Abortion as Self-Defence, Part III
The Punitive Nature of Self-Defence
The South Australian law on self-defence has an interesting section under ‘Reasonable Proportionality’:
“A requirement under this Division that the defendant’s conduct be (objectively) reasonably proportionate to the threat that the defendant genuinely believed to exist does not imply that the force used by the defendant cannot exceed the force used against him or her.”
To come back to the example of lethal self-defence against rape, rape is usually considered a lesser crime than murder. However, it is acceptable to kill someone to defend one’s self from rape. One way this can be deemed to be acceptable is due to the concept of punishment and just consequences that is intertwined with the concept of self-defence. In short, we are able to accept the injury caused to an offender through self-defence because ‘they deserved it’. Their injuries were a just consequence of their actions. In an ideal situation of self-defence, the antagonist will always be at least somewhat deserving of the response they receive from the defender. Obviously this cannot always be the case; most clearly in a situation where the defender has mistaken the nature of someone else’s actions and responds with force to protect themself from a non-existent threat. But this can hardly be said to be the case in pregnancy, as the unborn child does not possess any intent and the physiological processes of pregnancy are well-known.
So what force is used in an abortion? Needless, to say, it results in the death of the unborn child and is therefore significant. Early abortions can be medical or surgical; medical involves the detachment of the unborn child from the uterine wall and its expulsion from the uterus; surgical involves the removal of the unborn child from the uterus through a suction tube. In later pregnancy, the unborn child may be removed through the cervix piece by piece using surgical instruments. In intact dilation and extraction – a procedure illegal in the U.S.A, but not Australia – the infant is delivered in breech position and the base of the skull is punctured with a sharp instrument while the head remains in the birth canal. Induction abortions involve the delivery of a whole infant; it is difficult to discover how commonly foeticidal injections (such as digoxin and potassium chloride) are used prior to induction abortions, but the injections themselves are problematic, due to the potential for pain (for comparison, condemned criminals are anaesthetised prior to the lethal injection, and the American Veterinary Medical Association considers the use of potassium chloride for euthanasia “unacceptable and condemned” on non-anaesthetised animals).
In abortion, the unborn child is subjected to forces sufficient to cause its death, often in a violent and potentially painful manner. In the vast majority of cases, this exceeds any potential injury that the unborn child is likely to cause the pregnant woman. This excess cannot be found acceptable on the grounds of punishment because the unborn child lacks any culpability for its actions, and so other excuses must be found to justify such processes.
“It will be a partial defence to murder, reducing the offence to manslaughter, if, despite the defendant believing his or her actions were necessary, the conduct was not reasonably proportionate to the threat that the defendant believed existed.”
South Australian Law on self-defence
It is true that no means exist to end a pregnancy – prior to foetal ex-utero viability – that do not entail the death of the unborn child. It is then necessary to consider the concept of proportionality. Are the actions (and consequences thereof) of the unborn child sufficient to justify its life being ended in order to cease them.
This is truly a matter of personal perspective, as what one person will consider reasonably proportionate will differ from what another person believes is reasonably proportionate. However, it is important to remember that there can be imagined inescapable and yet time-limited situations in which lethal self-defence would be entirely inappropriate. For example, being gently prodded by someone with the knowledge that this will continue for nine months if the person is not killed (to further the example, imagine the person doing the prodding has no choice in the matter, or even that they are a small child). This is not to compare pregnancy to gentle prodding, but rather to point that that the inescapability of a situation does not automatically justify the use of any force necessary to end it. The important question to consider is whether or not the circumstances of pregnancy justifies the death of a child in order to end it.
The Importance of the Defender’s Perspective
“A person is entitled to use such conduct as he or she genuinely believes is necessary for a ‘defensive purpose’ (that is, in self-defence or in defence of another, or to prevent or end an unlawful imprisonment) under s 15 Criminal Law Consolidation Act 1935. This will be a complete defence to an offence, including murder, as long as the force used was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat the defendant genuinely believed to exist”
There is both a subjective and an objective component to self-defence. The subjective perspective is that of the defender, who must genuinely believe there to be a threat against which they must defend themselves. The objective component, in the case of murder, is that the conduct of the defender must be proportionate to the threat that they believed existed. The proportionality of the conduct is not determined by the defender, but by the criminal justice system.
So the nature of the threat that was believed to exist is important. The Guttmacher Institute reports on the most common reasons why women have abortions (here and here). They are listed (in no specific order) below:
- Felt too young to have a child
- Felt they had finished having children
- Unable to afford a child
- To avoid disruption of employment or education
- Concern over impact upon care of already born children
- Lack of partner support
- Relationship difficulties
- Desire not to be a single mother
Take these reasons, and consider if they constitute valid grounds for lethal self-defence. It is interesting to note that these reasons, for the most part, relate to circumstances once the child is already born. So if these reasons might be considered to be justifiable ground for lethal self-defence against the unborn child, is it not logical to likewise consider them justifiable grounds for lethal self-defence against the born child- who is, after all, having a much greater impact upon these circumstances than the unborn child? And if we cannot accept these reasons as justifying lethal self-defence against the born child, it follows that the only way to justify them being applicable to the unborn child is by considering the unborn child as less human than the born child (see The Embryo as a Living Human Person).
(In Australia, at least, a pregnant woman is protected in her employment or education by anti-discrimination laws , and medical care is free.)
One might argue that the circumstance of the pregnancy, i.e. the particular use of the woman’s body by the unborn child, constitutes grounds for self-defence regardless of whether or not this is what the pregnant woman is basing her decision to have abortion upon. However, the legitimacy of self-defence rests on the belief of the defender. An (somewhat frivolous) analogy might be that a Porsche driver shoots someone in a pick-up truck in order to prevent them pulling in next to their car and scratching it. Unbeknownst to them, the pick-up driver had a handgun in the glove compartment and was planning to shoot them after they had parked. However, this was not what the Porsche driver was defending against; it was not the threat they perceived. Ergo, I would argue, the nature of the act is changed and it cannot considered legal self-defence. Likewise, a woman who has an abortion because she believes that a child will damage her career prospects does not have legitimate grounds for self-defence, because she is defending her career rather than her body.
My conclusion would be that lethal self-defence cannot be justified by the reasons that the majority of women give for having an abortion. The exception would be the situation where the mother is unable to survive if her pregnancy continues; but this defence of life – which does not always necessitate the death of the unborn child – is a far cry from defending an economic, social or educational situation. The argument for self-defence is also rendered inapplicable in the case of an unborn child who is aborted because they have a disability.
Next post will sum up the topic of Pregnancy & Self-Defence, and will pose a challenge to the reader that I will hope will stimulate some serious thought on the topic.