Abortion is back in world news, because of a majority of the Supreme Court of the US (SCOTUS) overturning, in Dobbs v. Jackson Women’s Health Organisation, its previous judgments in Roe v. Wade and Planned Parenthood v. Casey. In these two cases, the Supreme Court had created a Constitutional right for women not to be prevented from having access to abortion prior to foetal viability. To understand Dobbs, some background information on these two cases is required.
In Roe, a majority of the Court created in what they described as a “penumbra” of the Amendments in the US Constitution, its Bill of Rights, a constitutional right to bodily privacy, which they ruled placed a woman’s constitutional right to control what happened to her body through accessing abortion in conflict with the State’s right to protect unborn human life.
The Court then undertook a balancing approach to these conflicting rights claims, recognizing that the state had an increasing interest in protecting the developing life of the foetus as the pregnancy progressed. In Casey the Court ruled that the State could legally regulate abortion only at viability of the fetus, usually set at 20 to 23 weeks gestation.
As in Australia, Criminal law is a state jurisdiction in the US and, before Roe, the state laws had criminalized abortion. The judgments in Roe and Casey applied to all states, however, because rulings on Constitutional rights take effect federally, and many of these laws restricting access to abortion were invalid. Mississippi’s law, which was challenged in Dobbs, limited abortion to the first 15 weeks of gestation and, therefore, contravened a woman’s constitutional right to access abortion as the law stood after Roe and Casey. Subsequent to Dobbs such law could now be valid.
I am often currently being asked is “What impact do you think the overturning of Roe might have on the discussion around abortion in Australia?
The short answer is it has no direct relevance, but as with most major public bioethics issues it could have repercussions.
It is difficult to predict what these will be, but it is likely to stimulate the debate on the ethics of abortion and will highlight the deep divide between those who see abortion as not raising serious ethical problems, that is as a “nothing event”, and those who see it as raising major ethical issues. These differences will be expressed in America in the likely huge discrepancies in the laws governing access to abortion across the different States.
The greatest discrepancies are likely to be the time after which abortion is prohibited, except on very narrow grounds. Georgia passed an abortion law on May 7, 2019, which prohibits abortions after a foetal heartbeat is detected; usually when a woman is six weeks pregnant. A similar law was passed in 2021 in Texas.
It is noteworthy that just as the US has thrown out the trimester and viability approaches to permitting access to abortion, the Australian states have introduced and adopted a version of them in allowing abortion on demand up to 22 to 24 weeks gestation.
A majority of SCOTUS justices overruled the constitutional right to privacy of one’s body, however, that does not mean that such a right does not exist in the law; it does, but now, at least in the United States, not as a constitutional right. Such a right exists at Common Law and in certain legislation in Australia.
Other requirements governing abortion, already in place or likely to be introduced in Western democracies, include mandating pain management in fetuses being aborted who could feel pain (13 weeks gestation or even as early as 9 weeks) and requiring women to see an ultrasound scan of the fetus before it may be aborted. Mandatory “cooling off” periods between seeking an abortion and having it are also likely.
So, where do we go from here?
Abortion is always a serious ethical issue, even when it is not a legal issue. Just because something is legal does not mean that it is ethical. Having an abortion is not, as some prochoice supporters argue, “a nothing event” for most women, who have had an abortion. In one case, an 83 year old woman contacted me wanting to tell me how much she still regretted having had an abortion as a 19 year old and grieved for the lost child.
Likewise, just because a majority supports something does not mean it is ethical. A majority supported the euphemistically labelled “Aboriginal Protection Acts” passed by Australian state governments from 1869 to the final one being repealed only in 1969. These authorised the Stolen Generations of Aboriginal children which, today, we recognise as profoundly unethical. We can only assume our grandparents agreed with these Acts.
If possible, when debating a conflictual ethical issue, such as abortion, we should try to start from agreement, not disagreement, and then move to where we disagree. This allows us to have an experience of all belonging to the same “moral universe”. Such a starting point is that the vast majority of people, on both sides of the abortion debate, agree that we want to have as few abortions as possible. Therefore, an important question is how we can achieve that.
We need independent abortion counselling, not abortion clinics undertaking this or even obtaining the woman’s informed consent to abortion. The danger is clinics’ strong commitment to providing abortion, means they can see a woman’s change of mind from seeking abortion to refusing it, as a failure on their part.
We also need to keep in mind that people at each pole of the abortion debate are most often the only ones featured in media, whereas, poll statistics show, the large majority of people probably lie on a spectrum somewhere between these two poles.
Moreover, people who would characterize themselves as prochoice can reject abortion undertaken for certain purposes, for example, sex selection abortion. Likewise, those who count themselves as prolife can accept that in certain circumstances, such as serious danger to a woman’s life, a rare occurrence, the decision whether to have an abortion should be left to the woman.
We must ask if we gave women with an unwanted pregnancy, that is, those seeking abortion for social reasons, the support from which they could benefit, would they still opt for abortion?
A not-uncommon failure on the part of some prolife advocates is that their support stops at birth. This is far from enough to reduce the large number of abortions, approximately 100,000 a year in Australia. In order to continue with the pregnancy and keep the child, many women need comprehensive, long term help to care for a child and to maintain an acceptable life situation for themselves. They need ongoing physical, psychological, economic and social support, as some prolife organizations recognize.
This support is needed not only from a philanthropic, kindness or religious point of view, but also, from both a legal and an ethical perspective. Legally the woman must give an informed consent to abortion. That requires that she be informed of the risks, harms, benefits and potential benefits of all reasonably indicated options, including that of refusing all interventions.
Then, her consent must be voluntary, that is free of coercion, duress or undue influence. Some countries have seen fulfilling this requirement as needing the woman to have counselling in a neutral facility, not an abortion clinic, prior to consenting to the procedure.
I am concerned that very restrictive abortion laws could dangerously backfire. My approach is to say that abortion is always a very serious ethical issue from fertilisation on, but it is a separate question when the law should step in. Abortion cannot be prevented, in practice, up to around 11 weeks gestation, because chemical abortion can be used and to try to stop that with law will fail and in doing so bring the law on abortion, as a whole, into disrepute and make it ineffective. After that time, only surgical abortion is possible and law is appropriate to govern that and will be effective. As you will guess, both sides reject my arguments, but as one of my students once said to me, “You know, Professor Somerville, when you have everyone mad at you, you might be on to something important”.