Thesis for course in Comparative Constitutional Law

Divergent Ethics:
A normative comparison of the jurisprudence on abortion of Germany, Canada, and the United States













M. D.
Comparative Constitutional Law
12/18/06









INTRODUCTION

There are few subjects more apt to raise the public’s passions than abortion. No matter the ideological side taken on the issue, the emotional investment attendant to any position taken in this area often makes it difficult to have serious policy discussions. In a world in which technological advances create new situations over which litigation will arise more and more frequently, these serious policy discussions are needed more than ever. This article is an attempt to contribute to that ongoing policy dialogue, both in a descriptive and normative way.
The state of the law in the United States concerning abortion is relatively straightforward in its general form but becomes more unclear in the penumbral cases. To aid in understanding the nature of these cases at the edge, the first part of this article includes a description of current law from Canada, the United States, and Germany. Each country has a well-developed jurisprudence with regard to abortion and understanding the shape of the law in each country will provide the framework for a normative analysis.
The difficulties posed by questions of abortion, personhood, and whether rights are inherent in pre-birth humanity are unusual and frequently technical. Determining the answers to these questions often takes jurists and academics deep into the principles underlying our law and way of life. Unfortunately for those interested in forming a coherent view of law, the principles and philosophies from which judges and writers draw are varied and wildly divergent. The second part of this essay will attempt to outline several of the major philosophical positions on abortion and determine which, if any, could be proposed as being underlying each country’s abortion jurisprudence.
Finally, a note about methodology and purpose is warranted. This author views law through the lens of legal formalism, and this essay is an attempt to deduce the proper principles underlying the abortion jurisprudence of the United States with reference to the abortion jurisprudence of Canada and Germany. This analysis is meant to be a guide for judges and academics in aid of their making the proper decisions when presented with difficult cases on the margins. To the extent readers accept the jurisprudential position taken in this work, this article will serve to shine light into the grey areas at the edges of established law. Readers who reject the idea that law is derived from ethical sources, (rather than from statutory and political sources) will still find the descriptive elements to be a useful contribution to their understanding of law, though largely duplicative of previous scholarship.

PART I: CURRENT LAW OF CANADA, THE UNITED STATES, AND GERMANY

CANADIAN LAW

Canadian jurisprudence on abortion followed closely English common and statutory law until the nineteenth century.[1] Until 1803, abortion was a common law offense if done at any point after the fetus had quickened, because by the time the fetus could move it had demonstrated at least one element of independence from the woman bearing it.[2] In this respect, Canadian common law required a measure of separateness in order to vest some right in the fetus. This necessity for some amount of separateness as a requisite for rights was codified in 1803 by Lord Ellenborough.[3] Ellenborough’s law strengthened the criminal nature of abortion by making abortion after quickening a capital offense.[4] The law further extended the criminality of abortion by making abortion before quickening criminal, though without an attendant death sentence.[5] Ellenborough’s law lasted until 1837 when it was preempted by an English law.[6] The 1837 law rejected the use of the death penalty and abolished the distinction between pre- and pos-quickening abortions.[7]
In 1861, the English Offenses Against the Person Act reiterated the criminality of abortion via instruments or poisons.[8] The specific inclusion of the method of abortion in the statutory language left open the potential that some abortions (done through other means) might not be criminal. The Offenses Against the Person Act was the basis for Canadian abortion jurisprudence until 1953.[9]
The first truly Canadian law on abortion was passed in 1869 and remained largely without significant controversy until the 1960’s.[10] Due to the action of Great Britain to liberalize abortion laws, Canadian politicians followed suit.[11] A scholar who has studied this history of abortion law in Canada noted that British influence over Canadian politics on abortion, saying that “[j]ust as Canada’s original abortion law was based on British precedent, so, too, was the movement in the 1960’s to reform the law.”[12] C-150, the Canadian law that was the product of the tumultuous debate of the 1960’s, reformed Canadian abortion law in ways that were far-reaching. The law legalized abortion in cases where pregnancy would endanger or seriously and directly impair the life of the woman who was pregnant.[13]
Canada’s women and doctors operated under this law for nearly two decades.[14] Until the 1988 Constitutional decision of Morgentaler v. The Queen, the Supreme Court of Canada showed significant judicial restraint in dealing with the issue of abortion. Doctor Mogentaler’s case begins in 1973, when his abortion clinic in Montreal was raided by the police.[15] Doctor Morgentaler was arrested and charged with performing an illegal abortion on a woman. Morgentaler presented a defense of medical necessity, argued against the jurisdiction of the court, and claimed that the prosecution for performing an abortion violated the Canadian Bill of Rights.[16] Morgentaler’s main claim, though, was radical. Morgentaler claimed that “the Canadian Bill of Rights of 1960, derived from the US Constitution, imported American common law decisions into Canadian law, and thus, Roe v. Wade case law should be followed in Canada.”[17]
Morgentaler’s constitutional arguments were appealed to the Supreme Court of Canada, which dismissed them all.[18] In a double-blow against Morgentaler, the court even indicated that the trial court had erred in even considering necessity as a defense, since no evidence of an emergency existed.[19]
In 1988, Morgentaler took another bite at the apple and got a second chance to present his Constitutional arguments following a second prosecution for performing unlawful abortions. Morgentaler refined his argument in light of the new Canadian Constitutional documents of 1982.[20] Section 7 of the Canadian Charter of Rights and Freedoms (1982) provided that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”[21] Using this language, Morgentaler argued that the criminalization of abortion (even with the necessity defense) deprived women of these guaranteed freedoms.
The Morgentaler v. The Queen (1988) judgment ruled that the Canadian Criminal Code sections criminalizing abortion did violate the Canadian Charter of Rights and Freedoms in this way.[22] Moreover, the process by which the Code harmed a woman’s rights of security did not comport with fundamental justice.[23] While recognizing that the State had a duty to protect fetal life at some point, the means by which the State sought to accomplish that end were not reasonable.[24] The Canadian Supreme Court based its ultimate conclusions on the permissibility of abortion not on privacy, as in the United States, but on the right of security for all persons.[25] Being denied access to medical treatment, by way of criminalizing the treatment, violated a woman’s right to be secure in the well-being of her person.
After handing down the 1988 Morgentaler decision which ruled Canada’s law on abortion to be unconstitutional, other legal efforts were put into motion by parties on all sides of the issue. One important case decided a year after Morgentaler was filed by a pro-life Manitoba cabinet member. The case, Borowski v. Canada, sought to have interpreted the same language used by Morgentaler in his successful case before the Supreme Court of Canada.[26] The same rights found in section 7 of the Canadian Charter of Rights and Freedoms were at issue, and Borowski argued that while Morgentaler was decided correctly in terms of its interpretation of the language, that the court had failed to consider the scope of the word ‘everyone.’ Since “Everyone has the right to life, liberty and security,” argued Borowski, then these rights adhered both to the woman who was pregnant and to the unborn child in her womb.[27]
The Canadian Supreme Court declined to address the personhood of the fetus, and dismissed Borowski’s Constitutional claim.[28] The Court once again retreated into the relative safety of deference and suggested that determining who qualified to possess the rights guaranteed by the Canadian Charter of Rights and Freedoms was a job for the legislative branch, which could get the input of all of the relevant disciplines before making its decision.[29] The Morgentaler and Borowski decisions opened the door for the public to demand a new abortion law, consistent with the Charter of Rights and Freedoms, to be enacted by the Parliament, and in 1990, the Canadian Parliament adopted a new statutory law of abortion in light of the Morgentaler and Borowski decisions.[30] The proposed new Canadian law provided that abortion was criminal only in cases where a medical practitioner did not believe that the pregnancy threatened the life of the woman (even in cases where there was no immediate emergency). The Canadian Senate rejected the bill by a single vote and thus the proposed law never became an actual law.[31] Parliament has yet to achieve a consensus about how to deal with abortion and this remains the case in Canada at present.[32]

UNITED STATES LAW

American history with respect to abortion is largely uncontroversial. Prior to 1821, abortion was not prohibited nor regulated in the United States under any guise.[33] In 1821, Connecticut prohibited abortion after quickening, although unlike the Canadian experience, no death penalty went along with the crime.[34] Eight years later, New York followed suit and prohibited abortions after quickening, and provided a medical necessity exception.[35] By 1849, eighteen states had passed anti-abortion laws, and by 1900, forty-three.[36] Despite nearly universal criminality in the United States by the twentieth century, abortion was largely ignored until the 1960’s.[37]
An understanding of American Constitutional law regarding abortion begins with a case outside of the abortion context, but on which the contemporary right to an abortion rests. In Griswold v. Connecticut,[38] Connecticut had outlawed the dissemination of information about contraception, and certain medical professionals (including Griswold) had been brought up on charges of disseminating the information in violation of the law.[39] Writing for the Court, Justice Douglas articulated that the rights found in the U.S. Bill of Rights were not as clearly understood as they should be.[40] He concluded that, while the rights contained in the American Constitution were specific in many cases, the rights also had penumbras and emanations which helped jurists to see the scope of the enumerated rights as well as others which could be derived and found in the penumbras of the enumerated rights.[41]
The right of privacy was found in the penumbras of many amendments,[42] and extended to having a right to keep from government intervention the reproductive decisions of a married couple to have or not have children through the use of contraceptives.[43] The right of privacy was held to reach unmarried individuals in their right to use contraception as well.[44] This right of privacy was key to the birth of modern abortion jurisprudence in the United States.
The landmark case that first revealed that privacy extended to abortion was Roe v. Wade.[45] The Roe decision acknowledged the sensitive nature of the issues presented, and recognized the varying influences that were brought to bear in shaping people’s views on the matter.[46] Tracing a conceptual lineage back to 1891, the Court held that the right of privacy exists (as held in Griswold), and that the right of privacy extended to the right to have an abortion.[47] The Court continued on to recognize a right of the State to protect fetal life, and made clear that at some point during pregnancy, the State’s right to protect fetal life would come to outweigh the pregnant woman’s right to procure an abortion.[48]
The court adopted a trimester-style analysis and held that before the end of the first trimester, the State may not interfere with a woman’s right to have an abortion, but that after the first trimester, the State may intervene and regulate abortion in ways reasonable related to the protection of the health of the pregnant woman.[49] From the end of the second trimester through the end of the third, the State may regulate or even proscribe abortions altogether (with an exception for cases of medical necessity).[50]
Planned Parenthood v. Casey followed almost 20 years after Roe, but was just as ground-breaking in terms of its alteration of the legal landscape on abortion. Casey[51] was a revisitation of the right to abortion that Roe first provided to American Constitutional law. The plurality opinion in Casey upheld the extension of a right to privacy to abortion cases from Roe, but did so only narrowly, citing reliance on precedent as a primary reason for upholding Roe.[52]
Casey’s radical alteration was not to the extension of the right of privacy to abortion cases, but rather was an alteration in the type of analysis that should be done in abortion cases. Casey reaffirmed the Roe holding, but discarded the trimester analysis, stating that the trimester analysis “[did] not fulfill Roe’s own promise that the State has an important interest in protecting fetal life or potential life.”[53] In place of the trimester analysis used by Roe, the Court placed a two-part test.[54] The first part of the test centers on viability. Those attempts by the government to prohibit abortions (with the medical necessity exception, still) after viability will be upheld, while those done before viability must pass the second part of the test.[55] If a governmental regulation interferes with a woman’s right to have an abortion for a non-viable fetus, it will be upheld unless the regulations poses an ‘undue burden’ on the woman’s right to proceed with the abortion.[56]
These principles have been subsequently tested and upheld in the United States Supreme Court.[57] Whereas the Canadian Supreme Court discovered a right to abortion in the meaning of the term ‘security’ from the Canadian Charter of Rights and Freedoms, the United States Courts have located it in the meaning of the term ‘privacy’ as read in the penumbras of enumerated rights in the Constitution of the United States.

GERMAN LAW

The German experience is significantly different than the experience of either America or Canada in respect to abortion. Canada and the United States founded their abortion jurisprudence on security and privacy, respectively. German abortion law makes abortion illegal irrespective of how unadvanced the pregnancy.[58] Like Canada, the German Court relies on specific text from their Constitution in forming its abortion jurisprudence, but unlike Canada, Germany found that their Constitution required the State to protect fetal life more affirmatively.[59]
The German Basic Law is the Constitution of Germany. The Basic Law contains a statement that “Everyone shall have a right to life.”[60] The Basic Law also explicitly recognizes the dignity of each human being as being central to the German nation.[61] These principles emerge from Germany’s past experience with Nazism and are taken quite seriously, as a way to guard against the difficulties of German history.[62] As such, the principles occupy the first few articles of the German Basic Law, indicating their importance in the social order of Germany.
West Germany, in 1975, had created a liberalized abortion law allowing abortions during the first trimester of pregnancy as long as the woman received counseling and had the procedure handled by a medical professional.[63] This politically supported law brought West German law more in line with the law of the liberal democracies around it.[64] In 1975, a case labeled ‘Abortion I,’ the abortion statute of Germany was challenged successfully.[65] Abortion, held the Court, concerned the most fundamental value for which the State was created to protect – namely, life.[66]
The German Constitutional Court made clear that a fetus had a legal right to life that the State was required to affirmatively protect. As one scholar writes, “‘Developing life also partakes of the protection of human dignity,’ the constitutional Court asserted in Abortion I, since ‘where human life exists, human dignity attaches.’”[67] Germany took an explicit stance on when humanity is accorded rights in Abortion I. Many philosophers will contend that the ultimate question involved in the American abortion debate is when to label a pre-birth member of Homo sapiens a human being in the full sense of the term. Germany settled this dispute constitutionally, claiming that “‘Everyone’ thus includes the yet unborn person; a fetus has a right to life. ‘Life in the sense of individual existence… begins according to undisputed biological and physiological knowledge… 14 days after conception.’ Once begun, life is ‘a continuous event, which knows no sharp phases and does not contain distinct boundaries between stages of development.”[68]
Further, the Court held that the German State had an obligation to protect fetal life (a duty that allowing abortions via statute would not allow).[69] Article 1 of the German Basic Law orders the State to ‘respect and protect’ human dignity.[70] Indeed, so powerful is the State’s obligation in this regard that the Basic Law refers to this as ‘the duty of all state authority.’[71] From this, the Court concluded that the State could not constitutionally have a statute that permitted abortions except in a very limited number of cases.
These exceptions (‘indications’ in the Court’s language) are fairly narrow, but include most of the common ones found in Canada and the United States. An indication is provided in cases of threat to the woman’s health as well as for pregnancy resulting from rape and incest.[72] For general needs the Court could not foresee, they provided an indication for extreme hardship, but only when the severity of the hardship would be akin to the severity of the other indications.[73] Curiously, though, the German Constitutional Court provided an indication for a case not covered in the United States or in Canada. This indication allows for abortions in cases of severe birth defects.[74]
Despite the strict opinion of the Constitutional Court that the State must affirmatively protect fetal life by criminalizing abortion in any trimester (with only the indications as exceptions), German citizens found ways to circumvent the spirit of the law.[75] Women who wanted abortions usually tended to fall under the indications, and courts leniently interpreted what could fall under the indication for hardship.[76] Further, enforcement and implementation of the criminalizing statute varied region by region, and nothing prevented women seeking abortions to travel to areas of the country that were looser in their interpretation of the indications to procure an abortion.[77] As a final nail in the coffin of the statute created in light of Abortion I, women seeking abortions who were unable to fit within an indication frequently traveled abroad (particularly to the Netherlands) to obtain one.[78]
In 1993, the Constitutional Court of the newly reunified Germany reconsidered its previous abortion ruling from Abortion I.[79] Before reunification, East Germany’s emphasis on social welfare had found expression in a liberalized abortion law much in line with the abortion laws of the countries surrounding Germany, and much like the law originally at issue in Abortion I.[80] With reunification came the difficulty of trying to merge two divergent populations’ legal standards and ideas about justice with respect to handling the termination of pregnancy. East Germany was allowed to keep their liberalized law on abortion until a German Bundestag could find a compromise solution, which came in 1992 with the Abortion Reform Act.[81] The Abortion Reform Act allowed a woman to obtain an abortion in the first trimester of pregnancy if she attended a mandatory counseling program designed to encourage the woman to consider her responsibilities.[82] The Act also required a three-day waiting period before receiving an abortion.[83]
This law came under fire from those who had originally pushed for the West German law criminalizing abortion. Quickly after the passage of the Abortion Reform Act, the Constitutional Court again was presented with the issue of abortion in the case known as ‘Abortion II’.[84] Overwhelmingly, the Court in Abortion II overturned the Abortion Reform Act, reiterating the core ruling of Abortion I.[85] Ruling against the new law posed serious difficulties with the public, since the law was the result of a broad compromise between factions. The new law had significant public support, but the Court was forced to defend its previous ruling.[86]
Affirming the holding of Abortion I, the Constitutional Court explained that “Dignity attaches to the physical existence of every human being… before as well as after birth… Unborn life is a constitutional value that the state is obligated to protect that attaches to each human life, not life generally.”[87] Moreover, the Court held that simply making abortion illegal wasn’t enough to satisfy the duty to protect life and human dignity.[88] The German government would have to make it clear that abortion is illegal and that a duty to carry children to term existed for pregnant women.[89] The duty of the state and of its people to protect life in these fashions stood at the base of German society for the Court.[90]
The Court did soften its approach in dealing with abortion, though. While the State had a duty to make it clear that abortions were illegal, the Court recognized that this did not entail that the State had a duty to criminalize abortions generally.[91] A comprehensive system of counseling and encouragement could constitutionally be allowed to take the place of criminalization, but would need to be more stringent than the system put in place via the Abortion Reform Act. The Court asserted that “the state may validly conclude that in view of the reality of abortion in modern society, the more effective solution to the problem of unwanted pregnancy is to stay the hand of the would-be prosecutors, to make an ally and friend of the woman in distress, to foreswear threats of punishment, and to induce her to cooperate voluntarily without fear of retribution of loss of personal integrity.”[92] The system suggested by the Court is the current law of abortion in Germany.

PART II: ETHICAL THEORIES OF ABORTION AND CASES AT THE MARGINS

ETHICAL THEORIES

There are dozens of serious theories concerning the wrongness of killing in the relevant philosophical literature. To cover them in their entirety would be a project greater than that attempted in this article, and this article will leave that work for another writing or for another author. Among the many theories, several stand out as being particularly common amongst the public, and these theories are the ones on which this article will focus the majority of its discussion. The theories discussed here will be referred to as Sufferist Theory, Psychological Personhood, Future of Value Theory, and Catholic Doctrine Theory. Each will be discussed in turn via a brief summary.
What this article terms Sufferist Theory comes largely from the works of the Australian ethicist, Peter Singer. Singer posits that the line between the entities to which we owe duties and those entities to which we do not owe duties can be drawn scientifically.[93] Unlike many people’s intuitional starting place in this arena, Singer does not attempt to determine when human life begins. Rather, Singer argues that the ‘humanness’ of an entity is largely irrelevant to the determination of whether we owe that being a certain moral respect.[94] In another context in which he applies his theory commonly (the field of non-human animal rights), Singer quotes the father of political Utilitarianism, Jeremy Bentham, at length. Singer quotes, “The day may come when the rest of the animal creation may acquire those rights which never could have been with-holden from them but by the hand of tyranny. The French have already discovered that the blackness of the skin is no reason why a human being should be abandoned without redress to the caprice of a tormentor. It may one day come to be recognized that the number of legs, the villosity of the skin, or the termination of the os sacrum are reasons equally insufficient for abandoning a sensitive being to the same fate. What else is it that should trace the insuperable line? Is it the faculty of reason, or perhaps the faculty of discourse? But a full-grown horse or dog is beyond comparison a more rational, as well as a more conversable animal than an infant of a day or a week or even a month, old. But suppose they were otherwise, what would it avail? The question is not, Can they reason? nor Can they talk? but Can they suffer?”[95]
Singer’s use of Bentham in another context provides ample material from which to understand how he views the morality of harming biologically human entities. The question for Singer revolves not around whether the entity is a human being at all. Rather, the question becomes ‘Can the entity suffer?’ To Singer, the greater the ability of the entity to suffer, the more its interests must be taken into account when determining the proper course of action.[96]
A human fetus does not have the capacity to suffer in the same manner in which an adult woman can suffer, both because of the lack of nociceptors in the fetus as well as the utter lack of mental characteristics to permit non-physical pain. For Singer, this answers the question in its entirety. Abortion cannot be wrong in the earliest stages of pregnancy (because the fetus cannot suffer), and will only be wrong in the late term of pregnancy in the most unlikely of cases (since the fetus will only have the capacity to feel physical pain).
Psychological Personhood Theory is a broad umbrella under which many divergent theorists band. While each espouses a differing theory, all accept a broad underlying principle that says that what is determinative in what things we may properly kill and what things we must refrain from killing isn’t suffering, but rather a set of psychological characteristics found in things over which there is no controversy in regard to killing them. A prime example of this type of theorist is Michael Tooley.
Tooley argues that in order to harm a being, the being must have the capacity to be harmed.[97] To explain this intuitive, but easily-overlooked, concept, Tooley offers the following two statements: 1) A child does not have the right to smoke, and 2) A newspaper does not have the right not to be torn up. Tooley points out that the first statement is a candidate for debate based on our general views of appropriate moral conduct, but that the second statement is not in serious contention for any debate.[98] The reason for this is that the newspaper is not the type of entity which can possess interests.[99] An entity without the ability to have an interest in something cannot be harmed because the being does not have any stake in the outcome of a proposed action.[100]
In order to have interests, though, an entity must have the ability to have interests, and that means having desires about the outcomes of proposed actions.[101] If a being cannot desire one outcome over another, the being cannot have an interest in the outcome of the situation, and therefore cannot be harmed by any possible outcome.[102] The question then becomes, do fetuses have desires? Answering that question is difficult because it would require a psychological analysis of a being that cannot directly interact with someone analyzing it. To get at the answer indirectly, Tooley notes that in order to have desires, a being must be capable of understanding that it will continue on into the future and that actions now will have impacts on itself later, thus affecting its ability to meet its desires.[103]
Fetuses, though, do not have a continuing sense of self over time.[104] This absence of an ability to see themselves as existing over time (a capacity that even infants do not possess) indicates that fetuses do not have desires requisite to generate and sustain interests. That they cannot generate nor sustain interests means that they cannot be harmed. Since a fetus cannot be harmed by an abortion, there is no reason to stop a woman from having an abortion at any point during her pregnancy, for any reason she desires.
Future of Value Theory is a theory originally proposed by a professor at the University of Kansas named Donald Marquis. Marquis proposes that trying to understand what we can kill ethically by examining a particular context is meaningless.[105] Before we can know whether abortion is immoral, we must understand what makes killing wrong in a case about which we are sure. Marquis begins with what he views as an unproblematic assumption – namely, that it is wrong for someone to kill him.[106] Marquis accepts this assumption and then asks, ‘Why?’[107] Why is it immoral for someone to kill him? The intuitional response, and the response on which his theory rests, is that it would be wrong to kill him because there are things that he still values in his life and killing him would forever deprive him of those things which he values. [108]
Having a future in which he will value things is reason enough to ensure that it is prima facie seriously wrong to kill him. If it is wrong to kill a being because it possesses a future which contains things that it will value, then does that match with our other intuitions about killing? Marquis answers that it does.[109] It explains, he suggests, why we view killing as one of the worst crimes, and why people dying from a terminal disease view their deaths as something bad that will happen to them.[110] Additionally, it explains why we tend to see the death of a very young child as a greater tragedy than the death of a very old individual.[111] It stands to reason that the child had a future with far more to value in it than did the elderly person who could have had far fewer years left in which to value things.
Marquis makes the conclusions of his theory clear for infants and fetuses. While it may still be possible for abortion to be acceptable in a very small number of cases, overwhelmingly, abortion will be impermissible. Just as a young child has a long future ahead of her in which to value things, an infant has even more of future ahead of it.[112] A fetus has a still longer future ahead of it in which to value things so killing it is even more wrong than killing a young child.[113] In terms of value content (but not value magnitude), Marquis explains, “the future of a standard fetus includes a set of experiences, projects, activities, and such that are identical with the futures of adult human beings and are identical with the futures of young children. Since the reason that is sufficient to explain why it is wrong to kill human beings after the time of birth is a reason that also applies to fetuses, it follows that abortion is prima facie seriously morally wrong.” A system based on Marquis’ Future of Value Theory would disallow abortion in all but cases in which two futures of value were at stake, and from that point, Marquis provides no guidance on how to balance the two futures of value. Either way, elective abortion would be legally impermissible under his theory.
Finally, Catholic Doctrine Theory holds that abortion is nearly always seriously morally wrong from a religious standpoint.[114] Pope John Paul II stated the position of the Roman Catholic Church in the Evangelium Vitae – his encyclical letter on abortion.[115] Citing the need to clear the obfuscation surrounding abortion and ‘call things by their proper name,’ Pope John Paul II wrote that “procured abortion is the deliberate and direct killing, by whatever means it is carried out, of a human being in the initial phase of his or her existence, extending from conception to birth.” (italics in original).[116] As such, the moral gravity of abortion is that attendant to murder.[117]
While recognizing that most abortions are not undertaken lightly or for purely selfish reasons, the encyclical contends that reasons of protecting the health of the mother, preventing a child from being born with severe birth defects, or preventing a child from being born into conditions unsuited for children are illegitimate reasons to justify taking an innocent human life.[118] Pope John Paul II continues on, recognizing the innocence of fetal life, suggesting that not only is the fetus helpless in its physical state, but in its newness to the world around it as well.[119] Moreover, the fetus could not be considered an aggressor in any sense because it is weak and defenseless, even lacking “the poignant power of a newborn baby’s cries and tears.”[120] Making the abortion even more wrong, he explains, is the fact that the fetus is dependent on, and entrusted to the care of, the woman carrying the fetus.[121] Such an act of abortion, then amounts to more than murder. It is murder by a betrayal of a trust.
Given the totality of the scope of the Catholic Doctrine Theory argument, it is doubtful that a system based upon it would allow abortions to legally take place, even in cases where necessary to keep a woman’s life or health from being threatened. As the encyclical states, “these reasons and others like them, however serious and tragic, can never justify the deliberate killing of an innocent human being.” (italics in original).[122] It is clear that abortion will always be legally impermissible under this theory.

ANALYSIS

Canadian jurisprudence on abortion is currently in limbo. The Canadian Supreme Court has held that preventing a woman from having an abortion under some circumstances (at the very least if she requires the abortion to preserve her health or life) is inconsistent with the Canadian Charter of Rights and Freedoms because it denies women a right to security in their persons.[123] The abortion law of the United States is at present encapsulated by the following rule: The government may regulate or prohibit abortion after viability, and before viability may regulate only if it does not create an undue burden on the woman’s right to have an abortion.[124] Germany takes a harder stance, making abortion illegal in all cases except for a narrowly drawn list of exceptions and having a mandatory value-persuasion regimen a woman must complete before she may proceed with the procedure.[125]
The purpose of this essay was to try to find a coherent ethic by which future difficult cases could be judged in aid of having jurists reach the correct results without a lot of guesswork. Each country has a differing stance on abortion drawn from different national experiences. Do any of these legal positions roughly correspond with any of the four theories presented here? For any nation’s legal rules concerning abortion, whether the position matches one of the developed theories here discussed or does not match, this article can serve as a guide. Matching theories can be used to guide future decisions. If a theory does not match with the law, then it can at least be excluded from future consideration by jurists seeking the true underlying ethic of the law.
We will start with Canadian jurisprudence. Canadian abortion law is currently unknown. In the absence of a statutory crime of abortion, it may be that abortion is effectively decriminalized in Canada, at any time during pregnancy and for any reason. Clearly such a position would not correspond well to Catholic Doctrine Theory, since Catholic Doctrine Theory would proscribe abortion in all cases. Similarly, Future of Value Theory is an unlikely candidate for explaining current Canadian abortion law. Future of Value Theory would make abortion legally impermissible in a large number of cases. Psychological Personhood would explain a system that permits abortion in virtually all cases, as in Canada, but would fail to account for the Court’s underlying basis for allowing abortion in at least some cases constitutionally: a security right vested in the pregnant woman. Singer’s Sufferist theory, though, would account for this. If a fetus is unable to suffer (or if in late-term pregnancies its suffering counts for less), then disallowing abortion would cause suffering on the part of the woman seeking the abortion. Harming her in this fashion would violate her security (but not the security of the fetus).
U.S. abortion jurisprudence allows most all abortions until the fetus is viable, and thereafter severely regulates or prohibits them. This would fail to comport with Catholic Doctrine Theory or Future of Value Theory because abortions before viability are largely available. Likewise, Sufferist Theory is not a likely candidate, because abortion can be prohibited entirely even during periods in which a Utilitarian calculus would come out against the fetus and in favor of the mother. Psychological Personhood fails as well, but has a close parallel with American jurisprudence. American jurisprudence recognizes a right of privacy to reproduce or not without government interference until such time as another being (the fetus) has an interest against which the privacy interest of the mother must be weighed. Determining when the fetus becomes a person whose interests must be protected by the State is difficult, though, for deciding when the fetus truly becomes a separate being isn’t settled. Instead of using psychological criteria as does Tooley and his colleagues, American jurisprudence appears to use a physical standard: viability (when the fetus can survive outside the womb). It is possible that American jurisprudence uses a biological personhood standard to evaluate a psychological personhood claim.
Finally, German abortion law is fairly clear. Germany holds all abortions outside of narrow guidelines to be illegal and mandates that the State have an affirmative duty to protect fetal life. This jurisprudence would not fit well with Sufferist Theory, since Sufferist Theory would allow abortions based on a Utilitarian calculus that nearly always turns against fetal life. Psychological Personhood is also not a good candidate to explain German jurisprudence in this arena since Germany is not seeking to determine when along the path from conception to birth a fetus acquires rights. In Germany, this analysis has been reaffirmed by the court in Abortion I and Abortion II, saying that the human life begins at conception and that dignity coheres with the individual for the entire duration of life. Catholic Doctrine Theory comes close, in that it would take a hardline stance against abortions (since there is never a justification to take an innocent human life). However, it would not allow for there to be exceptions in cases such as the German Constitutional Court allowed. Donald Marquis’ Future of Value Theory fits these rules nicely, though. Like Germany, a system based on his theory would protect fetal life co-equal with that of adult human beings. Depending on how we judge between harms to two lives with futures of value, Marquis could allow exceptions for saving the life or health of the mother. A particularly nice fit, though, is found in Germany’s unusual allowance for abortion in cases of severe birth defects to the child. Since a child with severe birth defects is very unlikely to have a future in which they value things (compared to a child without the birth defects, or compared to the pregnant woman), it may be permissible to end their lives.

CONCLUSION

This essay attempted to lay out the differing constitutional laws regarding abortion of Canada, the United States, and Germany, and find rough matches for them among assorted ethical theories in an effort to provide jurists and academics with guidance in solving future cases. An analysis of four separate ethical theories on abortion found three of them to have parallels to the jurisprudence of the three respective countries discussed in this paper. A fourth ethical theory did not closely resemble the abortion law of any of the countries studied here.
It is the conclusion of this article that scholars of Canadian Constitutional law who are interested in abortion take some time to become more familiar with Peter Singer’s writings on the role of suffering in the wrongness of killing. Accepting this view in law may have some far-sweeping changes that may need to be examined (particularly in the realm of the rights of non-human animal species). Canadian jurists encountering difficult cases not clearly settled by Canadian Constitutional law might consider applying Singerian philosophy to better aid them in finding the answer which best comports with their previous Constitutional law on abortion.
Scholars of United States abortion jurisprudence should become more familiar with personhood theorists, both of the biological and psychological varieties. Understanding more about these theories may help Americans find a more consistent criteria for determining when a being becomes a separate entity (Is it purely biological or is there some psychological element? Is it both?). A solid understanding of personhood theories may help us understand why our privacy right gives way to the right of a fetus, and why our Supreme Court has chosen the moment of viability to exemplify that time. Is there a better time, or a better measure of when this happens? Psychological Personhood would, a la Michael Tooley, would say that there is.
Readers interested in German jurisprudence and dignity issues may want to read Marquis’ writings concerning the standard abortion arguments, why they are wrong, and why his theory fits well with many of our seemingly contradictory moral intuitions. His theory, based around entities with Futures of Value, can explain Germany’s unusual position in regard to abortion, as well as explaining some of Germany’s strange abortion quirks not found in other Constitutional law frameworks. Marquis’ theory also provides a solid foundation on which difficult cases can find a decent justification for an answer which flows from the rest of the jurisprudence on the issue.
Finding a coherent and consistent ethic on which to base a nation’s abortion law can help prepare individuals to accept and understand the right answer to a case or controversy before it is litigated. Such advance warning serves not only the interests of individuals in society who can know the types of actions in which they are permitted or prohibited to engage, but also the interests of judges and academics who can use the underlying philosophy as a way of guiding their answers to the right conclusion in line with prior precedent. In a world in which alternative reproductive technologies and genetic medicine are rising in popularity, the need to be able to anticipate solutions to these problems grows. Unusual cases are easy to come by and hard to make get rid of, but, hopefully, this article makes disposing of those cases a little easier.
[1] RAYMOND TATALOVICH, THE POLITICS OF ABORTION IN THE UNITED STATES AND CANADA: A COMPARATIVE STUDY 29, (1997).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id., at 30.
[11] Id., at 32.
[12] Id. Citing another authority, Tatalovich explains: “British influence was still strong in Canadian society during the sixties, especially in legal circles. The Canadian Criminal Code, including its abortion provisions, was adapted from British criminal law in 1892 and tended to follow the latter. The Judicial Committee of the Privy Council had served as Canada’s final court of appeal for constitutional questions until 1949, and British legal precedents were authoritatively cited in most fields of Canadian law.” Id.
[13] Id., at 34.
[14] Id., at 73.
[15] Id.
[16] The Canadian Constitution in 1975 was largely contained in the British North America Act of 1867, which defined the limits of judicial authority. Id.
[17] Id., at 73.
[18] Id.
[19] Id.
[20] Id., at 75.
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] While the majority of the Court based its reasoning around the concept of security as guaranteed by the Canadian Charter of Rights and Freedoms, Justice Wilson (the first woman appointed to the high court) argued in the same vein as American jurisprudence on abortion. While not basing her argument explicitly on privacy, she nonetheless contended that the ‘liberty’ guaranteed to Canadian citizens meant that while the State need not approve of every decision made by individuals, there were some decisions that it must tolerate and respect. “A woman’s decision to terminate her pregnancy falls within this class of protected decisions” because it “will have profound psychological, economic, and social consequences for her.” This language echoes strongly the arguments made by the United States Supreme Court concerning protected areas of personal life through its explication of the doctrine of privacy rights. Id., at 77.
[26] Id., at 79.
[27] Id.
[28] Id., at 80.
[29] Id.
[30] Id., at 84.
[31] Id., at 93-95.
[32] Id.
[33] Id., at 27.
[34] Id.
[35] Id.
[36] Id., at 27-28.
[37] Id., at 28. Tatalovich suggests that there were no active prosecutions for abortion in the United States until the twentieth century. Id.
[38] Griswold v. Connecticut, 381 U.S. 479 (1965).
[39] BARRY R. FURROW, et. al., BIOETHICS: HEALTH LAW AND ETHICS 49 (5th ed. 2004).
[40] Id.
[41] Id. While the majority signed onto Justice Douglas’ opinion, Justices Warren, Goldberg, and Brennan based their analysis on the Ninth Amendment, which states that “The enumeration in the Constitution of certain rights will not be construed to deny or disparage others retained by the people.” Id.
[42] Id. Douglas located ‘zones of privacy’ in the penumbras of the rights of association from the First Amendment, the right against quartering of soldiers in the Third Amendment, and in the right against unreasonable searches and seizures from the Fourth Amendment. Douglas also indicated that the right could be seen in the Fifth Amendment’s guarantee against self-incrimination. Id.
[43] Id.
[44] Eisenstadt v. Baird, 405 U.S. 438 (1972).
[45] Roe v. Wade, 410 U.S. 113 (1973).
[46] BARRY R. FURROW, et. al., BIOETHICS: HEALTH LAW AND ETHICS 51 (5th ed. 2004).
[47] Id., at 53.
[48] Id.
[49] Id., at 54.
[50] Id.
[51] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).
[52] BARRY R. FURROW, et. al., BIOETHICS: HEALTH LAW AND ETHICS 57 (5th ed. 2004).
[53] Id., at 61.
[54] Id., at 61-64.
[55] Id., at 61.
[56] Id.
[57] In Stenberg v. Carhart, 530 U.S. 914 (2000), the Court noted the principles of current abortion law in the United States, summarizing them as follows. “First, before ‘viability… the woman has the right to terminate her pregnancy.’ Second, ‘a law designed to further the State’s interest in fetal life which imposes an undue burden on the woman’s decision before fetal viability’ is unconstitutional. An ‘undue burden is… shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.’ Third, ‘subsequent to viability, the State in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’” (internal citations omitted) Id., at 68-69.
[58] EDWARD J. EBERLE, DIGNITY AND LIBERTY 164-65 (2002).
[59] Id., at 166.
[60] Id., at 165.
[61] Id.
[62] Id., at 166.
[63] Id., at 170.
[64] Id., at 171.
[65] Id.
[66] Id.
[67] Id., at 165.
[68] Id., at 166.
[69] Id.
[70] Id.
[71] Id.
[72] Id., at 171-72.
[73] Id., at 172.
[74] Id.
[75] Id.
[76] Id.
[77] Id.
[78] Id.
[79] Id.
[80] Id., at 172-73.
[81] Id.
[82] Id.
[83] Id., at 173.
[84] Id.
[85] Id.
[86] Id.
[87] Id.
[88] Id.
[89] Id.
[90] Id.
[91] Id., at 174.
[92] Id.
[93] PETER SINGER, UNSANCTIFYING HUMAN LIFE 188-91 (2002).
[94] Id.
[95] PETER SINGER, ANIMAL LIBERATION 7 (2002).
[96] PETER SINGER, UNSANCTIFYING HUMAN LIFE 188-98 (2002).
[97] LOUIS P. POJMAN & FRANCIS BECKWITH, THE ABORTION CONTROVERSY 210 (1998).
[98] Id., at 211.
[99] Id., at 212.
[100] Id.
[101] Id.
[102] Id.
[103] Id., at 213-14.
[104] Id., at 230-32.
[105] Id., at 344-45.
[106] Id.
[107] Id.
[108] Id., at 345.
[109] Id.
[110] Id.
[111] Id., at 346.
[112] Id.
[113] Id., at 347.
[114] JOHN ARRAS & BONNIE STEINBOCK, ETHICAL ISSUES IN MODERN MEDICINE 330 (5th ed. 1999).
[115] Id.
[116] Id.
[117] Id.
[118] Id., at 331.
[119] Id., at 330.
[120] Id.
[121] Id.
[122] Id., at 331.
[123] See Part I, supra.
[124] See Part I, supra.
[125] See Part I, supra.