29 June 2022

There’s no such thing as a ‘right’ to an abortion


I’m sorry, I know it’s a betrayal of my sex, but there’s really only one word to describe aspects of the British response to the repeal of Roe v Wade: hysterical.

Look, I get it. America is the shining city on a hill. Never mind its moral leadership in recent decades has been questionable, nor that the legal decision concerned has always been dubious, the USA is supposed to be the last bastion of freedom. It’s therefore deeply disturbing that women there are having their access to abortions removed over night. But Britain is not America. 

That didn’t stop our Parliament spending some 40 minutes debating the issue yesterday. Contributions included a Labour MP saying she felt ‘personally targeted’ by the decision of some foreign judges who’ve never heard of her, an SNP MP asking about trans healthcare and Jim Shannon, known in Westminster for speaking in every debate going, saying something about IVF. Certainly a productive use of Parliament’s limited time in the middle of the worst cost of living crisis in decades and a land war on our continent.

But there was one interesting idea put forward by Labour MP Stella Creasy. She said that she intends to table an amendment to the forthcoming Bill of Rights enshrining access to abortion as a human right. Creasy is a brilliant campaigner, but there are some crucial problems with this latest crusade.

First, it will sow division where there is none. While not exactly a settled issue in this country (more on which later), there is no credible threat to legal abortion in this country. Creasy and others may claim that where America leads Britain follows, but that is evidently untrue.

In fact, the Government recently liberalised the rules around telemedicine abortions. Unlike America, which has always been split over the issue, in Britain 85% of people agree that women should have the right to an abortion. As Dominic Sandbrook wrote in this excellent piece, ‘if you’re hoping to win selection for a safe Tory seat by talking about ending abortion, outlawing socialised medicine and encouraging the high-street sales of automatic weapons, then I’ve got a nice padded cell for you’. Pretending that there are shadowy forces in this country ‘organising‘ to confiscate our Mifepristone helps no one. It simply distracts from real problems like five-year waits for rape trials, unaffordable child care, or the misogyny of the Met Police.

Second, framing this debate as a question of ‘human rights’ may be politically expedient, but it’s ultimately counter-productive. It’s an argument that suits those who take the ‘it could happen here’ line because they equate it with the Government’s efforts to disentangle itself from elements of the European Convention on Human Rights. This is despite the fact that ECHR has jurisdiction in countries like Poland and Malta where abortion is either partially or totally illegal (something that escaped one Liberal Democrat MP, who seemed to think the ECHR has something to do with abortions in the UK ).These people love activist judges when they’re trying to frustrate Brexit or ground planes to Rwanda – not so keen when they’re pointing out the plain fact that the constitution doesn’t mention reproductive choice. 

But hypocrisy aside, it’s incorrect to imply that high-minded documents or international agreements are essential to ensuring access to abortion. There is a UN treaty, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), often described as the ‘bill of rights for women’, which ‘affirms women’s right to reproductive choice’. But the wording is deliberately coy and open to interpretation, requiring signatories to guarantee women ‘The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights’. Countries that have ratified this convention include such gender paradises as Bahrain, Turkmenistan and North Korea. As for a British Bill of Rights, this would carry the same weight, and be just as easy for a future government to repeal, as the existing law.

Another weakness of ‘human rights’ arguments is that they are wide open to counter claims. Of course abortions have emancipated women from biological determinism, and societies that allow them have seen enormous benefits. But opponents will say that unborn children have ‘rights’ too – and since they couldn’t be more vulnerable we have a higher duty to protect them. It’s no less fundamentalist to say that abortion is an inalienable right than it is to say it’s an offence against religious faith or that human life begins at conception. You can try and get into the exact gestational point at which a foetus becomes a person, but it’s always going to be an exercise in arbitrary line-drawing, especially as pre-natal science progresses. Legislatively speaking, these moral absolutes don’t get you very far.

In Britain the Abortion Act 1967 legalises abortion under certain conditions by creating exemptions to older crimes first set out in the Offences Against the Person Act 1861. Some campaigners would prefer to fully decriminalise abortion. To me, it’s a strength of our system that legislation is built layer by layer, adapting to the needs of each new generation. It may not be neat and satisfying, but our abortion laws broadly get the balance right and command public confidence.

Except, of course. in Northern Ireland, where the Abortion Act 1967 never applied. Instead Westminster imposed abortions on the province by fiat, spearheaded by none other than Stella Creasy, at a time when Stormont had failed to form an executive for several years. Technically Northern Ireland now has stronger abortion ‘rights’ that the rest of the UK, but the reality is that its government failed to commission appropriate services and women are still struggling to get abortions. 

Creasy has taken exactly the wrong lessons from both her own campaign to bypass the elected representatives of the people of Northern Ireland and from the current situation in America. ‘Entrenching’ a right to abortion in some extra-mural document is no guarantee of women’s reproductive choices. In a democracy you have to compromise, not just impose your values on people with legitimate reasons for disagreeing with you. And on something so fundamental to liberty and so personal to women, that’s difficult to do – as we will no doubt see now that the question has been returned to politicians in America.

Abortion isn’t a right, it’s a freedom, and the best way to protect it is through a good, old-fashioned democratic fudge.

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Alys Denby is Deputy Editor of CapX.