Banning Abortion: Justified? By Shreshth
by  Shreshth, M.Sc. Physics NIT Jalandhar

Abortion is the act which concerns this article for it has reinvigorated debates between the proponents and the opponents, where both sides can be seen to argue for their conclusions since the overturning of Roe Vs Wade ruling (1973), and its follow-up Casey Vs Planned Parenthood (1992) by the Supreme Court of the United States of America in Dobbs Vs Jackson (2022). Apparently, the two sides have clearcut premises in the USA, summarizing their positions as being pro-choice and being pro-life respectively. Evidently, there are two aspects of the issue, viz legal and moral, the first of which is subject to Constitutional Law, which is dependent on the history and the tradition of the country in which it is practiced; while the second forms the heart of this article since it is the morality of abortion which validates or invalidates its banning, thereby offering or denying a justification. This article is hereby divided into four parts of elaboration, viz the recent legal history of the matter, morality of abortion, excuses and fallacies, and conclusion. Constitutionally, abortion laws were state specific in the USA until and unless the state laws concur with the Fundamental Rights before Roe, and its follow up, Casey were decided to interpret abortion as an act, which is guaranteed as an implicit corollary of the 14th Amendment, thereby ceasing all authority from states to regulate abortion, only to be overturned in 2022 that the interpretation, in Roe and Casey, was incorrect and thus reinstating the states’ authority to regulate abortion. In India, the academic and public discourse had been pervaded to discourage female infanticide and feticide, before their banning in 1870, by Prevention of Female Infanticide Act, and 1994, by Pre-Conception and Pre-Natal Diagnostic Techniques Act respectively, only to a pan-India enactment of Medical Termination of Pregnancy Act in 1971 and later amendments thereof, predicated upon the promotion of equality of outcome. The mens rea predicating the performance of acts such as Female feticide and infanticide was considered malicious and corrupt regardless of the legality of the acts, for what follows such acts are the homicide of the unborn and the born respectively, the tragedy of a conscious human being committing an otherwise punishable homicide without incurring any guilt whatsoever, and the complete disregard to nobility of the act of giving birth. Thus, both acts were deemed not only immoral but also extensively evil. Surprisingly, when it comes to Medical Termination of Pregnancy, the superset of female feticide, Abortion, magically becomes hunky-dory with mother’s consent. Are the consequences of abortion not of the same character, if not more repugnant and debased, as those of the former two acts? The former acts were and are considered immoral, and rightly so, but the latter is not. It is performed at the whims of abettor, the mother, and by the actions of the committer of the homicide, the surgeon. Unfortunately, it is protected under the MTP Act, which has guaranteed a pan-India rampant performance of the otherwise categorically punishable feticides. According to a 2015 study by Dr. Susheela Singh with several others: The incidence of abortion and unintended pregnancy in India; approximately 15.6 million abortions occurred in that year. Frequently, many propositions are passed as principled arguments in favor of abortion, only to be found, after a rigorous inspection, to be excuses based on two fallacies, namely the viability fallacy and the sentient fallacy. The most unfortunate victim of the viability fallacy is the Indian judiciary itself. The arbitrariness of the standard, which mistakes the ability of the fetus developing outside the womb for the standard of life of the fetus, thereby implicating the fetus as not human life prior to the fetus achieving viability, is direly problematic as in the phase of growth of a human being, there are numerous environments, in which she or he may not survive but that does not attest a homicide as moral, even if legal; since determining the viability of a senescent human female, performing a job of back-breaking labor, at a construction site as the standard environment, is pathological and repugnant. Thus, the standard environment for determining the viability of the fetus ought to be the one as necessitated naturally. The sentient fallacy presumes the lack of memory, insensitivity, and unconsciousness of the fetus as concrete moral bases for abortion. If this were true, then the homicide of a person in coma who suffers from memory loss, or of a person in deep sleep would stand justified as well. The baseless expansion of the domain of implementation of abortion purposed at accounting for the statistically marginal crimes e.g., rape and incest, is the first excuse. The second baseless expansion is on the pretext of fatality of both mother and the baby during birth. In fact, the provision of abortion was legal in many states of the USA, only to be undertaken as a means of last resort in case of possible fatality of either or both the mother and the baby during delivery due to the severity of the condition or the procedure or both. The unfortunate parents are severely psychologically affected in many of such marginal cases despite. It does not, however, necessitate that this specific and marginal action bases the act and provides a general principled argument. The reader shall be able to understand the nuances of the act and why developing a general principled argument for abortion is an impossible task as non-violence is one of the five fundamental attributes of a civilized human being. The distinction between vice and virtue, good and evil, right and wrong is not subservient to a Supreme Legislation which aims to dissolve it. Thus, the notion that the legality of the matter, even an incorrect interpretation thereof, cannot be a ground for the justification of the act. All in all, abortions driven by a complete disregard for a developing nascent human life are pathological, immoral, and evil, and thus, ought to be discouraged, even by the State.

PUBLISHED ON SUNDAY 19th February, 2023
Reviewed by     Physical Science Society