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by Dr. Ruwantissa Abeyratne, United Nations, Montreal

One of the landmark events in the Western world occurred in 1973 in the United States where the Supreme Court, in the case of Roe vs. Wade, decided that unduly restrictive State legislation regulating abortion was unconstitutional. In this case, the Court ruled that a woman had the constitutional right to obtain the abortion of her fetus freely, after consultation with a doctor in the first trimester of pregnancy and in an authorized clinic in the second trimester. The Roe decision encouraged the "pro choice" approach to abortion while ensuring a woman's right to privacy. Across the Atlantic, no European court had gone that far in establishing a woman's right to privacy concerning the act of interrupting a pregnancy. In 1975, an Italian court had endorsed earlier enacted law in the country justifying and legitimizing induced abortions calculated to save the life of the mother. Australia and France, in 1975, endorsed liberal statutes designed to allow voluntary abortions in certain circumstances, without explicitly recognizing a woman's constitutional right to procure an abortion.

A German constitutional court held in 1976 that abortion laws must protect both the life of the mother as well as that of the fetus, holding that both lives were inviolable. The only reservation the court expressed, in prioritizing the rights between the mother and fetus, was that it was justifiable to save the life of the woman if she was in distress or was carrying a fetus as a result of rape or incest.

However, the failure of the Supreme Court to write specific guidelines for acceptable legislation spawned counter movements for the restoration of strict control over the circumstances under which an induced abortion might be carried out.

The emergent controversy between pro and anti- abortion gave way to some degree of judicial resolve, when, in 1989, a more conservative US Supreme Court upheld the legality of certain new State restrictions on abortion in the case of Webster vs. Reproductive Health Services, which some viewed as a precursor to the overturn of the liberal judgment of Roe vs. Wade.

The enthusiasm and expectation of those who desired the Roe decision to be overturned gave rise to protests in the immediate vicinity of abortion clinics. In 2000, the US Supreme Court, in the case of Stenberg vs. Carhart, struck down a law of the State of Nebraska which criminalized partial birth abortions. Contemporaneously, in Hill vs, Colorado, the Court upheld a law restricting protests outside abortion clinics.

Fundamental argument

The most fundamental argument adduced by conservative activists opposing abortion, who belong to the "pro life" group, is that there is no rational basis for distinguishing the fetus from a new born infant, as each is a potential member of society and therefore possesses a degree of humanity which deserves respect.

The less conservative view is that at least during the first three or four months of pregnancy, the fetus exhibits very few human characteristics. In this context, a distinction must be made between the embryo and the fetus, as any discussion on abortion involves discussion about the fetus or the fetal stage. Biologists consider, somewhat arbitrarily, that the earliest stage of development of the fertilized egg is the embryonic period. The embryonic period ends when the external form of the embryo begins to show signs of the newborn of the group to which it belongs. The second period is the fetal period which lasts until birth. The distinction made between the former and latter stages is that it is during the latter stage that the potential being in the womb resembles the ultimate birth product by developing limbs and organs. In the scientific context, the transition from the embryonic period to the fetal stage starts during the eighth week of pregnancy. If expulsion of the human fetus occurs before 20-22 weeks, i.e. the period during which the fetus cannot survive outside the womb, such an expulsion, if induced, would be called abortion. If the expulsion is not induced it is called miscarriage. Expulsion of a dead fetus after 22 weeks of pregnancy is considered a still birth and that of a live fetus is called a premature birth.

Ethical issues

Abortion is a widely debated ethical issue which has polarized the "pro life"group and the "pro choice"group into assertive and vocal conflict. The pro life group only accept abortion in extreme circumstances, as when the mother's life is threatened unless the pregnancy is terminated. The "pro choice" group believes that the fetus is only a potential human being when it is able to sustain its life outside its host's womb. According to this group a fetus has no human rights and all rights belong to its host, the mother. "Pro life"supporters believe that the fetus is a living human being and is therefore entitled to the right to continue living. The debate is further aggravated by the fact that embryology, or the science of human reproduction, offers no cogent and clear guidelines and determinants as to when life starts in the womb. This ambivalence has led to religious, ethical and moral argumentation that has only succeeded in obfuscating the issue further. Confusion is rendered worse confounded by the subject of abortion reaching the political stage in some jurisdictions which in turn has resulted in stereotyping and further debate. Any debate on the issue of abortion must start at the basics, on which presumably both the "pro life"and "pro choice"supporters are both agreed upon. That is, that no one supports the killing of an existing human life form. Therefore, the entire issue boils down to the interpretation of the word "life"in the context of the fetus. Given the absence of a clear medical statement on the chronology of the genesis of human life in the womb, the interpretation could go either way, according to the beliefs of the pro life and pro choice groups.

On the question "is it good to abort a human fetus"? The answer would depend on what is good. The most telling treatment of good and bad can be seen in Plato's Republic where the philosopher says that goodness is not related to a particular event or action but should be generally felt or practiced. In this context, the question then would be "would one feel that it was in accordance with the general sense of goodness to abort a human fetus in the absence of specific determinants as to the existence of life? The obvious answer to this would be "no" since it would be repugnant to general moral turpitude to go ahead with any action that might be considered generally bad.

The logical sequence to this line of questioning would lead one to the inevitable question "what is morality"? Simplistically put, morality is belief and conduct that makes a human being good, that he is doing the right thing.

Accordingly, anarchists are morally horrified of the tyrants they impale and judges feel good about criminals they sentence.

In Russell on Ethics, Bertrand Russell alludes to the conclusion that morality is a device for inhibiting our natural sympathies on occasions when we wish to inflict pain, whether from motives of self preservation, ambition or sheer cruelty. When this proposition is applied to the issue of abortion, one could see a certain comforting justification in the arguments of both the pro life and pro choice supporters.

While the former would castigate the mother and penalize her for committing a crime, the latter would treat the fetus as an unwanted vestige that stultifies the enjoyment of life by the mother by just being there. To take the argument further, Immanuel Kant in his work Fundamental Principles of the Metaphysic of Morals argues that nothing can possibly be conceived which can be called good without reservation or qualification, except a Good Will.

Therefore intelligence, judgment, wit and other positive attributes of the mind such as courage, resolution and perseverance may be considered good or bad depending on the perception of the person so determining. Kant observed that the only true test of the difference between good and evil lies in the will of the person concerned. If an act is performed with good will it can be assumed that it is a good deed. Therefore, an act done in pursuance of a sense of duty derives its moral worth, not from the desired purpose of that act but from the philosophy underlying the determination of the act.

Such an act would not depend on the realization of the object of the action but merely on the principle of volition upon which the action takes place, without regard to any object of desire. Kant goes on to say that duty is essentially the corollary of respect for the law.

Any ethical consideration of abortion must essentially return to the legal principles involved for a final overall treatment of the subject. If one were to believe, as most persons advocating a "pro life"approach do, that the life of a person and all political rights attending it begins at conception, the assumption that follows would be that an innocent person is entitled to the protection of society against the deliberate destruction of its life by another person. The latter enforces the right of a person to life, which is guaranteed in many basic legal and political documents such as the United States Declaration of Independence and the Universal Declaration of Human Rights of the United Nations.

For those who believe that abortion should be legally permissible (regardless of its morality), one of the most common arguments is based on privacy rights. Abortion rights advocates hold that a woman's right to determine what happens with her body (including whether to carry a pregnancy to term) is private, is not to be interfered with by outside influences, and negates all rights of her offspring. The fundamental flaw in this argument, from the point of view of the "pro life"group is that the woman's body is carrying another human entity, whose interests are not subservient to the those of the woman who hosts that human entity.

The most fundamental attribute of moral philosophy is that in its purest form, a moral philosophy must carry with it the element of absolute necessity, couched in immutable and unquestionable terms. Therefore, the precept "thou shalt not kill" would of necessity entail abstinence from the physical act of killing that is impelled by the mental element. The problem lies not so much in the physical element of the crime as it does in the mental element. In criminal law, intent has to be perceived and proved "beyond reasonable doubt"before a court could find the offender guilty of having committed a crime. Unfortunately, intent is perceived superficially by the circumstances of the act and facts which may denote pre meditation or a will to commit a crime, although there may be circumstances where the perceived will of an offender could be deceptively misleading and be impelled by physical factors which are not even remotely connected to actual intent.

From the point of view of legal philosophy, a moral perception of a crime should not be obfuscated by peripheral or perceived intent but should be viewed harmoniously, in the context of the elements of freedom and compulsion. In other words, consideration must be given to the element of "will" in the determination of the extent to which the criminal's will impels him to commit a crime.

A will associated with an action would therefore be good only if there is volition and therefore it is logical to argue that the determination of "intent" or will entirely hinge on the element of volition. In determining the will of an offender the question arises, "did the offender make a value judgment?" In a criminal law context the question as to the mens rea or mental element would undoubtedly depend on a determination of volition, at least from a theoretical sense.

Therefore, the question that should be asked is not whether the suspect had the intention to perform the crime but whether he was unreservedly driven to the crime through his own volition. This subtle distinction would cover a situation where a person has the intent to commit a crime but that intent is not volitional or of his own free will simply because there may be a social or biological factor that precludes him from exercising volition as an ordinary person would.

The concept of volition plays a major role in determining whether adherence to a law by a citizen is through intent or a sense of duty. An action done as a duty, such as following a law, derives its moral worth, not from the purpose attained through that act but from the volitional agreement of the person who conducts the act. A legal duty that is expected from a person, is the necessity of acting from respect for the law. An intent to commit a crime is not essentially related to disrespect of the law, unless volitionally driven. Philosophically, this distinction can be illustrated through the bifurcation of the imperatives of Immanuel Kant as already discussed.

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