In 1973 in the Roe v Wade case, the Supreme Court legalised abortion throughout the United States. Now, almost fifty years later the same court is considering overturning that judgement and returning abortion law to the states to decide.
Media reporting of this case, especially in Europe, has been quite misleading. Often journalists have simply repeated the opinions of American opponents of the case: that the proposed law in Mississippi is extreme and restrictive; that overturning Roe v Wade will take away a “right” to abortion; and that it will endanger women’s lives.
In fact, in relation to time limits, the Mississippi law is more permissive than most states in Europe. This is hardly noticed as the Mississippi law is invariably described as “banning almost all abortions after 15 weeks” while the laws in European countries are described as “permitting abortion on request up to 12 weeks”.
Nor did Roe v Wade enshrine a right to abortion. The ruling prevents states from restricting abortion before viability but the case was not about a right to be provided with an abortion. It was about a right to privacy in relation to abortion. Abortion was considered a private matter with which the state should not interfere but by the same logic there was no duty on the state to provide or to fund abortions. Some states fund abortion; many do not and federal funding is very restricted. It only covers cases of rape, incest and danger to the mother’s life.
Lastly, comparison with Europe shows that America, which currently is much more permissive on abortion than the great majority of European states, has far worse maternal health. Even though America spends much more on healthcare than any other country, the average maternal mortality rate in the United States is as bad as Moldova or Romania, the poorest countries in Europe. The worst rate of maternal death in the United States (the state of Louisiana) is three times as bad as any country in Europe.
According to Pope Saint John Paul II, procured abortion is “the deliberate and direct killing, by whatever means it is carried out, of a human being in the initial phase of his or her existence, extending from conception to birth”. This definition includes all procedures that aim to prevent the child from being born alive, but excludes emergency interventions where the intention is to save a mother’s life where the death of the child is a tragic and unintended side-effect.
The right to life of the unborn child is not fully recognised by most states in Europe, but the European Court of Human Rights recognises that there is a “margin of appreciation” in how a state balances a mother’s right to privacy and the state’s interest in protecting the unborn child. Laws which restrict abortion in most circumstances have consistently been upheld by the European Court as compatible with human rights. If Roe v Wade is overturned this will be a further witness to the fact that there is no human right to abortion.
Roe was a bad decision not only in relation to its conclusion but also in the way the decision was made. It declared that laws on abortion were unconstitutional even though the Constitution of the United States makes no overt reference to abortion. This decision was an example of judicial activism or “legislating from the bench” a court usurping the role that properly belongs to the legislature. It reflected the political views of the judges and it led to the process of appointment of Supreme Court judges becoming much more partisan.
By contrast, in Ireland, abortion is overtly mentioned in the constitution as the result of a referendum and the constitution was amended after another referendum. Similarly, the Abortion Act 1967 was a law passed by Parliament. The laws on abortion in Ireland and in Britain are gravely unjust but they were forged through democratic processes and are open to amendment by the same processes. They were not created by a coterie of unaccountable judges.
For this reason, pro-lifers should be cautious before welcoming the decision of Poland’s highest court that laws permitting abortion for reason of disability are unconstitutional. This decision is a mirror of Roe v Wade both in that there is nothing in either constitution about abortion and in that the process of appointing judges has been a politicised. If this decision is overturned at some time in the future, as seems likely, the last state will be worse than the first.
If we are to learn from Roe v Wade then we should aim to make good laws in the right way, by persuading our compatriots that abortion is neither a human right, nor a means to secure women’s health, but is rather a grave injustice.
David Albert Jones is the Director of the Anscombe Bioethics Centre, Oxford, Research Fellow at Blackfriars Hall, Oxford, and Professor in the School of Education, Theology and Leadership at St Mary’s University, Twickenham.
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