In Gavin’s recent Explainer post on the new abortion regulations in Northern Ireland, one of things he notes is that the new regulations in Northern Ireland “arguably combine some of the most permissive elements of the existing British and Irish legislation.” For example, in Ireland, abortion is available on request until 12 weeks and requires one doctor to sign off. In Britain, a reason is technically required for abortion before 12 weeks (even if in practice this means nothing) and two doctors have to sign off. The NI legislation follows the Irish model here. On the other hand, after 12 weeks the British model requires that there be a risk greater than if the pregnancy were to continue (which is a very low bar) while the Irish model requires a serious risk to life or health. The NI legislation follows the British model here.
In my view, this is probably not a coincidence. I suspect that the regulations were specifically drafted this way due to the widespread view that otherwise women would “simply travel” to obtain an abortion. The argument is that in the context of abortion availability in a neighbouring jurisdiction, abortion bans (either in general, or under a specific set of circumstances, eg after a particular gestational age or in the case of a certain foetal condition) don’t actually prevent any abortions, but merely inflict added expense and trauma on the woman by “forcing” her to travel. This is a powerful argument. Ciara described in the first episode of our podcast how this argument made her feel like there was nothing to lose by removing legal protection for unborn babies: it wouldn’t cost any lives, but would make life easier for women, perhaps significantly so. Simon Coveney also expressed this view when he outlined why he supported repeal and the subsequent Irish legislation. This argument is powerful because it’s not supposed to rely on abortion being morally permissible: if it worked, it could be accepted by a person who was convinced that abortion was the unjustified killing of an innocent person.
However, this argument falls apart on closer inspection. To see why, consider a horrifying analogy. (1) Let’s suppose there is a group of people in Ireland who want to subject their daughters to the horrific violence of female genital mutilation (FGM). They are absolutely intent on doing so. In the absence of access to safe, legal FGM in an Irish hospital, they will either perform it themselves illegally in Ireland, or they will travel with their little daughters to another jurisdiction and subject them to this horrendous practice abroad, before returning to Ireland. Would any right-minded person consider this a valid argument for legalising and facilitating FGM in Ireland? Of course not.
I have heard pro-life people address the “travel” argument before, usually by saying that the fact that someone travels abroad to buy drugs or sex isn’t a good argument for legalising drugs or prostitution in Ireland. However, I think the FGM analogy is far closer to abortion. There are several reasons for this, but the most relevant reason here is because some people believe and argue that it is a good idea to legalise drugs or prostitution in their own right. Therefore, refuting the “travel” argument by referencing the fact that drugs or prostitution are legal elsewhere can muddy the waters. This is definitely not the case for FGM. When it comes to inflicting such horrific violence on an innocent child, everything in us screams against the very thought of legitimising this practice in any way – even in a hypothetical scenario where banning the practice did nothing to prevent it. (Not, for the record, the scenario that we think actually obtains).
We can see therefore that the argument for legalising abortion because abortions will happen anyway (just somewhere else) turns out to be yet another example of an argument that simply boils down to the basic question of whether abortion is right or wrong (or, if you like, neutral or wrong). If the unborn have no objective right to life, there is no argument for banning abortion, even if abortion is illegal everywhere else. And if the unborn do have an objective right to life, there is no argument for legal abortion, even if abortion is legal everywhere else.
Instead of simply plonking our abortion restrictions on the line that a neighbouring jurisdiction happens to draw, we should have an honest conversation about whether abortion is in itself justified. Once that question has been properly answered, an appropriate legislative and regulatory framework will naturally follow.
1. It’s incredibly important to note here that I am only comparing abortion and FGM in the following ways: a. They are both (on pro-life premises) forms of interpersonal violence. b. They raise similar issues in the context of legality and travel. I am not comparing and am certainly not equating the practices in any other respect.
So, a few points about the example of FGM:
1) I find it hard to see that FGM is something that most people would willingly choose, whereas for a non-trivial number of abortions that’s clearly not the case (e.g, those where people don’t think that preborn humans have any meaningful moral status and just don’t want children). There is a broader point to be made that economic and social pressures push people towards abortion (e.g, child benefit is nowhere near the full cost of raising a child) and that it’s not in many cases a choice that large proportions of women* want, but to fully fix the analogy, we would need to consider only the abortions with explicit coercion, e.g, when someone is threatened with domestic violence if they don’t abort, or being kicked out of their housing etc. But the disanalogies between abortion and FGM are significant enough that there’s no logical contradiction being made by a pro-choice person in calling for FGM but not forced abortions to be banned- the key word here being *choice*.
2) I still don’t think that your arguments entirely address the objections that are being made in terms of the ethics *if* banning them didn’t reduce the numbers (though banning them does genuinely reduce the numbers). In responding to a strongly utilitarian viewpoint, the argument being made against banning abortion is that “Well the numbers will stay the same, but the health outcomes and death rates go up when women have to travel, ergo abortion restriction is bad policy.” If for example there was evidence that FGM performed outside of Ireland was worse than FGM performed within Ireland, and the Irish state had no ability to enforce laws against it, at that point, I don’t think it’s entirely compelling to somebody of consequentialist views argue against criminalising that practice on the grounds that we are repulsed by it, even though everything in us rightly knows that it’s wrong. Reasoning via something similar to the trolley problem, consider the following thought experiment:
You are one of several prisoners of war in a Nazi death camp, surronded by multiple guards, in which you are to a limited degree free to move around and the others are tied to a chair and unable to do anything about their predicament. The guards offer you an evil choice: torture one other prisoner to death, and if you refuse they will ensure that every other prisoner will suffer that fate; you also know that attempting to resist, as opposed to refusing will only get everyone, including yourself killed via torture. Everything in you knows that comitting the torture is wrong- but it’s far from clear that on consequentialist views that not doing what the guards ask is the correct course of action. A consequentialist who wrongly thought that banning FGM only made the existing FGM worse but had no effects on the amount of it is not obviously following logic which is on the face of it absurd, even if they are wrong on the facts of social policy.
3) Going back to abortion, one other point to be made and a genuinely relevant distinction to the thought experiment above is that a law banning abortion is an active governmental intervention that costs tax monies etc (which is being wrongly claimed by legal abortion supporters not to work anyway), whereas a laissze-faire approach would while not necessarily being an argument for funding it on the health system, certainly be one for deciding not to intervene if it was harmful, even if abortion is conceded to be unjust. To think of a curveball analogy, the racist murder of Emmett Till led at the very least to the birth of the civil rights movement in Mississippi. If you were around a few days before he was murdered, and had perfect foresight to know that the consequences of not warning him of the future (and getting him out of the situation in which he would be killed) were counter-intuitively worse than the one in which you let history unfold as it did, non-intervention would seem to be the rational choice, and pro-choice people raising the issue of abortion travel abroad are claiming that a world with governmental intervention to stop abortion would be worse than one without it. I’m unconvinced that the rebuttal works unless we prove that (taking the broadest possible view of the issue) that banning abortion reduces the rates enough, and has few enough negative consequences such that the world in which criminalising** performing them on others or selling abortion pills etc is better than the one in which it isn’t.
*And trans/non-binary people, who are even more pressured by broader societal factors.
** Of course, anarchist objections to government complicate the whole picture, but replace “criminalising” with “using direct actions to disrupt institutions and individuals” and the broad point still holds.