise, everytime someone needed a life-saving transplant, wecould justify killing someone else to provide theneeded organ). Some form of “self-defence”argument would have to be invoked.

Some people argue that it is arbitrary not tobestow “personhood” on a fetus until it is born.They ask rhetorically: What is it about the passagethrough the vagina that makes such a diVerence? Ofcourse, if you can only envisage a vagina instead ofa woman giving birth, you may have diYcultyacknowledging the critical role that a woman playsin giving birth, and why (in turn) society views birthas the critical moment. This is, as much asanything, a mark of respect for women’s role in giv-ing birth.

Some obstetricians regard pregnant women as“two patients” in the maternity care context. To ablunt lawyer, this is incongruous in the extreme.One wonders, is the fetal “patient” a “person”?Presumably so, because the idea of a patient who is

not a person is bizarre. But in legal terms, as I havesaid earlier, the pregnant woman is only oneperson. Whom do doctors advise? Who takes thetreatment decisions? The woman. Generally, mid-wives and obstetricians talk about “babies” ratherthan fetuses, presumably because that is how thewomen whom they attend regard their fetuses. Butis the fetus really a second patient? If it were such,one might expect doctors would have to open up aseparate file for the fetus, which is not customary(as far as I know) in maternity hospitals. Perhapshaving “two” patients makes an obstetrician a“super-doctor”, which is why the idea has gainedground!

There are conceptual diYculties to do withattributing personhood to an entity which isinvisible, inaccessible, physically contained in andattached to the woman, which entirely lacks capac-ity, and which cannot interact with others at all,prior to birth. In everyday life, such an idea, if givenlegal eVect, would lead to some strange outcomes.Pregnant women might have to purchase two tick-ets every time they used public transport to avoidbeing prosecuted for fetal “fare-dodging”. Moreseriously, if fetuses were “persons”, this would openthe way to lawsuits for alleged wrongdoing by preg-nant women whose conduct allegedly compro-mised fetal wellbeing in some way. In the words ofa 1993 Canadian Royal Commission on NewReproductive Technologies (cited in the St George’sjudgment): “each choice made by the woman inrelation to her body will aVect the fetus and poten-tially attract tort liability”.14

One can make a case for saying that a pregnantwoman is entitled to be regarded as two persons,not as a means of subordinating her interests andautonomy, but rather to enhance it. (I haveproblems with this argument, however, and itdoesn’t work in terms of abortion). Quite simply,one could say that, given the increased needs whichpregnancy brings, the pregnant woman is entitledto call for special care and treatment for herself andfor her fetus. In theory, the pregnant woman couldact as the fetus’s proxy, with sole authority to advo-cate on its behalf, and to determine what happensto it. The problem with translating the idea of “twopatients” into legal terms, however, is that “fetalrights” proponents have deployed this concept notas a means of improving care for pregnant women,but as a pretext for coercion: state interventionwhich forces pregnant woman into an antagonisticrelationship with their fetuses. In other words, statecontrol of pregnant women.

An illustration of the coercion to which this cangive rise, is provided by certain US states. In SouthCarolina and California, drug-addicted pregnantwomen attending antenatal clinics have beenarrested and charged with criminal oVences, afterthey tested positive for drugs whilst pregnant. TheMSUC hospital in Charleston, South Carolinapursued a particularly punitive policy againstaddicted African-American women in the 1980sand early 1990s. Pregnant women attending forantenatal care were tested for drugs without their

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knowledge and, if the tests were positive, thewomen were arrested and taken into custody by thepolice. An appeal to the US Supreme Court, in acase called Ferguson v City of Charleston, recentlysucceeded: the Supreme Court decided in March2001 that covert drug-testing was unconstitu-tional.18

The South Carolina Supreme Court gave aruling in 1997, in a case concerning another drug-addicted pregnant woman, Whitner v State.19 Shewas convicted of criminal child neglect for (in thewords of prosecutors) failing to provide propermedical care for her unborn child, and jailed foreight years. He was born healthy, but a test showedprenatal exposure to cocaine. The ruling is that aviable fetus is a “person”, and that acts whichendanger fetal health—including drinking andsmoking—can be prosecuted under child abuselaws. After this ruling, the Attorney-General’s oYcein South Carolina announced that anyone who had,or who took part in, a post-viability abortion couldbe prosecuted for murder and receive the deathpenalty.20 Here are some examples of how the deci-sion has been applied:

“Whitner has not been limited to women who useillegal drugs. Following the decision a pregnantwoman in South Carolina was arrested because shewas pregnant and used alcohol. When a thirteen-year-old girl experienced a stillbirth her parentswere arrested: one charge was for unlawful conductto a child because the girl’s parents had allegedly‘failed to get proper care for the fetus’. A womanwho suVered a miscarriage was arrested andcharged with homicide by child abuse. Theprosecutor admitted there was no evidence of druguse but nevertheless insisted that the miscarriagewas a ‘crime’ for which the woman had to takeresponsibility.” (L M Paltrow, personal communi-cation, 4 May 2000)

Another example of state control is provided by theRepublic of Ireland, where the constitution givesthe “unborn” a right to life equal to that of the“mother”. Even rape is not recognised as a legalbasis for abortion, though this could be the subjectof a challenge before the European Court ofHuman Rights in Strasbourg. In two dramatic cases

involving child victims of sexual assault, the X andC cases,21 22 Irish courts have become involved inthe question whether such victims are free to travelto England for lawful abortions. Where childrenbecome pregnant, and family courts have toconsider their welfare, the Irish courts will onlypermit travel abroad for abortions when thechildren can show their lives are in danger. This issurprising, given that the Irish people voted to givewomen freedom to travel in 1992. So there aresome stark examples from both sides of the Atlan-tic of problems that arise when ethical absolutesabout fetal life are translated into law. Perhaps it isnot so much a new ethics of abortion that isrequired, as a more inclusive one.

Barbara Hewson is a Barrister at Littman Chambers,12 Gray’s Inn Square, London WC1R 5JP.

References1 RadcliVe Richards J. The sceptical feminist. London: Penguin,

1994.2 See reference 1: 279.3 A Joint World Health Organisation/UNFPA/UNICEF/World

Bank statement. Reduction of maternal mortality. Geneva: WorldHealth Organization, 1999: 14.

4 Furedi A. Women versus babies: comment & analysis. TheGuardian 2000 Feb 22: .

5 Kant I. Fundamental principles of the metaphysic of morals. InCahn SM, Markie P, eds. Ethics: history, theory and contemporaryissues. New York: Oxford University Press, 1998: 297.

6 Smith C. Contraception and the need for abortion. A quest forabortion: new research about obstacles, delays and negative attitudes.London: Voice for Choice, 1999: 3-4.

7 Mill JS. On liberty. Three Essays London: Oxford UniversityPress, 1975: 18.

8 Royal College of Obstetricians and Gynaecologists. The care ofwomen requesting induced abortion. London: Royal College ofObstetricians and Gynaecologists, 2000.

9 See reference 8: 16: para 2.110 See reference 8: 36.11 See reference 8: 26.12 See reference 1: 289.13 Malone v Metropolitan Police Commr, (1979)ch 344,537.14 St George’s Healthcare NHS Trust v S [1999] Fam; 26:46-7.15 Stenberg v Carhart US Supreme Court, June 28, 2000.16 Planned Parenthood v Casey (1992) 505 US 833.17 See reference 14: 49-50.18 Ferguson v City of Charleston, US Supreme Court 21 March

2001.19 Whitner v South Carolina, 492 SE2d 777 (SC 1997).20 Paltrow L. Pregnant drug users, fetal persons and the threat to

Roe v Wade. Albany Law Review 1999;62:999–1014.21 Attorney-General v X [1992] 1 IR 1.22 A & B v Eastern Health Board [1998] 1 IR 464.

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