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Lower Limits and the ‘Right’ to Abortion

People spend a great deal of time debating the upper limits of abortion. But considerably less time is devoted to thinking about at what point abortion regulation should even kick in—that is, the lower limits of abortion law. I think that it follows from my arguments in Part II that the case for regulating abortion towards the earlier end of pregnancy is considerably weak, except insomuch as is reasonably necessary to ensure the health and safety of women undergoing the procedure. The embryo lacks any of the constitutive traits of personhood. It also possesses very little in the way of human embodiment. Unlike in later pregnancy, therefore, there are no compelling moral reasons to grant at least some protection to the fetus on account of its shared human form, or to discourage abortions that involve the violent destruction of that form. Moreover, since there is no morally transformative ‘moment’ either of conception or within conception, there is no important moral difference between very early abortion and contraception. The continuum of development from the beginning of the process of conception through to early pregnancy is nowhere punctuated by the arrival of a new, rights-holding being. Thus there is no reason based on moral status for regulating very early abortion in a way fundamentally different from the regulation of contraception.

When we consider these conclusions alongside the significant interests women have in procreative control, the bodily burdens of pregnancy, and the necessity of procreative control for sex equality, the result is that the burden of defence falls squarely on the proponents of regulation in early pregnancy. This lends considerable support for a framework which establishes a general legal right to abortion at least up to a certain gestational point. As opposed to mere abortion permissions, [1]

such as are found within British law, a recognized legal right to abortion, even if qualified, would mean that it is abortion regulation, not abortion practice, that first and foremost must answer to the law. This was of course the broad position adopted in the United States by Roe and later confirmed by Casey. Having recognized that American women enjoy a constitutional right to terminate a pregnancy as part of the broader right to ‘privacy’, the result of these decisions was to set up a standard of constitutional review which all state abortion regulations must pass. As we have seen, the modified Casey test required that restrictions, even in pursuit of a ‘legitimate aim’, such as the protection of women’s health or of fetal life, must not place an ‘undue burden’ on women seeking abortions by putting a ‘substantial obstacle’ to abortion in their paths.

The question of what does indeed amount to an ‘undue burden’ under the Casey test naturally implicates broader questions about exactly how abortion restrictions ought to be scrutinized once a fundamental right to abort, time-l imited or otherwise, is established. Generally speaking, the first stage of the test for a justified infringement of fundamental rights is that the measure is in pursuit of a legitimate aim and is rationally connected to that aim. In other words, assuming that protection of women’s health is a legitimate aim of abortion regulation, it would still need to be demonstrated that the regulation in question does in fact contribute to making abortion safer, and that it is not inefficacious, futile, or counter-productive. The Supreme Court of the United States demonstrated the importance of the rational connection test in the recent Hellerstedt decision when carefully scrutinizing and rejecting Texas’s claims that its TRAP law requirements were necessary for safeguarding women’s health. Delivering the majority judgment, Justice Breyer underscored the fact that, when asked, Texas had not been able to produce a single case in which its new requirements had actually ensured a better health outcome for a woman.23

As another example, a robust ‘rational connection’ condition might also require that legal measures purporting to protect the fetus (if and where that is deemed a legitimate aim) are actually in the service of saving fetal life, and do not function merely to make abortion more cumbersome or unpleasant for women undergoing it.

But it is often thought that the terms for breaching fundamental legal rights also encompass a proportionality condition, that is to say, the gains made in pursuit of the legitimate aim must be worth the level of infringement of the right. In a recent volume, Veronica Undurraga has championed the use of proportionality reasoning in the constitutional review of abortion law—a standard of constitutional scrutiny that has been notably missing from many of the most significant judicial decisions on abortion.'[2] [3] As Undurraga rightly states, proportionality review of abortion regulation ‘requires judges to order the questions they must address in consecutive stages and encourages them to reflect on substantive issues too often neglected in abortion adjudication’. These ‘substantive issues’ include questions such as whether criminalization is in fact effective in protecting unborn human life, whether there are alternative means of protection less onerous for women than criminalization, and whether the costs of abortion restrictions for women are worth the net gain in protection of fetal life—what Undurraga calls the ‘strict proportionality test’. It is this third limb of the test which calls for the greatest exercise of judgement, requiring, for example, a weighing of the benefits of regulation for the protection of fetal life against their negative impact on the lives of women. As she elaborates, ‘in the final stage of the analysis, courts must assess the law on balance: asking whether the protection it affords unborn life is worth the sacrifice it demands of women’Th

A standard of constitutional scrutiny of abortion regulation which encompasses proportionality considerations should require, therefore, that the burdensomeness of abortion restrictions which aim to protect fetal life are always balanced against the amount of fetal life they actually have the propensity to save. The limitation must make enough of a difference to be proportionate. A legal policy of mandated preabortion counselling designed to dissuade women out of having an abortion might not meet this standard of scrutiny if it significantly stalls thousands of women trying to access abortion every year, whilst only successfully discouraging one or two. Likewise, a ban on a particular method of abortion could fail to meet the standard of proportionality if the likely result is only that most of the fetuses which would have been terminated under one method are terminated under another, and if the increased riskiness for women of the alternative procedure is not negligible.

One helpful question for a proportionality assessment of abortion restrictions designed to protect the health and safety of women is to ask whether the regulations mirror those that are required for other medical procedures of a similar nature and complexity. For instance, if the regulation requires disclosure to the woman of all possible risks associated with abortion, are the same disclosures required of all procedures presenting a comparable level of risk? If it is seriously unlikely that such measures would be put in place with regard to similar procedures, this will be a good indication that the measures do not enhance health and safety in a proportionate way. A provision which requires abortion clinics to maintain hospital-standard hall widths will be grossly disproportionate if the contribution to health and safety is minimal, is widely in excess of the health and safety standards for similar medical procedures, and in effect disenfranchises countless women of the abortion right.

Furthermore, on a strict proportionality standard of review, mandatory waiting periods for abortion or mandatory ultrasound provisions could be deemed invalid for being disproportionate even if they do not place a ‘substantial’ obstacle in the way of women seeking abortion. It will be enough that a provision imposes some burden that cannot be reasonably justified by the gains. Strict proportionality review is, in essence, a balancing exercise. Consequently, no regulation will automatically pass the test in virtue of the facts that it furthers some amount of

25 ibid 95.

legitimate aim and that the restriction of the right is not too severe. In any assessment, everything will still depend on how the legitimate gains match up to the imposition, assuming, that is, that a firm relationship between the legal measure and the intended outcomes can be established.

Taking abortion seriously as a fundamental right therefore requires a legal framework that both places the burden of justification squarely on advocates of abortion restrictions and embraces a proportionality standard of review which looks to the efficacy and the effect of regulation, not only the legitimacy of its stated aims. In this analysis, brute fact-finding and evidence concerning the practical impact of regulatory provisions will assume a huge importance. The Supreme Court’s decision in Hellerstedt is notable for the significance it attributed to such details, drawing on specific evidence about the effects of Texas’s ‘HB2’ (‘TRAP’) law. Those details concerned both the provisions’ realistic contribution to women’s health and the extent to which they hampered the abortion right. Consequently, the standard of review engaged represented an important step in the right direction for abortion rights protection in the United States.

  • [1] See ibid. Contrary to the congressional findings, which flatly denied the possible medical advantages of partial-birth abortion over other methods, Ginsburg relayed the wealth of scientific evidencethat the procedure can be the considerably safer form of late abortion, arguing that the 2003 ban wastherefore unconstitutional in failing to provide for a ‘health exception’, as she points out, directly contrary to the Supreme Court precedents in Stenberg v Carhart (530 US 914 (2000)) and Casey.
  • [2] Whole Womans Health (n 7) 28.
  • [3] Veronica Undurraga, ‘Proportionality in the Constitutional Review of Abortion Law’ in RebeccaCook, Bernard Dickens, and Joanna Erdman (eds), Abortion Law in Transnational Perspective: Casesand Controversies (University of Pennsylvania Press 2014).
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