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Abortion

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The British Columbia Civil Liberties Association recommends that all reference to abortion be removed from the Criminal Code. In particular, it recommends the appeal of sections 159(2)(c), 221, 251 and 252.

This reform is widely supported, and the arguments for it are strong and familiar. It is enough to give a brief review of the Association’s position with respect to these arguments, in order mainly to:

  1. reaffirm women’s claim to freedom,
  2. reply to claims somtimes made on behalf of the embryo or fetus, and
  3. point out that those with moral or religious scruples about abortion that they nevertheless ought, in the circumstances, to reject the use of criminal law to enforce their views.
  1. Legal restrictions on abortion limit the right of a woman to determine whether or not she will bear children. It is unrealistic to affirm her right to decide, but deny her the mans of implementing that right once pregnancy has, in whatever circumstances, actually occurred. Further, legal restrictions on the termination of pregnancy limit the right of a woman to care for her own physical and mental health, and to control her own body. Recent writing on women’s liberation has made clear that these rights are of fundamental importance to women. It would therefore require most urgent considerations of the public interest to justify any abridgement of them.

    These rights call for complete legal freedom to secure an abortion, in the sense that the legal status of abortion should be the same as that of other medical services that a doctor provides to a patient.

  2. This basic case against the existing law is augmented by considerations of public policy, in particular prevention of the suffering and exploitation that is due to the illegal abortion racket. In general, the arguments run overwhelmingly in the one direction. On the other side there is only one kind of argument that can be taken seriously. There is nothing to be said for abridging rights important to women, or for having any criminal restrictions on abortion, except the claim that an embryo or fetus has some right to protection. The embryo or fetus is a human one and it is alive in the sense that a part of one’s body is alive. Some people find in this a ground of moral objection. The extreme form of such objection is the attempt to assimilate abortion to the killing of a child, expressed in the outright classification of abortion as murder.

    Arguments of this kind rest on complicated theological and metaphysical doctrines, and it is not necessary or appropriate for anyone to enter into the arguments who is not already committed to the doctrines. For present purposes it is enough to say that, if we obliterate the difference between embryos and fetuses on one hand, and persons on the other, and if we attempt to extend to the former, the principles that apply to the moral relations among persons, we violate common sense. Respect for language enables us to reject the view that aborting a fetus is killing anyone at all. After an abortion, as after a miscarriage, it seems merely reasonable to deny that there exists or ever has exists any person who has died or been killed. Both in morality and in law, all the obligations we owe are owed to actual persons and not merely possible persons.

    It remains the case that many people feel some kind of repugnance about abortion. But these attitudes are not of a kind or moral force capable of outweighing substantial moral rights of persons.

  3. The weakness of the moral objection is a matter of very widespread, probably majority, agreement. At the same time there is a large minority who think such an objection important. But both sides of the controversy should recognize that the disagreement makes it desirable for the law to be silent, and to leave decisions about abortion to the conscience of the individuals concerned. It is a matter of conscience on both sides, since many people believe there are occasions on which it is amoral duty to have an abortion. Those who have a moral or religious objection are, of course, left free to act accordingly.

    In addition, even those who disapprove of abortion must recognize the powerful case against legal restrictions on the grounds that it is ineffective and that it creates the condition in which illegal abortionists risk the lives and health of the thousands of women they exploit. It is consistent for those who object to abortion to admit that the restriction of personal rights and the production of social damage combine to provide an even stronger objection to the use of criminal law in reducing abortion.

    In summary, a legal restriction on freedom of abortion is a very serious invasion of the right that women have, within limits of not harming others, to conduct their own lives as they see fit. Given this consideration, the social damage attributable to the law, and the absence of any substantial argument on the other side, there is an overwhelming case for repeal of the law. Even those who believe there is a moral objection to abortion should recognize that their objection cannot be appropriately enforced by the Criminal Code.