Abstract
In this paper, I begin by distinguishing between the moral evaluation of the law that criminalizes abortion and the moral evaluation of abortion itself. In the public debate on abortion, these are issues that we frequently find mixed up, and that must be analyzed separately. Regarding the moral evaluation of the law, there are at least two possible ways of assessing it: in terms of the consequences of the law and in terms of women’s rights. I argue that anti-abortion laws have negative consequences at different levels: for the women who are denied termination of their pregnancies when they do not want to go on with them, for unwanted children, and for society at large. These laws also infringe upon some of women’s most fundamental rights in a way no other law does, requiring them to sacrifice their freedom, autonomy, privacy, and future life, and putting their health and bodily integrity at risk. However, according to those with a conservative view on abortion, none of this justifies the intentional killing of an embryo, which they take as a person with a right to life. I argue that there are no good arguments in favor of considering an embryo to be a person since on all accounts, the ascription of personhood requires the presence of mental or psychological properties, which do not appear until the end of the second trimester of pregnancy. We cannot ascribe a right to life to the embryo, either. Therefore, there is no justification for all the negative consequences of anti-abortion laws and for the infringement of women’s rights.
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Notes
- 1.
Many people who favor the criminalization of abortion tend to use words indiscriminately, claiming that ‘abortion kills babies’ or ‘abortion kills children,’ making ‘embryo’ equivalent to ‘baby’ or ‘child,’ which is incorrect—in that case we would talk about infanticide, not about abortion. This is obviously intended to elicit a stronger negative emotional response from the audience against abortion. However, we should be careful with words: a zygote (a cell formed by the fertilization of two gametes) divides through mitosis and, by the fifth day, forms a blastocyst, which after further divisions may become implanted in the uterus. Although there is no universal agreement on when the embryo begins, ‘embryo’ is the term used to refer to this organism between the fourth week (after implantation has already occurred) and the eleventh week after fertilization. At the beginning of the twelfth week the embryo is termed a ‘fetus’ (Schoenwolf et al. 2015: 3–4). Only after birth it can properly be called a ‘baby’ or a ‘child.’ Since I focus mainly on abortion during the first trimester, I will mostly use the term ‘embryo’—although, as will be apparent, my arguments can be used to justify the permissibility of abortion during the second trimester, as well.
- 2.
- 3.
- 4.
In El Salvador, abortion was legal under some limited circumstances, but in 1998 a new law made abortion illegal under any circumstance. Nicaragua prohibited any type of abortion in 2007. Many states in Mexico amended state constitutions to protect life from the moment of conception, as a reaction to Mexico City’s law reform that decriminalized elective abortion for the first trimester in 2007. In Brazil, where evangelicals are becoming more powerful political actors, members of Congress have tried to toughen penalties for women who abort (Carless 2016).
- 5.
In Latin America, due to restrictive abortion laws, the risk of dying from abortion is 32.9 deaths per 100,000 procedures (Khan et al. 2006: 1068). In Mexico, nationwide, it is around 40 deaths per 100,000 procedures, versus 0.0 deaths per 100,000 procedures in Mexico City, where elective abortion is legal (Schiavon et al. 2015). Thanks are due to Raffaela Schiavon for sharing the results of her research.
- 6.
I realize that framing a reduction in numbers of abortions as a positive consequence of decriminalization is quite controversial within the reproductive rights movement. There are those that believe abortions should be “safe, legal and rare” [e.g. Hillary Clinton in her 2008 campaign (On the Issues 2008)] and those who believe equating rare and good heightens the stigma around abortion.
- 7.
It is often said that adoption is a solution to the problem of abortion, but the disparity between the high number of abortions and the low number of adoptions in Latin America (and elsewhere) makes this option unrealistic. I have argued that adoption is not an answer to the problem of abortion, at least in the case of Mexico, in Ortiz Millán (2009).
- 8.
There are economic analyses of the consequences of anti-abortion laws. Monea and Thomas (2011), for instance, estimate the annual costs of unintended pregnancies in the U.S., and how the prevention of such pregnancies could save taxpayers a significant amount of money.
- 9.
Kost et al. (2008) analyze the results of the 2002 National Survey of Family Growth and conclude that “12.4% of all episodes of contraceptive use ended with a failure within 12 months after initiation of use.” Fertility-awareness-based methods, such as the “rhythm,” “periodic abstinence,” or “natural family planning” have the highest probability of failure (25%).
- 10.
To be sure, decriminalization by itself does not make abortion safe. Conditions of poverty and ignorance, lack of sex education, lack of access to adequate health services and contraceptive methods, among others, contribute to making abortion unsafe. To assume that decriminalizing abortion would be enough to make abortion safe is an oversimplification of the problem. India, for instance, decriminalized abortion in 1971 through the Medical Termination of Pregnancy Act, but out of 6.4 million abortions, 3.6 million (56%) are unsafe (Sedgh et al. 2007). Decriminalization has to be accompanied by public policies that contribute to making abortion safe, such as family planning programs.
- 11.
The case of the US is an example of how the state has infringed upon a woman’s right to health care “legally,” since the US legally denies women this type of health care.
- 12.
Around 30% of Latin American married or in-union women of reproductive age do not use any contraceptive method, and among those who do, the dominant methods are those that are, so to speak, the responsibility of women (IUDs, pills, rhythm, implants, etc.), and less than 10% use male condoms (UN 2015). This suggests that men tend to leave contraception in the hands of women.
- 13.
An alternative account of this kind of argumentative line is that of Thomson (1971). She grants, for the sake of the argument, that the fetus has a right to life and then argues that it does not trump the pregnant woman’s right to decide over her pregnancy, and that an intentional abortion is not morally impermissible.
- 14.
For more on this line of argumentation, see Warren (1997).
- 15.
There are other answers to the question about why abortion is immoral. Don Marquis has given one of the most prominent ones. According to Marquis, abortion is immoral since it deprives an embryo or fetus of a “future like ours” (1989: 191), and this is something of value to us. However, many have objected to Marquis’s argument. Walter Sinnott-Armstrong (1999), for instance, argues that Marquis equivocates the meaning of “loss.” It either means the privation of a future to which the embryo has a moral right or the privation of a future to which it has no moral right. If this definition were accepted, Marquis would still have to explain how an embryo has a moral right to the means of realizing its future for his argument to be sound. For a deeper analysis of Marquis’s argument, see Boonin (2002).
- 16.
Even if human embryos are not persons and have no right to life, they should be legally protected goods, just like parks, water, historic monuments, or the environment. Human embryos are valuable and must be protected by law. This point is important because it would be the basis for punishing, for example, someone who causes an abortion to a pregnant woman against her will.
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Acknowledgements
Thanks are due to Jennifer Paine, Eduardo Rivera-López, Enrique Rodríguez, and to an anonymous reviewer for their many comments on an earlier version of this paper, and to Susana Lerner and Raffaela Schiavon for the information they gave me regarding their research on abortion. I am also grateful to the Dirección General de Asuntos del Personal Académico of the Universidad Nacional Autónoma de México (UNAM) for the financial support that allowed me to do this research as a visiting scholar at Duke University.
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Ortiz Millán, G. (2019). Anti-abortion Laws and the Ethics of Abortion. In: Rivera-López, E., Hevia, M. (eds) Controversies in Latin American Bioethics. International Library of Ethics, Law, and the New Medicine, vol 79. Springer, Cham. https://doi.org/10.1007/978-3-030-17963-2_2
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