Hugh McLachlan: State has no right to intrude on pregnancy

Published on 02/10/2012 00:00

A recent court case, writes Hugh McLachlan, raises issues about the line to be drawn between moral and legal rights

THE links between our reaction to the recent report of the Hillsborough disaster and the ethics of climate change and abortion might not be immediately obvious. Nonetheless, they exist.

It has become clear that misinformation and lies were spread about the victims. They were falsely blamed for being, to various extents, responsible for their own deaths through drunkenness and hooliganism. There appears to be general agreement that we ought not to slander the living or the dead. It is not only those people who have currently living human bodies who are due moral consideration and respect.

Similarly, it is difficult to see how climate change would be a moral issue if we did not have moral duties towards and concerning potential members of possible future generations. If only those people who have currently living human bodies are due moral consideration, it would seem to follow that it is of no moral significance whether or not we leave a planet that could be fit for their comfortable survival.

Curiously, some people who abhor the slandering of the dead and support conservationist policies regarding climate change seem to assume that it is of crucial importance whether or not a foetus is considered to be a person when they think about the ethics of abortion.

This would seem to be a blatant contradiction.

Furthermore, it irrationally polarises the debate about abortion. It tends to lead people to adopt either the extreme conservative view that abortion is akin to murder or else the extreme liberal view that abortion is not really a serious moral issue.

One might but need not adopt either of these views. We could owe moral respect and consideration to people into whose mature bodies foetuses might develop prior to that development. We need not assume that there must be some particular special stage of biological development that triggers the existence of our moral rights.

One might argue that – at whatever stage of development the foetus might be – abortions are sometimes morally heinous, sometimes morally excusable and sometimes morally justified. Whatever view one has of the ethics of abortion, there are various different positions one could choose to adopt regarding the desirable legislation on abortion. Morality does not determine criminality.

There is a difference between that which is a crime and that which is morally wrong. There is a difference between having a moral duty to do something and having a legal duty to do it. Legal distinctions need not correspond to ethical ones. For instance, adultery can be morally wrongful and socially harmful. Nonetheless, it does not follow that it should be, as it once was in Scotland and still is in some other countries, a very serious criminal offence.

We choose where to draw legal lines. Neither ethics nor anything else forces us to do so. There is no significant ethical difference between, for instance, having sex with someone who is sixteen years of age and someone who is, say, a day, a week or a month younger but we have chosen to make a significant legal difference.

Whether or not we think that there are moral duties relating to abortion, we need not choose to create legal ones. Similarly, we could choose to create legal duties even if we thought that there are no inherent moral duties relating to it.

Recently, a woman was sent to jail for eight years for having an abortion.

The judge, Mr Justice Cooke, was quoted as saying: “The child in the womb was so near to birth that, in my judgment, all right-thinking people would consider this offence more serious than manslaughter or any offence on the calendar other than murder.”

There is a difference between taking away the life of a person who would otherwise have lived and ceasing to provide the hospitality of a womb to someone who could not survive without it. What the woman did was not the same sort of thing as a criminal act of murder or manslaughter no matter how immoral the action.

As soon as a baby is born, it has a legal as well as a moral right that it is not wilfully and wantonly killed. We all have a legal duty not to kill it wilfully or wantonly. In such a sense those who are alive have a right to live. However, we did not have a similar sort of right to be born. Those who are yet unborn require the hospitality of a womb for their bodies to remain alive and to retain the chance of being born. We do not all have a legal duty to provide a womb for such bodies. Pregnant woman should not be saddled with a legal duty to provide such hospitality.

To refrain from offering the hospitality of one’s womb or to cease to provide it is not the same sort of thing as intentionally killing someone. It should not be a criminal offence. To kill intentionally is different from doing intentionally and predictably that which prevents a birth. We can and should choose to make a legal distinction.

How can it be morally worse – worse for whom? – and more deserving of legal punishment to offer the hospitality of one’s womb for a longer rather than for a shorter period of time?

It is morally wrong to slander the dead. However, it is not illegal. Legal rights are for those who have been born and are not yet dead.

Whether or not it is morally wrong to have an abortion, it should not be illegal. In no circumstances at all should it be a criminal offence far less one that can result in a lengthy prison sentence. The state should not intrude, unbidden, upon a woman’s pregnancy.

• Hugh McLachlan is professor of applied philosophy in the School for Business and Society at Glasgow Caledonian University