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A DIRECTIONAL ASSESSMENT OF SUGGESTED LEGAL PATHWAYS AS TO THE ‘PRO LIFE’ AND ‘PRO CHOICE’ PROPOSITIONS


Content

TABLE OF CONTENTS

 

CHAPTER ONE

INTRODUCTION AND PROPOSITIONAL SYNOPSIS

1.1      Background To The Study

1.2     Significance of the Study

1.3     Overview of Pro-Life Proposition

1.4     Analysis of Common Ground and Conflict Areas

 

CHAPTER TWO

COMPARATIVE ANALYSIS OF LEGAL FRAMEWORK

2.1  Introduction

2.2 Outline Of America’s Legal Structure on Abortion

2.3 Outline Of Nigeria’s Legal Structure on Abortion

2.4 Analysis of Political, Religious and Scientific Influence in Nigeria

2.5 Pragmatic Stance in Nigeria

 

CHAPTER THREE

DIRECTIONAL AFFIRMATION FOR PRO CHOICE PROPOSITION

3.1     Introduction

3.2     Critical Evaluation of the Nigerian Legal Structure

3.3     Global Alignment as To the Pro Life and Pro Choice Debate

3.4     Personal Perspective and Recommendation as To the Adoption of Pro Choice Proposition

 

CHAPTER FOUR

SUMMARY AND CONCLUSION

4.1 Summary

4.2 Concluding Remark

BIBLIOGRAPHY

INTERNET SOURCES

 

 

 

 

 

CHAPTER ONE

INTRODUCTION AND PROPOSITIONAL SYNOPSIS

1.1     BACKGROUND TO THE STUDY

The act of abortion borders around the deliberate termination of a human pregnancy,[1] most often performed during the first 28 weeks. However, it may also be stated to mean the expulsion of a foetus from the womb by natural causes before it is able to survive independently.[2] As mentioned, it may occur either from natural causes spontaneously,[3] or through inducement[4] and the intentional expulsion has formed the basis of the global discussion concerning the issue.

Abortion, which is relatively a medical term, has evolved today into a debate hovering around a socio-legal sphere.[5] Therefore, it considers the question as to whether it should be treated mainly as an issue of personal liberty as against the level of interference by the state. In other words, should it be deemed right or wrong to deliberately put an end to a pregnancy and do away with the foetus? Does a woman have complete control over her body or does the state have a responsibility which can truncate to a large extent, her right over her person? Also, should the process of abortion be penalized or permitted and to what degree?

As the topic states “A Directional Assessment of Suggested Legal Pathways as to the ‘PRO LIFE’ and ‘PRO CHOICE’ propositions,” this paper duly examines these two major viewpoints relating to the abortion debate as well as other notable perspectives in order to fully understand the expanded dimension in which the act in itself has taken. The debate has branched out into different aspects including feminism, economics, religion and philosophy, though grounded still, in the area of human rights.

The Federal Republic of Nigeria, in relation to other countries, relatively possesses strict and outdated abortion laws and it is important to review them as to whether such laws should be revised and changed or should remain the same. For instance, in England, Scotland and Wales, under the Abortion Act of 1967,[6] abortion is legal up to a period of twenty-four weeks. There is no time limit however, if there are fetal abnormalities or if a substantial risk to the woman’s life, physical and mental health is posed.[7] Such an act must also be carried out in a hospital or licensed clinic and two doctors must agree that it would cause less damage to the woman’s physical or mental health over and above continuing the pregnancy.[8] On the other hand, in Northern Ireland, as governed by Sections 58 and 59 of the Offences Against the Person Act 1861 and Sections 25 and 26 of the Criminal Justice Act (Northern Ireland) 1945, abortion must be performed in good faith to preserve the life of the mother and to alleviate any long term damage. Focus will however be placed on a comparison to the American legal framework in order to properly evaluate the evolution and development of the laws concerning the issue and the lack municipally.

The state of our economical and medical system will be considered as well as the general opinion of what the citizens themselves deem necessary in order to properly address the issue. Asides from that, the reality of the situation will also be measured and not ignored as the laws should rightly reflect the spirit of the people[9].

The global edification will also be examined and placed in contrast on a variety of levels to proper scrutinize the issue in terms of the societal standards, level of liberty and territorial delimitations. It also seeks to provide a pointer, as to the more appropriate and beneficial trail to be followed after a proper consideration of the possible outcome of both options.

It is my desire that this paper will create the necessary awareness and exposure as to the concept of abortion which has long been in neglect and in want of prioritization. Attention will also be paid to the grave matters surrounding the issue and the consequences of its lack of regard while adequately providing a proper recommendation for our country so as to pave the way for a proper regulation of the process.

1.2 SIGNIFICANCE OF THE STUDY

This study is aimed at providing an understanding as to the evolution and basis of the various philosophical theories, landmark cases, legal elements and other notable contributors surrounding the abortion debate. The area of abortion and human rights is very important as it deals with human life and the level of interference between the person and the State. However, to a large extent, it is prejudiced and avoided in discussion municipally and it is imperative to take steps to analyze and examine the concept.

Furthermore, it will also ascertain and examine the realistic practice of abortion in Nigeria, notwithstanding the legal enactments currently in place as well as the support for elimination of discrimination against women and an advocacy of rights accorded them as such. A beneficial direction to be adopted in Nigeria pertaining to the issue will also be given, with adequate contemplation as to the methods by which the accommodation of such direction can be achieved.

1.2  OVERVIEW OF THE ABORTION DISCUSSION

The earliest practice of abortion is evidently recorded[10] to have occurred since the ancient times, dating back to the pre-modern era of the late bronze age. This is with regard to the specified fines in the Code of Hammurabi[11] propounded by the King of Babylon, for intentionally causing miscarriage to a woman through assault. Religious courts in India also prescribed penalties for a woman who procured an abortion and excommunication for a priest who provided such[12].

 

Generally, the primeval methods employed were quite medicinal and physically inclined as against surgical procedures of the modern age. Activities such asbattery, girdle tightening, diving, climbing, weightlifting and strenuous labor were commonly used and other forms like fasting, heating the abdomen and bloodletting were also drawn in.[13] Few surgical attempts were however documented as to the extraction of the fetus but were believed to have been uncommon, due to sparse reports of such accounts.[14]

 

The Greeks and Egyptians also developed many concoctions using plants and herbs as contraceptives and abortifacients. Such would include silphium,[15] birthwort[16] and a mixture of rue, egg and dill.[17] These formulae were shared with the Romans who believed, alongside the Jews, that no right was accorded a fetus inside the womb until it was born.[18] However, both Jews and Romans had diverse views regarding the issue as the former practiced it on a minimal scale. It was not until the A. D. 400s, that St Augustine[19] openly condemned the use of abortion as he was more in support of only performing it on women in whom their fetuses had died in utero.Augustine presumably influenced the Catholic Church and its views on abortion and contraceptives.[20]

 

Consequently, with the modern era and the advancement of science and technology, surgical procedures were developed,[21] though affected with the bane of criminalization especially under the Victorian influence[22] and in the United States.[23] France however, saw it as a last resort for pregnant and unmarried women, though readapted for women generally as a backup plan for ineffectual contraceptives.[24]

 

Hence, this study is premised upon a number of propositions and theoretical assessments resulting from the various conflicting sides taken on the abortion debate from the beginning of its practice to the world in its current state. The Pro-Life and Pro-Choice are such major opinions, whilst the Philosophical, Libertarian and Legal perspectives which contribute greatly, will also be examined.

1.3.1 OVERVIEW OF PRO-LIFE PROPOSITION

This theory represents a belief in sanctity of human life and its preservation at all costs. It is principally a ‘Right to life’ movement which has sought to uphold such right even from the earliest stages of its formation as it has placed a high value on all human life, whether young or old. Even though the act of abortion is etched in our history, this movement is deemed an offshoot of a long-standing alignment to the opposition of abortion.

In essence, the Pro-Life is premised upon conservation of life even at its earliest stages. The determinant factors as to when the human life actually begins forms part of the basis of the abortion debate in itself. According to the Pro-Lifer’s view, such begins at conception[25]. From this moment, mother and child are deemed separate from one another, as the unborn child, though living inside its mother is not the same person as her.  Scientific records have proved such;

It is the penetration of the ovum by a spermatozoa and the resultant mingling of the nuclear material each brings to the union that constitutes the culmination of the process of fertilization and marks the initiation of the life of a new individual.[26]

Furthermore, terms such as ‘embryo’ and ‘fetus’ refer to different stages of the development of the baby and not just a mere atom as there is a heartbeat right from the moment of conception. By this time, all the features that will eventually develop are already embedded in the fetus and therefore, by default, the termination of such is the termination of life.[27]

The argument also spans towards fundamental rights available to all humans and an emphasis on its accessibility.[28]They believe that the unborn should be accorded the full degree and entirety of rights which would include therein; the right to life.[29] Even so, there should not be any ‘freedom’ as to a choice of doing away with the life of an innocent person. One’s right of control over their body can be exercised fairly, just as long as it does not impede the next man’s right to live[30].

The fact that government intervention should be limited on the basis of the right to privacy is also challenged by this group especially in the United States where such right is not expressly contained in the constitution.[31] They believe that the government, to a large extent is responsible for every individual in the State and has the duty to uphold its life under reasonable circumstances.

Moreover, it is often complained that there are many societal issues involved in raising unwanted children.[32] However, according to the Pro-Life, there is no such thing as an ‘unwanted child’ for someone, somewhere may want the child one is willing to give up.[33] Due to this, there has been offered, an alternative direction; adoption. If one cannot bear to raise a child then the child can be given up to be raised in a better home. Some also state that “a baby is a blessing no matter the circumstance,” [34] so if it not seen as a ‘blessing’ to those who are unwilling to raise it, they can choose to turn it over to those who would.

Concerning the health and safety of the woman and child, the Pro-Lifers believe that the effect of legalizing of abortion is somewhat overrated.[35] This is due to the fact that those for choice label death, even if it is that of the woman, as the biggest risk of childbirth but in reality, are in support of causing death to another person.The entire perimeter is baffling, as it is seemingly unfair to fear for the life of the woman and not give any consideration the innocent life residing inside her.

Also, abortion in itself is not necessarily a safer and more convenient procedure than childbirth.[36] Many women still die from abortion even if it is legalized and well regulated. It is infact,[37] a leading cause of various medical complications affecting childbearing in later years and significantly increases the risk of breast cancer. The procedure is also usually a painful one for both mother and child physically and mentally with the possibility of psychological damage to the woman.[38]

All in all, abortion, as deemed by the Anti-Choice, is not directly in the interest of that of the woman. Instead, it can be seen as a means of the government to make huge financial gains by persuading people to follow in their direction.[39] It also reduces the value attached to the family asan institution and has led to a world where human pesticides are being created and used on a daily basis to do away with innocent lives.[40]

1.3.2 OVERVIEW OF PRO-CHOICE PROPOSITION

Generally, there has been a move towards women being in control[41] of their lives in terms of going to school, seeking jobs and making important life decisions on their own as opposed to the patriarchal form of society where they were seen as being second and inferior to men. Their independence was also greatly emphasized[42] and this eventually spilled over into making the choice as to how many children they would rather have and whether or not to carry such a pregnancy[43].

One premise of this justification is due to the long-term effects[44] that could befall a child who was not properly mothered which could take shape psychologically, mentally and even physically. This in turn could lead to societal issues as there would be an overflow of ‘nuisances’ that could cause more harm than good.[45] The Pro-Choice movement seeks to validate and support the notion that a person has a ‘choice’ and a ‘say’ concerning the children they wish and wish not to have.[46] If an adult decides that he or she is uninterested in having a child, there should be a clear path, with no obstacle to making such a choice because the adverse effects usually outweigh the good.[47]

With regard to the foundational issue as to when human life actually begins, the Pro-Choice are more concerned with when legal personhood actually begins.[48] For instance, the Anti-Choice base their belief of a fetus being a human due to its already formed DNA and human tissue.[49] However, abiding by this argument, if a flake of dandruff falls off one’s hair, since it contains DNA and human tissue, it should then be considered human and enough to sustain itself into becoming a fully grown human life, separate and distinct from the person it fell out of.[50] If this is not of validity and accuracy, a zygote should not be considered as human life.

More so, a fetus cannot engage in rational human perception, neither can it perform functions on its own, it does not look visibly human and may not necessarily survive outside the body of its host.[51] At this stage of development, one is not conscious enough to know it has been conceived and will not know when it has been eliminated as the brain which has been labeled[52] the seat of personhood is not fully developed by that time.Neither its existence is recognized by it nor will its non-existence be regretted by it. Worrying about such will only deliver one into an irrational dimension which has neither tail nor head. Nevertheless, at conception, such form cannot be rendered a ‘complete’ human as there are many stages of development the fetus must embark on before it can validly be declared a ‘human being.’[53]

Furthermore, it should not be considered ‘fair’ and ‘just’ to use another person’s body to survive against their will.[54] No one should have a ‘right to life’ which is exercised at the expense of another as it is as grave as threatening the host’s life,[55] for childbirth in itself, is a near fatal procedure for every woman. In fact, the risk of dying from childbirth is about 14 times higher (8.8 in 100,000) than abortion which is 0.6 in 100,000[56]which makes abortion a less lethal procedure than childbirth especially when performed by trained individuals.

Besides, reproductive freedom should be recognized[57] as every human should have control over what happens to their body. If one decides to risk their health either by having an abortion or a child,the choice should be theirs and not for the State or a group of uninvested activists.[58]One’s inalienable right to privacy should be balanced as against interference by the State for it is no one’s business what decision a woman makes with her physician and it is not for the government to intrude unless it is necessary.[59]Moreover, the pain of childbirth, which has been measured[60]on both physiologic and psychosocial planes, should not be imposed on a person only for them to give up the child at the end of the day.[61]

The Pro-Choice also defend[62] abortion on the basis of ineffectual contraceptives. They insist[63] that reproduction is not the sole reason for sex as it is also for pleasure and strengthening bonds between partners. Not everyone who has sex is ready and willing to be a parent and such cannot be forced upon him, therefore, it is reasonable to seek an abortion where the other means of prevention has failed and such is the last resort.

Nevertheless, there has always been and there will always be abortions,[64] legal or not. Thus, it is best to support it openly to prevent back alley abortions and the risks associated with it.[65] The Pro-Choice also suggest[66] that abortion should be made available and affordable to all classes of people in society especially with relation to financial status as anyone and everyone may need it at some point. These classes of society should also be properly educated about the entire scope and the consequences that may be attached to it through their schooling, counseling and the media as well.

Conclusively, balancing the scale with regard to one’s personal interest as against societal intrusion is necessary as consideration should be given to a scenario whereby those who are against abortion are not likely to personally aid one in raising their child. Therefore, they should have little or no say as to whether or not you should have the child in the first place.

1.3.3 LANDMARK DECISION IN ROE V WADE

Prior to the decision in this case, many states in the USA had declared abortion illegal in their statutes with the exception of its adoption in lieu of preserving the woman’s life if faced with grave danger.[67] However, this did not necessarily hinder women from procuring abortions through illegal means, instead, exposed them further to harm due to the absence of proper regulation of such procedures. Many unlicensed practitioners were involved in these appalling acts, especially in unsanitary conditions, which often resulted to great detriment on the woman’s part, leading to infection, hemorrhage, and even death.[68]

With reference[69] to the legal development of the right to privacy, it was given a deeper interpretation, as to the protection of a person’s “bodily integrity, identity, and destiny” and allowing freedom from undue manipulation by the government. Slowly but surely, such laws that prevented the use of contraception were decided against, especially in the 1965 and 1972 cases of Griswold v. Connecticut[70]and Eisenstadt v. Baird.[71]These cases buttressed the opinion that the government is in no position to decide for the individual their choice of children.

Hence, the revolutionary case of Roe v Wade expanded the right to privacy as to not only a choice of whether or not to create a child but to be enabled to end such a process, even though it has already begun. In its ruling, the court documented and acknowledged that the provision of the right to privacy under the constitution“is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy”[72]

In this case,[73] Norma McCorvey; unmarried and from Dallas, Texas who was regarded by her alias, ‘Jane Roe’ sought to terminate her pregnancy and brought suit against Henry Wade, the Dallas County prosecutor to prevent him from enforcing the anti-abortion laws in place at that time. The suit was brought in 1970 and was still underway by 1971 when Roe had given birth to her child and put it up for adoption. This case was challenged as to its being moot, due to its nature and Justice Blackmun noted that “Our law should not be that rigid,” and he stated further “pregnancy provides a classic justification for a conclusion of non-mootness. It truly could be “capable of repetition, yet evading review.” Thereafter, the court tilted towards Roe’s assertion and a host of other contributions such as cases, philosophical and religious writings, so also the anti-abortion laws and a conclusion as to displacement of such laws was reached. The court also pronounced that indeed, the right to privacy was being violated.

However, the protection of the right to privacy in itself was also challenged due to the fact that there was no express provision for it in the constitution. This was then defended by an analysis of earlier judicial decisions such as Boyd v. United States[74], Union Pacific R. Co. v. Botsford[75], Terry v. Ohio[76], Katz v. United States[77] and a host of many others where Blackmun further cited that “the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.”

In cognizance to the case in question, he also noted that;

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the district court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.

 He stated that the government’s intrusion posed a lot of burden to an already pregnant woman and allowing the possibility of impediments mentally, physically, emotionally and financially. As a breakdown, Blackmun believed that one cannot force a woman to carry a child she does not want for the adverse effects will affect not just her, but the society at large due to the psychological state of both the woman and her child and such difficulties encountered such as lack of care and a disadvantaged motherhood.

Therefore, a standardized format to regulate abortion was constructed by Blackmun, permitting the State’s intervention only during the third trimester. He stated[78] that at this point, it could be forbidden by the State, “except when it is necessary to preserve the life or health of the mother,” because “the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications.”

So also on the same day, the other case of Doe v Bolton[79] modified Roe v Wade, enunciating that the state has no right to limit abortion sought on the basis of health. The court went on to explain ‘health’ as “all factors – physical, emotional, psychological, familial, and the woman's age – relevant to the well-being of the patient.”[80] This basically expanded such a right to contain virtually any and every reason to choose an abortion. Therefore, the woman and her physician had sole control over her womb at the first trimester, whilst at the second trimester; the state had a right but not a duty to regulate it for the protection of the pregnant woman. 

The immediate effect of the decision reached in Roe v Wade was not particularly controversial and did not cause an upheaval since states such as California and New York seemed to align with Blackmun’s dictum by reviewing their abortion laws.[81] It also appeared[82] as a platform used to expand human rights and empower women since awareness was taking its toll and it seemed like a form of liberation from patriarchal laws in society.[83] Indeed, the outcome of the regulation of abortion resulted in the preservation of many lives since the procedure was now safe, and conducted by licensed practitioners in approved facilities and hospitals.[84]

Consequently, with cases such as Planned Parenthood of Southeastern Pennsylvania v. Casey[85], religious groups and Anti-Choice supporters, the decision in Roe v Wade has been challenged and restricted in many ways[86]. However, the three part standard of Justice Blackmunremained and is still verified as protection of the fundamental right to privacy.

 

 

1.3.4 EXAMINATION OF PHILOSOPHICAL POSITION

Various notable philosophers and schools of thought across the globe have penned out their views and opinions concerning the abortion debate. They do not necessarily agree with one another, but have nevertheless, lent a hand in shaping the issue of abortion and where it is today.

Judith Jarvis Thomson is one major philosopher who has expressed a widely accorded view with respect to the dilemma associated with abortion. This, she did by enlisting[87] the general Pro-Life arguments, considering their premise, and refuting them. She criticized their view about labeling the fetus a human being by comparing the scenario to that of an acorn and an oak tree. She stated that she did not hold such a view, since an acorn cannot be deemed to be an oak tree and even described such area as a ‘slippery-slope’ argument which she did not wish to go on with.[88]She also mentioned[89] that carrying a fetus is similar to being a Good Samaritan; it is not a mandatory duty that one must fulfill, instead, one could do so out of their own volition. She came up with the ‘Violinist theory’[90] which has been criticized and praised in a number of ways.[91]

Whilst the Pro-Life and Pro-Choice keep going back and forth as to whether or not the fetus is a human being or a blob of tissue, Thomson believed that was not the main issue. She admitted that even if the fetus is a human being, what then is the next step to take? Whose right to life should outweigh the other? An illustration was then painted with respect to this issue;

You wake up in the morning and find yourself back to back in bed with an unconscious violinist. A famous unconscious violinist. He has been found to have a fatal kidney ailment, and the Society of Music Lovers has canvassed all the available medical records and found that you alone have the right blood type to help. They have therefore kidnapped you, and last night the violinist circulatory system was plugged into yours, so that your kidneys can be used to extract poisons from his blood as well as your own. The director of hospital now tells you, “Look, we’re sorry the Society of Music Lovers did this to you-we would never have permitted it if we had known. But still, they did it, and the violinist now is plugged into you. To unplug you would be to kill him. But never mind, it’s only for nine months. By then he will have recovered from his ailment, and can safely be unplugged from you.” Is it morally incumbent on you to accede to this situation? No doubt it would be very nice of you if you did, a great kindness. But did you have to accede to it?[92]

Even though the violinist has a right to life, does his outweigh yours? Even so, in this case, you were kidnapped which was against your will. What about children borne out of rape? The choice should be that of the mother’s and not for anyone else as to what to do with her body.

Critics of Thomson’s theory have described the Violinists theory as a case of ‘letting him die’[93] as opposed to intentionally killing the baby. What they fail to understand is that no matter the direction taken, both parties’ lives are at risk and a mother’s abortion of her child cannot seriously be considered as murder. One cannot be coerced to kill oneself to save the life of another. You do not have to allow the Violinist to be continuously strapped to your back and pulling the plug on him should not be considered as murder. This can also be extended to the area of self defense as well, for it played a part of immense contribution to the subject.

Critics also mentioned[94] that the scenario is flawed and cannot be generalized since the reader appears kidnapped and therefore does not seem to avail those who have consensual sex. The kidneys and womb are different and perform separate functions which are completely diverse from one another. Also, a woman carrying a child is not necessarily bedridden for nine months but usually mobile and the principles justifying a disconnection from the Violinist may not necessarily cover that of the mother’[95] Thomson still maintains that the scenario painted is adequate enough and share the same crux. She also emphasizes on a woman’s right to choose, believing it is not for a third party to make the decision for you.

 Mary Anne Warren also offered her opinion and provided a distinction between the ‘moral’ and ‘genetic’ status of a human being.[96]In the moral sense of the word, she described it as “a full-fledged member of the moral community, who is also a member of the human species.”[97] Whilst on the other hand, in the genetic sense “any individual entity that belongs to the human species.”

Warren emphasizes the distinction and states that there can be one without the other; a human who exists in the genetic sense and not in the moral sense but not necessarily vice versa. Warren likened such to an adult who is comatose and has been stripped of any and all consciousness or an anencephalic child who is born without any senses. Just because their genetic features can be identified does not mean they have access to rights or can still be termed as persons.

 

Warren then stated that there are criteria to be met before one can be given a status of personhood and it seems that a fetus does not meet such requirements. Warren then gave her illustration as to the issue;

Imagine, then, a space traveler who lands on a new planet, and encounters organisms unlike any she has ever seen or heard of. If she wants to behave morally toward these organisms, she has somehow to determine whether they are people and thus have full moral rights, or whether they are things that she need not feel guilty about treating, for instance, as a source of food.[98]

 

Warren suggested certain factors the space traveler would consider to include awareness, reason, ability to communicate, expression of emotions and moral status. However, a fetus does not meet such criteria and can only be termed as genetic humans and therefore not subject to any of the rights available to those of moral persons. This is also means that a woman can choose to end the life of a person who only can be termed ‘potential’ if it will lead to “intolerable mental, physical, and economic cost to themselves and their families.”[99]

 

This theory has been criticized in the sense that Warren’s leading points of her argument seem to promote infanticide, thereby justifying the killing of babies. However, she had foresight and reaffirmed[100] that she is not in support of such, as she stated that newborn babies are virtually humans and a strong moral justification must be provided in order for them to be killed.

 

On the other hand, Don Marquis opposed abortion on the grounds that it would deprive the embryo of a valuable future.[101] He argued that killing would bring terrible harm to the victim consisting of a deprivation of valuable “experiences, activities, projects, and enjoyments”[102] and since an embryo’s future is deemed highly valuable,its carnage would be a terrible thing.

Marquis’ argument has however been pronounced flawed[103] as it would also reach the same conclusion that using contraceptives is wrong since a sperm and ovum joined together have a future like ours. Moreover, what is the guarantee of a valuable future, especially to a child who is about to be brought up in a home where he was forced upon his parents?

 

Also, Libertarianism is a political philosophy whose central objective is liberty and autonomy.  Generally, Libertarians seek to promote individual liberty over and above interference by the State.[104] They try to emphasize personal independence and freedom in many aspects, especially in light of decision making, association and also in the political realm. However, within this school of thought, there are oppositions based on the extent of State and Individual power particularly with regards to Left and Right-Libertarianism respectively. From this, it is gathered the term ‘Libertarianism’[105] is used to describe the basic and general principles associated with freedom even though they may differ on a more intrinsic level. The issue of abortion is not an exception to the areas which possess conflicting views. Some libertarians[106] endorse access to legal abortion whilst some oppose it.

 

Philosopher Murray Rothbard opined that “No being has a right to live, unbidden, as a parasite within or upon some person’s body”[107] and a woman should have the opportunity to “eject the fetus from her body.” Rothbard however explained that there is a fine line drawn between a fetus and a baby as soon after it is born, all rights accorded to human beings are given to it and is deemed a separate entity from the mother. Therefore, it is illegal to infringe upon such rights in any manner, through murder, mutilation and so forth. He also believed that individual states should be able to create their own abortion policies without undue interference by the government at the federal level.

 

Ayn Rand believed that a fetus having the right to life was “vicious nonsense.”[108] She also argued that until a child is born, it can have no rights; therefore, a fetus should not be defended in such a light. On the part of the mother, who possesses full rights, she groups abortion as a moral right and states that it should be left solely to the discretion of the mother, in which her wishes should be respected.

 

In Walter Block’s opinion[109], he created a sort of in-between ideology other than the ‘Pro-Life and Pro-Choice’ which he termed ‘Evictionism.’ Under this, he separated the act of abortion into two distinct parts, illustrating that the eviction of the fetus from the womb and killing of the fetus are not the same thing. In consideration to the areas of trespass and murder, which Libertarians generally do not support, he opposed the second act. However, he defended the use of legal abortion where the fetus cannot survive outside the womb or  when the woman has proclaimed that she can no longer keep custody of the fetus and no one else has ‘homesteaded’ the right by offering to care for it.

 

According to Benjamin Tucker,[110] he viewed a child as the property of its mother from the time it is in the womb till the moment of emancipation, where the child can now make contracts and live on their own. He resolved that a mother could dispose of her ‘property’ according to her whim and ‘parental cruelty’ was of non-invasive character which should not be prohibited.

 

On the other hand, the Pro-Life version of this movement[111] namely the ‘Libertarians for Life’ argue that all humans, and even those in the pre-natal stages of development are entitled fully to rights as such do not differ from person to person via age and size. Jewish general practitioner, Doris Gordon, of the group, believed[112] that the Libertarian ideology required an obligation to children and such must be upheld in order to keep the ethical principle of the non-aggression axiom. This principle exists to expressly forbid an opposition to and violation of the Libertarian’s concept of rights. Gordon also stated[113] that even pregnant women were not exempt from following such a principle as such obligations come with human nature and are acquired at conception.

Other philosophers such as  Stephen D. Schwarz and R.K. Tacelli in their work “Abortion and Some Philosophers: A Critical Examination,” so also Andrew C. Varga in his “The Main Issues of Bioethics”and Sidney Callahan in her “Abortion and the Sexual Agenda.” have also provided widely recognized arguments with respect to the issue of abortion.

 

1.4 ANALYSIS OF COMMON GROUND AND CONFLICT AREAS

Generally, the two major perspectives as to the issue of abortion are deemed parallel but however, on certain occasions, find a meeting point. Save for their opposing views, there are certain policies and situations that both sides would consider the same decision and reach a unified verdict.

 

Both propositions would consider grave risk to the woman’s physical health and a possibility of death as the basis of an approval of abortion.[114]According to a poll conducted by Gallup, it was recorded[115] that 69% of Pro-Lifers gave in as to when the woman’s life was endangered and 68% as to her physical health. Also, in such a case where the pregnancy was caused by rape or incest, 59% of the Pro-Lifers were in support as was recorded[116] a 32% difference between both schools. On the other hand, both sides strictly opposed abortion in the case of Partial-Birth Abortions[117] as it would prevent serious threat to the woman’s health.[118] Performing it in the third trimester is also not supported by both groups as 79% of the Pro-Choice opted against it.

 

However, the question of life and when it begins still remains at variance[119] between the two positions, so also the area of societal and social concerns as the Pro-Life strongly reject issues like financial burden[120] as a rationale for abortion. Both also interpret the idea of fundamental rights differently[121] and do not share the same view as to the effect of general standards of health and safety on the issue of abortion.[122]

 

 

 

 

 

 

 

 



[1]Oxford Dictionary of English. (2003) Oxford: Oxford University Press.

[2]Ibid.

[3] Thomas C. (1993)Taber’s Cyclopedic Medical Dictionary, Edition 18. F. A Davis.

[4]Ibid.

[5] Kristin L. (1984)Abortion and the Politics of Motherhood. California: University of California Press.

[6]Abortion Act 1967 (c. 87). United Kingdom: HMSO.

[7]Marie Stopes International. What is the UK Law on Abortion? [Online] Available from: https://www.mariestopes.org.uk/women/abortion/-facts/what-uk-law-abortion

[8] NHS (2016). Abortion. [Online] NHS. Available from: http://www.nhs.uk/conditions/Abortion/Pages/Introduction.aspx

[9]Rodes R. E. (2004). On the Historical School of Jurisprudence, Scholarly Works, Paper 858.

[10] S. Krason, and W. Hollberg. (1984) The Law and History of Abortion: the Supreme Court Refuted

[11]The Code of Hammurabi. Sec 209-212

[12] C. Damian. (2010) Abortion from the perspective of Eastern Religions: Hinduism and Buddhism, Romanian Journal of Bioethics,8 (1), January – March 2010

[13] Devereux G. (1967) A typological study of abortion in 350 primitive, ancient and pre-industrial societies. In Harold Rosen. Abortion in America: Medical, psychiatric, legal, anthropological, and religious considerations. Boston, Massachusetts: Beacon Press.

[14]Doerfler, Stephanie. Abortion. Retrieved from: https://en.m.wikipedia.org/wiki/History_of_abortion

[15] Pliny. XXII, Ch. 49. Retrieved from: https://en.m.wikipedia.org/wiki/History_of_abortion

[16] Riddle J. M. (1999) Eve’s Herbs: A History of Contraception and Abortion in the West. Cambridge: Harvard University Press.

[17] Hurst W J. and Hurst D. J. Medicina Antiqua, Welcome Trust Centre for the History of Medicine at UCL. [Online] Available from: http://www.ucl.ac.uk/~ucgajpd/medicina%20antiqua/sa_rue.html

[18]Lopez R. (2012) Perspectives on Abortion: Pro-Choice, Pro-Life, and What Lies in between, European Journal of Social Science, 27(4), pp. 511-517.

[19]Schaff P. Nicene and Post-Nicene Fathers. Hendrickson Publishers.

[20] McFarlane D. and Meier K. J. (2001) The politics of fertility control. New York, NY: Seven

Bridges Press.

[21] Mohr C. J. (1978) Abortion in America: The Origins and Evolution of National Policy,1800-1900. Oxford University Press.

[22]Malicious Shooting or Stabbing Act 1803 (Sec 1-2) [Repealed]

[23] Alford S. M. (2003) Is Self-Abortion a Fundamental Right? Duke Law Journal, 52 pp.1011-1029.

[24] McLaren A. (1978) Abortion in France: Women and the Regulation of Family Size 1800-1914, French Historical Studies, 10(3) pp. 461-485.

[25]Turner O. G. and Balch M. S. Defending the Pro-Life Position & Framing the Issue by the Language We Use,  National Right to Life Committee [Online]Available from: http://www.nrlc.org/uploads/WhenTheySayPacket.pdf

[26] Paten B. M. (1968) Human Embryology, 3rd edition, New York: McGraw Hill.

[27] Alcorn R. C. (2000) Pro Life Answers To Pro Choice Arguments; Expanded and Updated. Multnomah Publishers.

[28] Beckwith F. J. (2007) Defending life: A Moral and Legal Case against Abortion Choice. New York, NY: Cambridge University Press.

[29]Turner and Balch, loc. cit.

[30]Boonin, D. (2003) A Defense of Abortion. New York, NY: Cambridge University Press.

[31]Ely J. H. (1973) The Wages of Crying Wolf: A Comment on Roe v. Wade. Faculty Scholarship Series, Paper 4112. [Online] Available from: http://digitalcommons.law.yale.edu/fss_papers/4112

[32] Farber, N. (2003) Adolescentpregnancy: Policy and prevention services. New York, NY:

Springer Publishing Company.

[33] Alcorn, loc. cit.

[34] Bowles J. I. Quote. [Online] Retrieved from: http://www.firstcovers.com/userquotes/37331/a+baby+is+a+blessing.html [Retrieved 23rd July 2016]

[35]Turner and Balch, loc. cit.

[36] Alcorn, loc. cit.

[37] Roy A. et al. (2014) World Journal of Pharmacy and Pharmaceutical Sciences.3(6) pp. 1213-1226

[38]Tyrer L. B. and Grimes D. (1989) The Surgeon’s General Report on the Public Health Effects of Abortion: The Suppressed Final Draft – An Overview. Unpublished paper.

[39]Saletan, W. (2004) Bearing right: How conservatives won the abortion war. University of California Press.

[40] Alcorn, loc. cit.

[41] UN General Assembly, UN Women (2010) Women’s Empowerment Principles: Equality Means Business. [Online] Available from: http://www.unwomen.org/en/partnerships/businesses-and-foundations/womens-empowerment-princples

[42] Modern History Source Book: Seneca Falls. The Declaration of Sentiments 1848.[Online]Available from: http://sourcebooks.fordham.edu/mod/senecafalls.asp

[43] UN Women, loc. cit.

[44] BBC Ethics Guide. Reasons for Abortion. [Online] Available from: http://www.bbc.co.uk/ethics/abortion/legal/when_1.shtml [Archived]

[45] Jacob K. (2006) Abortionunder attack: Women on the challenges facing choice. Seal Press.

[46]Lowein L. (2016) 10 Arguments: For and Against Abortion. [Online] Available from:http://womensissues.about.com/od/reproductiverights/a/AbortionArgumen.htm

[47] King C. (2010) 10 Worst Abortion Myths and How to Refute Them. [Online] Available from: http://msmagazine.com/blog/2010/04/23/10-worst-abortion-myths-and-how-to-refute-them/

[48] Reza F. (2005) A Woman’s Right to Choose. [Online] Available from: http://www.abortionrights.org.uk/a-womans-right-to-choose/

[49]Turner and Balch, loc. cit.

[50] Arthur J. (2001) Persoonhood: Is a Fetus a Human Being? [Online] Available from: http://www.prochoiceactionnetwork-canada.org/articles/fetusperson.shtml

[51]Ibid.

[52] Bennet M. (1990) Personhood From a Neuroscientific Perspective. In: Doerr E and Prescott J. (eds.) Abortion Rights and Fetal Personhood. 2nd ed. California: Centerline Press, pp. 77-79.

[53]Conditt C. M. (1990) Decoding Abortion Rhetoric: Communicating Social Change. Urbana and Chicago: University of Illinois Press, pp. 85-89.

[54]McDonagh L. E. (1996) Breaking the Abortion Deadlock: From Choice to Consent. New York NY: Oxford University Press.

[55] Farber, loc. cit.

[56] Raymond E. G. (2012) The comparative safety of legal induced abortion and childbirth in the United States. [Online] Available from:http://www.ncbi.nlm.nih.gov/pubmed/22270271

[57] Schoen, J. (2005). Choice and coercion: Birth control, sterilization, and abortion in public health and welfare. Chapel Hill, NC: The University of North Carolina Press.

[58]Saletan, loc. cit.

[59] Roe v. Wade, 410 U.S. 113, 153 (1973).

[60] Lowe N. K. (1996) ThePain and Discomfort of Labor and Birth. [Online] Available from: http://www.jognn.org/article/S0884-2175(15)33314-1/pdf

[61] Campbell L. (2016) Let’s Be Real, Adoption Is Not the Solution to Abortion. [Online] Available from: https://mom.me/lifestyle/27858-adoption-not-solution-abortion/

[62] Arthur, loc. cit.

[63] Robyn (2016) Your Pro-Choice Cheat Sheet: How to Respond to Anti-Abortion Arguments. [Online] Available from: http://urge.org/your-pro-choice-cheat-sheet-how-to-respond-to-anti-abortion-arguments/

[64] Brant A. (2016) How Abortion Politics TRAP Women. [Online] Available from: https://thesocietypages.org/feminist/2016/07/12/3128/

[65] Topic Discussion. If abortion is made illegal, will women die in back alleys? [Online] Available from: http://www.debate.org/opinions/if-abortion-is-made-illegall-will-women-die-in-back-alleys

[66] National Abortion Rights Action League Pro-Choice America 501(c)(4)

[67] Cassidy K. (2006) The Road to Roe and the Roots of the Pro-Life and Pro-Choice Movement. NRL News, 33(1) pp. 8-10.

[68] Dellinger W. and Sperling G. B. (1989) Abortion and the Supreme Court: The Retreat from Roe v. Wade, 138 U. PA. L. REV. 83, 117 [Online] Available from: http://scholarship.law.upenn.edu/penn_law_review/vol138/1ss1/8

[69] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 927 (Blackmun, J., concurring and dissenting)

[70] Griswold v. Connecticut, 381 U.S. 479 (1965)

[71]Eisenstadt v. Baird, 405 U.S. 438 (1972)

[72] Roe v. Wade, 410 U.S. 113, 153 (1973)

[73]Ibid.

[74] Boyd v. United States, 116 U.S. 616 (1886)

[75] Union Pacific R. Co. v. Botsford, 141 U.S. 250 (1891)

[76] Terry v. Ohio, 392 U.S. 1 (1968)

[77] Katz v. United States, 389 U.S. 437 (1967)

[78]Finkelman P and Urofsky M. I. (2003) Roe v. Wade, in Landmark Decisions Of The United States Supreme Court. CQ Electronic Library. [Online] Available from: http://library.cqpress.com/scc/lndmrk03-113-6441-348238

[79] Doe v Bolton 410 U.S. 179 (1973)

[80] Roe v. Wade, loc. cit.

[81]Finkelman and Urofsky, op. cit.

[82]Brown v. Board of Education, 347 U.S. 483(1954)

[83]Finkelman and Urofsky, loc. cit.

[84]Boonstra H. D., Gold R. B., Richards C. L. and Finer L. B. (2006) Abortion in Women’s Lives. New York: Guttmacher Institute.

[85] Planned Parenthood v Casey, loc. cit.

[86]Harris v. McRae, 448 U.S. 297 (1980)

[87] Thomson J. J. (1971) A Defense of Abortion. Philosophy and Public Affairs, 1 (1).

[88] ibid

[89]Hershenov D.  (2001) Abortions and Distortions: An Analysis of Morally Irrelevant Factors in Thomson’s Violinist Thought Experiment. Social Theory and Practice 27(1).

[90] Thomson loc. cit.

[91]Finnis J., Cohen M., Nagel T. And Scanlon T. (1973) The Rights and Wrongs of Abortion: A Reply to Judith Thomson. Princeton University Press.

[92]Thomson loc. cit. pp. 48-49.

[93] John Finnis and Baruch Brody are early examples of this approach. The former’s argument is

in “The Rights and Wrongs of Abortion: A Reply to Judith Thomson.” Philosophy and Public

Affairs. (Vol 2. 1973) p. 141. The latter’s is in his Abortion and the Sanctity of Life: A

Philosophical View. (Cambridge: MIT Press, 1973) p. 30.

[94]Glendon M. A. (1991) Rights Talk: The Impoverishment of Political Discourse. New York: The Free Press.

[95] Bernard N. and Ostling R. N. (1979) Aborting America. Knopf Doubleday Publishing Group.

[96] Warren M. A. (2000) On the Moral and Legal Status of Abortion. In: White J. E. (ed.) Contemporary Moral Problems, p. 156.

[97]Ibid.

[98]Ibid., p. 157.

[99]Ibid., p. 159

[100]Ibid., p. 162.

[101] Marquis D. (1989) Why Abortion is Immoral. Journal of Philosophy 86 (4). For a similar argument (published earlier), see Stone 1987 and 1994

[102]Ibid., p. 190

[103]Sinnot-Armstrong W. (1997) You Can’t Lose What You Ain’t Never Had: A Reply to Marquis on Abortion .Philosophical Studies, 96 pp. 59-72.

[104] Woodcock G. (2004) Anarchism: A History of Libertarian Ideas and Movements. Petersborough: Broadview Press.

[105]Rebonato R. (2012) Taking Liberties: A Critical Examination of Libertarian Paternalism. Palgrave Macmillian.

[106] U. S. Libertarian Party Political Platform (2012)

[107]Rothbard M. N. For a New Liberty: The Libertarian Manifesto. 2nd Ed. Ludwig von Mises Institute.

[108] Rand A. and Peikoff L. (1989) The Voice Of Reason. Penguin Publishing Group.

[109] Block W and Whitehead R. (2005) Compromising the Uncompromisable: A Private Property Approach to Resolving the Abortion Controversy. Appalachian Law Review, 4 (2) pp. 1-45

[110]Watner C. (1975) Spooner vs. Liberty. The Libertarian Forum , 7 (3)

[111] Excerpt on homepage. Libertarians for Life, The Libertarian Case Against Abortion. [Online] Available from: http://www.l4l.org

[112] Gordon D. (1995, 1999). Abortion and Rights: Applying Libertarian Principles Correctly. [Online] Available from: http://www.l4l.org/library/abor-rts.html

[113]Ibid.

[114]Saad L. (2011) Plenty of Common Ground Found in Abortion Debate. [Online] Available from: http://www.gallup.com/poll/148880/plenty-common-ground-found-abortion-debate.aspx

[115]Ibid.

[116]Ibid.

[117] Partial-Birth Abortion Ban Act 2003 117 Stat. 1201.

[118] Poll. Abortion and Birth Control. [Online] Available from: http://www.pollingreport.com/abortion.htm

[119] Reza, loc. cit.

[120]Saad, loc. cit.

[121] Alcorn, loc. cit.

[122]Turner and Balch, loc. cit.

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