Back Alley Abortions Part I: Legislating Morality

Legislating Morality

The most prominent argument against criminalising abortion is that such an act would force women to go to the ‘back alley butcher’ – an unlicensed, unskilled abortionist who is likely to leave them injured, if not dead. It can be summed up thusly; criminalising abortion will hurt women. And there are many people, both pro-choice and pro-life, who are concerned about this, and that is a credit to their sense of compassion. As for myself, as someone who cares deeply about justice and protection of the vulnerable – born or unborn – this concerning scenario is not something that I would ever like to see happen. In the following series, I will try to address this and other concerns about criminalising abortion. In this first post, I will be looking at the idea of legislating morality.

Should we legislate morality?

According to certain polls, almost half of Americans describe themselves as pro-life. However, in a NARAL commissioned poll, 45.5% of respondents who were against abortion personally nonetheless responded that they didn’t believe a woman should be prevented from making that decision for herself – and, by implication, legally accessing it.  These poll results suggest that a fair percentage of self-described pro-life Americans would be accepting of abortion as a personal choice, along with the 23.2% who responded that abortion is morally acceptable. Only 24.7% responded that they believed abortion was morally wrong and should be illegal.

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But the above poll asked very specific questions and lacked a middle ground. The second option, which the 45.5% of respondents selected, is not a middle ground on legislation, since it effectively states that legislative restrictions should not be in place and didn’t leave an option for partial restriction. The next option was that abortion should be illegal, which many would perceive as too much an all-or-nothing hardline approach. In polls that include a middle ground, such as legal under a few circumstances, or illegal in most circumstances, result show that up to 72% of respondents want some restrictions on abortion.

(It is also interesting to note how results changed according to whether the middle ground question used the word ‘legal’ or ‘illegal’ – with far more respondents likely to support restrictions if it was phrased as ‘few legal’ rather than ‘most illegal’.)

When asked if abortion should have increased restrictions or not be permitted, 50% of respondents answered in the affirmative. When the questions grow more specific and included the option of abortion only available in cases of rape, incest or endangerment of the mother’s life, 52% were in favour of either restricting to only these circumstances or complete restriction. Polls on restrictions according to the length of pregnancy are also revealing; while only 31% of respondents believe that it should be illegal in the first three months, this number grows to 64% for the second three months and 80% for the final three months.

(All the above poll results can be found here.)

So, many people have already answered the question on whether or not we should legislate morality, and it seems that the majority agree that we should – those who believe there should be no restrictions on abortion remain a minority, ranging from 19-27% in various polls. And once you agree that any restriction should be placed upon abortion, you have acknowledged that it is appropriate to legislate upon this issue, even if it is a moral one. If your ideology causes you to disagree with this, you have to accept that such a position will allow abortion for any reason at any point in the pregnancy, even if the woman is 38 weeks pregnant and has merely changed her mind on a whim (and perhaps you are reconciled to this).

Going back to the NARAL poll, what it does show is that there are those who are ‘personally pro-life’ but are not willing to absolutely restrict availability of abortion to others. In other words, they may find an action morally wrong, but are not willing to express their support for legislation upon that moral issue.

Is this a legitimate point of view? In one aspect it is fair enough. A state or country where all individual moral autonomy is suspended would hardly be ideal, and it’s fairly safe to assume that few would choose to live under such conditions. But when we consider that morality is about what is right or wrong, it’s clear to see that we already legislate upon it. Examples would be rape and child abuse. Of course, not all activities with moral aspects are legislated. Minor lies and adultery are examples of this. So what’s the difference? Perhaps one way to consider the applicability of legislation is to look at the impact of the activity, i.e. what is the justification for the limitation of moral choice? Child abuse and rape very clearly have a large impact on the victim. So I suggest that the questions to ask are, who is affected by the action in question, and how are they affected.

Who is affected by abortion?

  • the unborn child
  • the pregnant woman
  • the health system
  • the people who I guess you could call ‘abortion candidates’, such as individuals with Down Syndrome and consequently their families

How are they affected?

  • the unborn child is killed
  • the pregnant woman undergoes a medical procedure with associated risks; furthermore academic research (examples here, here, here and here) and individual anecdotes (such as Voices of Regret: Stories of Loss and Hope) show that there is a real potential for there to be future or ongoing negative effects as a result.
    – the health system: abortion is covered by public health insurance in Australia, meaning that there is a financial cost to the public health system. Potential negative consequences of abortion would lead to increased utilisation of the healthcare system and increase the healthcare burden.
    – Discrimination towards individuals with disability and their family due to their existence having become a ‘choice’ – either prenatally or postnatally (examples here and here).

Is the impact strong enough to justify legislation?

Is death not a strong impact? I don’t believe that there are any other situations where a human being is killed by deliberate intervention that is not legislated upon. Unless you don’t acknowledge the unborn child as a living human being – and given the serious consequences of this line of thinking, you need to be able to justify why – it is clear that the impact of abortion on the unborn child alone should be sufficient to justify legislation. The fact that abortion also has the potential to injure or cause long-term issues for the pregnant woman is also strong justification.

To be succinct, unless you believe that abortion has no more impact upon the persons involved (including the unborn) than an appendectomy, you have to consider that there is grounds for legislative control.


My thoughts are that once we accept that morality can be and is already legislated upon, and when we acknowledge the impact of abortion, then we can come to the conclusion that it is legitimate and justifiable to legislate on abortion. In many places we have already done so. In South Australia abortion is limited after 28 weeks of pregnancy, i.e. the state of South Australia has determined that the women should not have the moral autonomy to abort their unborn child once they have passed this point. If this is accepted, the question is not whether it is legitimate for legislation on abortion to exist at all, but rather what should be the extent of such legislation.