Abortion, and the Limits of Law
Something that I struggle with as a Christian politician (particularly one whose primary study is in Ethics) is the question of how much morality should influence law. I know I’m not alone in this; I think we all have ideas about this, even if we haven’t spoken those thoughts out loud. I also know that there are many people who speak their thoughts on this subject, often quite loudly, and quite often around the subject of abortion. Abortion is a touchy political subject, but I want to talk about it not only because it’s the perfect example for a discussion about morality and law, but also because I regret that it happens and want to move the all-too-polarized national conversation about abortion forward. So I’ll begin by talking a bit about abortion and how Canadians tend to talk about it, and then I’ll talk about morality and law in relation to it.
The Politics of Abortion
Probably my first ever political action was when I was about seven years old. My mom took my brother and I with her to stand across the street from the hospital and hold signs with anti-abortion (or pro-life, if you prefer) slogans on them. I must admit that at the time I had no idea what was going on, and spent my time that day counting cars as they drove up the hill. Even so, I was raised with a strong notion of the sacredness of life, and particularly human life. In the debate section of my grade 12 English class I was selected to present the pro-choice side of the argument, but my research convinced me more than ever that abortion was wrong: it kills babies, but it also hurts women (sometimes physically, often psychologically), and it has a social impact on our collective ideas about the sacredness of life. Since grade 12 I’ve learned that the realities involved are much more complicated than the arguments made in both my grade 12 debate and in the national debate, but I still can’t think about abortion without sadness, regret, and even a little mix of anger and sickness. When I decided to join the Green Party, I had to reconcile my views with the Green Party policy (which I’ll talk about below).
The national debate between pro-life and pro-choice is nasty, to say the least. There are no other issues that divide Canadians like this one. People on both sides of the argument are often quick to demonize each other and misrepresent each other’s position. Even the names of the “sides” are highly politicized: “pro-choice” very carefully does not say “pro-abortion”, because even the strongest pro-choice activist would never say that an abortion is a positive thing in itself; yet this doesn’t stop many people from depicting their view as being pro-abortion, and some pro-choice rhetoric comes very close to suggesting that an abortion is in fact a good thing. On the other hand, “pro-life” makes a strong political statement: positively, it implies a strong commitment to the sacredness of human life and is often used outside of the abortion debate, such as in the debate about assisted suicide; and negatively, it implies that those who oppose this view are anti-life. The polarized nature of the whole debate allows both sides to define themselves in such a way as to imply that the other side of the debate is the direct opposite, even if that’s a false choice (after all, surely it’s possible to recognize abortion as an occasionally necessary evil – a third option that neither side seems eager to embrace). This argument has been deadlocked for decades, and I don’t see much hope of moving forward unless we can find some common ground.
Politically speaking, the polarization on this issue seems to follow the political spectrum. The NDP and Liberals have long favoured guaranteed access to a safe abortion as a basic element of women’s rights (with Justin Trudeau requiring Liberal MPs to vote pro-choice if the issue ever comes up), while the Conservatives (and the right-wing parties that came before them) have typically referred to it as a form of murder. Even so, there have been plenty of right-wing majority governments since Canada’s abortion laws were struck down, yet those governments refused to touch the issue with a ten foot pole. I’ve had people argue passionately to me that it is our Christian duty to vote Conservative because they are the only party that will outlaw abortion; I’ve had to explain to them that Harper has gone on record as saying that he will not reopen the issue, and that he even voted against a motion about the definition of human life brought up by a Conservative backbencher. Even so, the fact that someone would argue to me that voting for a particular party is a Christian duty because of a particular issue raises the question of morality in law.
Is it possible to “legislate morality”? Can we make laws that require people to be loving, or peaceful, or healthy? Surely we want to, because we all recognize that those things are all good for us, both individually and as a society. If my neighbour is loving, they will not only be happier but they will also treat me better. If we could just have a law of love, we’d all be better off, even if we don’t hold it as a moral value.
Unfortunately, laws can’t directly change our inner nature. Jesus speaks to this in the New Testament. In his sermon on the mount, Jesus lists a number of Old Testament laws and then tells his disciples that they have to go beyond them. To paraphrase him, he said “you have heard it said ‘do not murder’, but I tell you that whoever is angry with his brother or sister will face judgment.” Jesus knew that internal moral changes were far better than the law, and he pushed his disciples to go further and make those internal changes, and in so doing they would actually fulfill the law. He also dealt regularly with a religious group called the Pharisees, who were experts at fulfilling the letter of the law. He constantly called them out on the fact that, even though they fulfilled the letter of the law, they completely neglected its spirit. He called them “white-washed tombs” because they were clean and perfect on the outside, but inside they were full of death and decay. So following the law doesn’t lead to internal change, but internal change leads to following the law (and doing even better!).
We need to be able to honestly compare what we want a law to do and what it can actually do. Morality should absolutely be the basis on which we write laws. Laws should be just, and promote goodness in our society. We should never pass laws that promote evil, period. Some laws are there to promote efficiency or create procedures for things, so they don’t have much moral value, but for the most part our laws are written as a way of living out our morals and values. We don’t have a law against murder because murder is a drain on the economy, we have a law against murder because we believe that it is inherently wrong. If we trace our moral reasoning back even further, we believe that murder is wrong because we believe that life is sacred and murder is the opposite of the love that binds us together as a community and society. If we could pass a law that required us all to love each other, we wouldn’t need laws about murder; sadly, no law can make us love.
What’s the purpose of a law against murder, then? Murder is a symptom of a moral problem, and we can limit the number of murders by a) providing a deterrent (because people don’t want to be punished for murder, so their own self-interest will prevent them from murdering someone), and b) removing murderers or attempted murderers from society to keep society safe from them. A law against murder can’t make us love each other, but it can (at least to some extent) stop us from killing each other. It doesn’t actually satisfy our moral goal, but it limits the extent of our moral decay. In that sense it is a moral law, but it is imperfect and very limited, dealing with the concrete realities rather than the moral ideals.
The Limits of Law
A law is a blunt instrument. Early laws were a simple “thou shalt not”, a universal principle that often lacked any nuance. As we become more aware of how complicated society, human beings, and ethics can be, our laws get longer and more specific, full of caveats and limitations and exclusions in an attempt to try to shave off the rough edges of the law. After all, a law that applies equally to everyone without taking into account a unique situation (and almost every situation is unique) can often be unjust. For a literary example: Jean Valjean (in Les Miserables) stole a loaf of bread, and went to prison for violating the law. When we learn that he stole a single loaf of bread to attempt to feed his family as they were starving to death, we recognize that his prison sentence was incredibly unjust, even if we agree with the idea that stealing is wrong. Most of us would be willing to let him off because of his circumstances, but unless it’s worded very carefully and is full of limitations, a law can’t make that distinction.
One of the ways that we limit a law so that it is just is by targeting laws at specific situations or groups. We recognize, for example, that theft in itself is wrong, but that theft as one part of a ring of organized crime is of a different nature. Another way of saying this is that we take motive into account. We also target laws to protect certain people: it is illegal to sell certain drugs anywhere, but penalties are harsher for people who sell drugs close to schools, because we want to protect our children from drug addiction. Making our laws more specific like this means that our laws are longer and more numerous as we constantly write new laws to further clarify the way laws apply to different situations.
Another way that we ensure that a law is just is through our judicial system: the application of our laws is decided by judges, who are able to take subjective things like motives and background and other issues into account when enforcing the law. A good judge would have recognized that Jean Valjean was not a hardened criminal, and would have given him a much lighter sentence because of the cause of his theft. Unfortunately, the Harper Conservatives have used their “tough on crime” approach to strip judges of their ability to take these things into account, writing laws that require mandatory minimum sentences. This means that even if a judge recognizes that there may have even been a good reason behind someone breaking a particular law, they are unable to adjust their sentencing to reflect that situation. Thankfully, the Supreme Court of Canada has recently overturned a mandatory minimum sentence because it is unconstitutional, and a form of “cruel and unusual punishment.” I expect that with language like that, this will be just the first of many mandatory minimums that gets overturned.
So for a law to be just it must not only have a good moral foundation, but it must also be fitting to a situation and not have unintended negative applications and consequences. In other words, laws should not do harm as well as good.
Applying this to Abortion
I had coffee with Ted Falk a little while back, and we talked very briefly about abortion. Ted is on record as being pro-life, and hopes that if his party wins another majority government they will finally address the issue. I asked whether he thought that criminalizing abortion, so that women who seek abortions or doctors who perform them would be thrown in prison, would actually stop abortions from happening. His answer was “it would stop some of them.” I read his sincerity in his eyes, and was touched by it – it was a point of connection for us, even though I disagree with him.
He’s right, a law criminalizing abortions would stop some, or even most, abortions – just as our law against murder presumably stops many murders, though obviously not all. But abortion is much more complicated than murder, and a law against abortion would have unintended consequences.
While murderers have many reasons for their murders, when they have a relatively good reason we recognize it as something else – manslaughter, which is a much less serious crime. Murder requires evil intent, while manslaughter is causing the death of another person without evil intent. In cases of self-defence, we usually call it “involuntary manslaughter”, which is even less serious of a crime. I would argue that calling abortion “murder” is wrong – I have a very hard time believing that anyone gets an abortion with evil intent. Most abortions, so far as I can tell (from research, of which there is plenty), result from social issues such as poverty, patriarchy, shame and exclusion, and other issues that make women feel incapable of raising a child. These cases would be analogous to manslaughter at most, and probably involuntary manslaughter for many of them. As a new parent, I sometimes feel completely overwhelmed by my role as a father, and my son was planned and born into a stable family with stable employment and great community support; I can’t imagine the pressure and strain faced by a single mother living in poverty without a stable community, or a teenage girl who fears her family’s reaction to her pregnancy and feels that her entire future has changed in a drastically negative way because of one mistake. While many abortions also occur as a form of birth control, these would probably be more analogous to criminal negligence causing death; but once again there is no evil intent there beyond basic selfishness.
In all of these cases, a law can never be specific enough to take everyone’s unique situation into account. But even if judges are allowed to do so in their sentencing, laws against abortion would have significant unintended consequences. One unintended consequence of abortion laws is that women, even in Canada, do not always have control over their own reproduction. Rape is far too common in Canada, and the trauma of carrying the child of your rapist can be significant. Our laws generally prioritize the life of the mother over the life of the unborn child in a no-win situation like that. The physical and mental damage rape can do to a woman is often significant, and it’s unclear whether physical and mental trauma are a sufficient risk to a woman to justify terminating a pregnancy (again, it would vary from case to case). Control over our own bodies is fundamental to human rights, and the rights of women to control their own bodies are often suppressed in most cultures even today, so we should be very careful when we attempt to make laws that might undermine a woman’s right to control her own body and reproduction.
Another unintended consequence of potential anti-abortion laws is that such laws wouldn’t stop abortions entirely. Making something illegal doesn’t stop the demand for it, any more than making murder illegal prevents anger or hate. As we’ve seen with drugs, demand for an illegal substance creates a black market. Black markets are unregulated and dangerous places, and we must always rate the risk of creating a black market when we write laws. “Back-alley abortions” are incredibly dangerous, and one of the reasons that Canada’s abortion laws were struck down was because they were not effective enough to eliminate abortion altogether, and too many women were having dangerous abortion procedures done in unclean and unsafe conditions. Abortion laws were undermining the safety of the women who were violating them. And why would a woman violate a clear law, at great risk to her own safety, unless she had a significant reason to do so?
So Ted Falk rightly says that a law against abortion would stop a lot of abortions. He’s right and I appreciate his motives, but at the same time a law against abortion would also lock up a lot of people who are already the victims of abuse, poverty, and other social issues.
The Green Party’s Stance on Abortion
Like Ted Falk, I want to stop as many abortions as I can. But unlike Ted, I don’t think that a law will do the trick. I think that we need to get to the root of the problem and deal with the issues that make women think that undergoing a potentially dangerous procedure to end the life of an unborn baby actually sounds like the best idea. Reading the Green statement helped me come to this conclusion. From Vision Green, page 108:
Green Party MPs will:
- Oppose any possible government move to diminish the right of a woman to a safe, legal abortion. We fully support a woman’s right to choose. We will also expand programs in reproductive rights and education to avoid unwanted pregnancies, and expand supports for low-income mothers;
It struck me when I first read this that I wasn’t comfortable with the first two sentences. My feelings about abortion are still strong: it’s an awful thing that comes out of awful situations. But it also struck me that, in all of my years of following the abortion debate, I hadn’t seen anything like that third sentence very often. The Green approach is to try to minimize abortions without the unintended consequences caused by outlawing abortions. Pro-choice advocates argue that abortions should be available as a way of supporting women’s rights and keeping them safe; Pro-life advocates argue that abortions shouldn’t be available because they violate the rights and life of the unborn child, and that life is sacred. This policy presents a third way, working to uphold the sanctity of life without undermining the rights and safety of women. It is my hope that this third way will provide a way forward for our entire society, so that we can stop arguing about the definition of life and start finding better ways to protect it and help it to flourish.
Conclusion: Just Laws
To wrap up a very long post, I’ll quickly recap:
1. Just laws will have a strong moral foundation, and exist to promote goodness and restrain evil;
2. Laws aren’t capable of enforcing requirements of goodness, and are imperfect at restraining evil; and
3. Just laws won’t do harm for the sake of doing good, and must minimize unintended consequences.
I hate abortion, but I also hate that many women are in such terrible situations that the availability of abortions is a positive thing for them. I want to save as many people as possible – born and unborn – and this moral stance drives me to want to do something about abortion, but I don’t want to do harm for the sake of doing good. This serves as a good case study to describe the limitations of laws, and it also shows the strength of the Green position on abortion. My hope is that we can all agree that saving lives and preventing harm are our common concerns, and work together to address the root causes of abortions so that we can save as many people as possible.
I know that this is an issue that many people in Provencher care deeply about. Please contact me to let me know your thoughts on it, or ask for clarification on mine. I’d be happy to connect with you and keep the conversation going, because this is a conversation that isn’t going away – and shouldn’t go away. The health of women and children are too important to ignore because of political awkwardness.