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Constitutionality and Morality of Abortion

  • Category
    Ethics
  • Published
    17th May, 2022

Overview:

  • Historical case study of abortion rights in USA.
  • Indian Provision.
  • Women’s Reproductive rights
  • Reasons behind opting abortion
  • Morality of Abortion
  • Arguments in favor
  • Arguments against abortion

Context

  • The Supreme Court of the United States (SCOTUS) has privately voted to strike down the constitutional right to abortion.

Background

  • Access to health services and the right to make a decision about managing the pregnancy or obtaining an abortion has a lot to do with individual rights. This conservative approach of the state has the potential of causing irreversible damage to female health and it can also be seen as an infringement of women’s rights.
  • It has become a contentious issue all over the world. Everybody is in a bit of a predicament whether a mother has a right to terminate her pregnancy at any time she wishes or an unborn child has a right to life.
  • The law prohibits abortions once cardiac activity gets detected in the embryo, which usually occurs around the sixth week of pregnancy. Most women do not know they are pregnant at that point as it’s the early stage of pregnancy. So, it becomes relevant to unearth the Abortion Ethics, which often gets ignored or subjected to misinterpretations.

Analysis

Historical Background of Abortion Rights in USA:

  • Roe v/s Wade case, 1973: in this landmark judgment, Supreme Court of United states upheld the abortion right as constitutional rights, effectively striking down wide range of state-level abortion limitations applied before foetal viability.

Foetal Viability: Foetal Viability is the point at which a foetus can survive outside the womb, at that time considered to be around 28weeks, but today due to advancement in medicines and technology, came closer to 23 to 24 weeks.

  • Planned Prenthood v/s Casey case, 1992: in this judgement Supreme Court of United States (SCOUT) threw out the so-called trimester framework, while ensuring the ‘essential holding’, of Roe v/s Wade case, which established the women’s constitutional right to abortion until foetal viability.

Indian Provision in Abortion Right

  • Medical Termination of Pregnancy (Amendment) Act, 2021: in the year 1971, Indian legislators had passed the law, ‘Medical Termination Pregnancy Act’ to regulate the procedure of termination of Pregnancy. Recently, Government of India has passed an amendment act to the Medical Termination of Pregnancy act. The provisions included in the Amendment Act:
    • Categories for termination of Pregnancy :
      • survivors of sexual assault or rape or incest
      • minors and women whose marital status changes during an ongoing pregnancy (widowhood and divorce)
      • women with physical disabilities
      • mentally ill women
      • cases of foetal malformation that has
        1. a substantial risk of being incompatible with life
        2. or if the child is born it may suffer from such physical
        3. or mental abnormalities to be seriously handicapped
  • K S Puttuswami v/s Union of Inida: In the landmark judgment in KS Puttaswamy v Union of India, the Supreme Court recognised women’s constitutional right to make reproductive choices and the right to “abstain from procreating” was read into the right to privacy, dignity and bodily autonomy.

What are women’s reproductive rights?

Based on the multiple definitions of reproductive rights, it can be said that they include some or all of the following rights –

  • right to safe and legal abortion
  • right to control one’s reproductive functions
  • right to access in order to make reproductive choices free of coercion, discrimination and violence
  • right to access education about contraception and sexually transmitted diseases and freedom from coerced sterilization and contraception
  • right to protection from gender-based practices such as female genital cutting and male genital mutilation

Reasons women give for wanting abortions, worldwide:

  • disruption of education or employment
  • lack of support from father
  • desire to provide for existing children
  • poverty, unemployment or inability to bear children
  • interrelation problems with husband or partner
  • a women’s feels that she is too young to have a child

The morality of Abortion:

  • Many of us do believe that at least a few abortions are immoral but the law should not restrict choice in this realm. For example, if abortion is permissible when a pregnancy is due to rape or incest, that’s hardly a general right to abortion or a choice gives to a female.
  • Cardiac activity in a foetus is often considered a sign of potential life. There are chances that the cardiac activity detected on ultrasound is not a true heartbeat. It may be due to the electrical activity, and the valves of the heart may not have formed yet. And the sound of the activity does not indicate the pregnancy is viable (baby can be born and have a reasonable chance of survival). “Coercing them to find out about the pregnancy and make a decision about how to manage it in such a short window (six weeks) is contradictory to ideals of ethical care.

Arguments in favour of Abortion:

  • A female is considered a moral person, that is entitled to rights, including the right to life. So, abortion is deemed acceptable as the foetus is not a person. A list of criteria of personhood is identified, which includes consciousness, reasoning, activity, communication and self-awareness. A foetus undeniably is incapable of fulfilling these criteria.
  • The mother, who is a person, has a right to life and it supersedes the rights of the foetus to choose whether or not it remains connected to her body.
  • Also, pregnancy is assumed to be a foreseeable consequence of heterosexual intercourse, that too when there is no intention to ‘have a baby’. So, denying her the right to abort the child when she was not planning for it is unwarranted.
  • Abortion in self-defence: It may be ethical for a mother to have an abortion to defend herself from the danger to her mental or physical health than continuing with the pregnancy would cause. Abortion is considered in relation to the ‘Doctrine of double effect’.

The doctrine of double effect: The doctrine says that if performing something morally good has a morally bad side-effect it's ethically righteous behaviour to do it provided the bad side-effect wasn't foreseeable. It holds even if you can anticipate that the bad effect would probably come off.

Arguments Against abortion:

  • Future like ours’ argument: Abortion is wrong because it deprives the foetus of a potential 'future like ours'. It suggests that death is a bad thing because it deprives people of all the experiences, enjoyments, opportunities that would make up their future personal life. So, the foetus has an intrinsic potential future value and killing a foetus is wrong as killing an adult is wrong.
  • Killing people is wrong: Killing an innocent human being is a moral wrong. Those who are against abortions believe that human life begins at conception, and by drawing the same analogy, the foetus is an innocent human being. So, killing the foetus is wrong and abortion is always wrong.

It’s her right whether to bring the pregnancy to term or abort it:

  • Abortion concerns the autonomy and dignity of the pregnant woman herself. “Autonomy” derives from Greek and means, literally, “self-rule”. If a woman who is pregnant wishes to stop being pregnant, it cannot be taken away from her.
  • Attitudes to pregnancy are, however, intertwined with how society views sex, women, and the fertile woman specifically. Pregnancy and birth are not trivial inconveniences, such as having a headache. They constitute a major life event, which even when are desired causes immense discomfort and disruption to many women.
  • While pregnancy increases the personal responsibilities of a woman it does not plummet her prerogative to decide whether or not to undergo medical treatment. Her right is not diminished merely because her decision to exercise it may appear morally contrary to the existing or imposed beliefs of the society.

Conclusion

The decision of whether or not to bear a child is central to a woman’s life, to her well-being and dignity. She ought to be the one deciding it for herself. When Government superintends that decision for her, she is being treated as less than a fully adult human accountable for her own choices. We need to bestow much greater support to women who may want to conceive and raise their children, but opting out of it for financial, psychological, health, or relationship reasons Criminalising abortion does not stop abortions, it just makes abortion more unsafe.

Practice Question

Q1. Abortion issue possess dual conundrum over right of foetus vs right of mother. Justify your stand on the issue of abortion.

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