05.05.2004

On abortion and politics of conscience

It is conventional in British mainstream politics to treat abortion law as an issue of ‘conscience’ on which MPs get a free vote. The same principle of ‘conscience’ allows anti-abortionist doctors to refuse to perform terminations, but continue working in jobs where they might be called to do so.

The question could become an even bigger issue for the Respect unity coalition in the unlikely event that George Galloway is elected as an MEP; indeed, he is currently listed as a Respect MP and will no doubt ‘vote his conscience’ on abortion if the issue comes up in parliament between now and the next general election. As things stand, of course, Respect does not have a position on the abortion question, merely vague diplomatic sentiments about “self-determination” in sexual matters. But we have already argued that Respect should take a position on the abortion question: that of fighting for a woman’s right to choose - the position shared by communists, the Socialist Workers Party and most of the left in Britain. If we win, what then happens about ‘conscience’?

In fact, anti-abortionism is not a matter of freedom of conscience, for two reasons. The first is about law, power over others and the duties of elected representatives (and doctors), as distinct from private individuals. The second is that modern anti-abortionism is not mandated either by christianity or islam. It is merely a political position which has been adopted by religious organisations recently - since the 19th century. It is, like classical anti-semitism, an aspect of the resistance of the clergy and the petty proprietors to capitalist modernity. In this light, following anti-abortionist themes is not much different politically from borrowing the tsarist police forgery The protocols of the elders of Zion to attack the ‘Jewish conspiracy’.

Conscience, law and democracy

The idea of ‘freedom of conscience’ is that people should not be penalised by the state for their religious ideas or religious practices, so long as their practices keep within the general law. It poses complicated questions about what general laws should be adopted and how far there should be exemptions for religious belief. One example, to take a live issue today, is whether religious organisations should be exempted from laws prohibiting discrimination against lesbians and gay men, and if so, to what extent. But these questions are not relevant to the present issue. Anti-abortionists do not propose that there should be laws which say that churches should be entitled to impose religious sanctions (excommunication, penance) on women who have abortions or doctors who perform them. They propose that there should be general laws affecting everyone - whether they are catholics, protestants, jews, muslims, hindus, buddhists, pagans or atheists - which prohibit or sharply limit the availability of abortion.

In this context the demand that elected representatives should be free from party discipline on the abortion question is not a demand for freedom of conscience. It is a demand for freedom to impose the representative’s religious views on electors who may have voted for the representative in the belief that they were voting for a pro-choice, not an anti-abortion, party. It is, in other words, directly opposed both to liberty of conscience and to political democracy.

Very similar arguments apply to doctors who refuses to perform abortions. No-one is compelling them to work in a post that requires them to do so. It is their choice. But the patient is not so lucky. The availability of doctors to perform abortions is dependent on NHS resources. If anti-abortionist doctors take medical training at public expense, take up such posts and then refuse to perform lawful abortions, they may - if there are enough of them - deny the patients their legal rights. This was certainly the case in some NHS areas in the 1970s. The doctor’s freedom of conscience does not consist in refusing to perform abortions: it consists in deciding not to work in a post in which he or she might be required to perform them. Once they take up the post, liberty of conscience implies that they should not impose their religious views on patients.

Religion and politics

Religion is about the relationship between humans and god, or gods. It overlaps with politics to the extent that god, or the gods, are taken by adherents of many religions to have laid down rules by which humans are to live and which directly affect their relationship with other humans. Rules affecting forms of worship, and ‘purity’ regulations like the prohibition of alcohol to muslims, do not pose problems for the idea of freedom of conscience. Rules for the subordination of women and children to husbands and fathers, found in both christianity and islam, do pose such problems.

When we encounter rules of this type, an unavoidable question is raised by the idea of freedom of conscience. This is whether, at one extreme, they are actually necessary parts of the religion - that is, rules without which christianity would cease to be christianity or islam to be islam; or whether, at the other extreme, they are merely rules which have been adapted to contemporaneous politics or adopted by clerical castes in defence of their claims to social superiority and to exploit their ‘communities’ through alms or tithe. A classical example of adaptation to the politics of the times is the claim that only divine-right monarchy is a legitimate form of government. This claim was made both by christian and muslim writers in medieval times, but has been marginalised more recently. Medieval examples of defence of caste interest can be found in the old catholic canon law rule that a bishop can only be convicted on the evidence of 72 eye-witnesses (Gratian Decretum 2 q 4 cc 2, 3) and the claim by some sunni scholars of the same period that allah forgives up to 70 sins committed by a cleric but not one committed by a layman (Crone Medieval islamic political thought 2004, p336).

In general, freedom of conscience means that we suspend judgement, for official purposes, as to whether particular religious beliefs are true or false. At the border of religion and politics described in the last two paragraphs we cannot do so. We must form both a judgement as to what the state should and should not coerce - what should be the law - independent of religious grounds, and a judgement as to whether the convictions of religious believers should be taken into account in this decision. This latter judgement cannot avoid taking into account both the claimed grounds for their belief and the whole history of their religions as they affect the matter.

Both islam and christianity claim that there is a single creator god, who made the world and everything in it. Both also claim that there are books of revelation which lay down the rules by which humans ought to live: for christians the canonical Bible, for muslims the Koran and the hadith, which transmit the statements of the prophet. In both cases, the revelations are both incomplete and - as all words are - in need of interpretation. Logically, if god made the world, including the capacity to reason, human understanding of the nature of the world and the human species can aid the interpretation of the revelations. This has been a disputed issue within both christianity and islam since the beginnings of both religions. But the use of reason about the creation in interpretation is unavoidable to the task of judgement at the borders of religion and politics, because without it we are left only with the personal authority of the imam or pope as to the meaning of religion; and, as a result, cannot possibly defend freedom of conscience.

Biology and history

The human population, like that of other animals, episodically presses on the limits of the natural resources on which we live, giving rise to famine. War and politics can also create famine. Famine conditions in turn affect pregnancy. In general between 15% and 20% of all pregnancies end with spontaneous abortion (miscarriage) or stillbirth. Under famine conditions, however, these figures rise: in the famines caused by the Chinese Great Leap Forward and Cultural Revolution, spontaneous abortions rose by 30%-50% (Yong Cai and Feng Wang Misfortune before birth: intrauterine mortality in China 1955-1987). These are acts of ‘nature’ rather than of human will. But assuming that a creator-god made us, he made us such that starvation leads the pregnant woman, quite irrespective of her will, to spontaneously abort the embryo or foetus. If the embryo is a separate life from the moment of conception, human biological nature nonetheless sacrifices this life to preserve the life of the mother.

If spontaneous abortion is part of our biological nature, the need for birth control to avoid creating famine conditions is equally so. For the overwhelming bulk of human societies that have been studied by history and anthropology, the primary method of birth control has been infanticide and infant abandonment. Pre-christian, pre-islamic and pre-buddhist societies in their large majority have had strong social rules, some of them religious, requiring infanticide or infant abandonment in certain circumstances. Christianity, islam and buddhism all condemn infanticide, islam most clearly (Koran 17:31: “Kill not your children for fear of want; we shall provide sustenance for them as well as for you”; the same point at 6:151). However, buddhism has made little practical impact on the practice, and neither christianity nor islam succeeded in eliminating child abandonment, instead creating charitable institutions to handle it (see John Boswell The kindness of strangers (1988), on the christian middle ages; Jamila Bargach, Orphans of islam: family, abandonment and secret adoption in Morocco (2002) on a modern islamic society).

The underlying truth is that the Koranic claim that “we shall provide sustenance for them as well as for you” is as unrealistic, taken literally, as is Jesus’ suggestion that his followers should imitate “the lilies of the field [who] toil not, neither do they spin” (Matthew 6:28; the whole passage at 6:25-34). Human societies need to control their fertility. If contraception is unavailable or fails, this means abortion; if abortion is unavailable or fails, it means infanticide and infant abandonment. Contraception is undoubtedly preferable to abortion and abortion to infanticide. But the availability of relatively safe abortion, and of relatively effective contraception, is the product of modern high technology; we may yet find ourselves (hopefully temporarily) returned by war or economic dislocation to a world in which these kinder options are unavailable.

‘Thou shalt not kill’

The general prohibition of killing other humans is common to the revelations of christianity and islam: “Thou shalt not kill” in Exodus 20:13; “Take not life, which god hath made sacred, except by way of justice and law” in K 6:151 and K 17:33. The first precept of Buddhism is more extensive: “I undertake to abstain from harming living beings” is taken to mandate vegetarianism by a narrow interpretation of ‘life’ which supposes that plants are not alive. All these prohibitions form the core of religious arguments against abortion. Since the idea that we ought not in general to kill other humans is much more broadly common ground, they are the most powerful arguments used by anti-abortionists.

The question these arguments inevitably seem to pose is: when does the embryo/foetus become ‘alive’ or ‘human’? Even for the buddhists this is a problem, discussed by Michael G Barnhart in Buddhism and the morality of abortion. In christian doctrine, from Augustine of Hippo (354-430) the foetus was only taken to be alive when it ‘quickened’: ie, could be felt to move within the woman’s womb. The modern christian doctrine that “life begins at conception” was adopted by pope Pius IX in 1869. Traditional sharia scholars down to the modern period took the same approach, though many fixed an arbitrary time of seven weeks for ‘quickening’ on the basis of readings in the hadith. Again, it is only in the last century that some have extended ‘life’ to conception or to the implantation of the embryo in the wall of the womb. Jewish law, in contrast, starting from the prohibition of killing in Exodus, held life to begin at birth: hence infanticide was killing, but not abortion.

Accepting the terms of these arguments leads into technical arguments about time limits. In these anti-abortionists have, over the last 30 years, tried to use advances in the treatment of babies born prematurely to whittle away at existing legal rights to abortion.

On the other hand, the philosopher Michael Tooley has argued that newborn infants are not yet fully human, or at least cannot be the subjects of rights (Abortion and infanticide 1983) so that neither infanticide nor abortion amounts to murder. This understanding is closer to historical practice. A similar view may have been reflected in jurors’ gut instincts which made it hard to obtain murder convictions in infanticide cases in England in the early part of the 20th century, leading to the passage of the 1922 Infanticide Act, which gave a defence to women who killed infants while “the balance of their mind was disturbed”.

But the terms of the argument are themselves suspect.

Killing and taking life

The plausibility of modern religious claims that the rule against taking life implies that abortion is wrong is greatly reduced by the ambiguity and complexity of religious rules about killing in other contexts. A very clear example is the history of religious support for war. The Bible contains both prohibitions on killing and glorification of the Israelites’ military endeavours, and christianity produced crusades against infidels and heretics. The Koran contains both prohibitions on killing and calls to jihad against infidels, carried on by muslims in their conquests down to the 16th century. In recent times, the Russian orthodox, Polish catholic and Ukrainian uniate churches have promoted pogroms against Jews, the catholic church had what can at best be described as an ambiguous relationship to the German Nazi regime, zen buddhism was a significant element in the ideology of Japanese militarist aggression in the 1930s and 1940s, and jihadi islamist groups have carried on terrorism against islamic as well as non-islamic civilians. How can killing be so absolutely condemned when it takes the form of abortion, yet so much potentially justifiable when it takes the form of war?

An additional problem is that there are a great many decisions routinely made which we now know, if they do not amount to direct decisions to kill, do amount to decisions that some people must die. “Thou shalt not kill; but need’st not strive/ Officiously to keep alive,” wrote AH Clough (1819-62) in his satirical poem ‘The latest decalogue’. When the IMF decides that there “must” be a ‘structural adjustment programme’ in country A which, it is known, will lead to x people starving and to a y probability of civil war, this is a little more than not ‘striving to keep alive’. When Railtrack decides on safety measures, the decision-making process explicitly involves the assumption that human lives can be costed. These decisions seem to many people to be objectionable. But what about decisions about the allocation of resources in hospitals, assuming a limited budget? Or the ‘triage’ of casualties in war or disaster, which decides who is to be treated on the basis of chances of survival?

The decision for or against infanticide or abortion in any individual case is the same sort of decision. It weighs potential human life against available resources. The refusal of anti-abortionists to recognise this, when their religions do recognise the complexity of decision-making about human life in other areas, indicates that something is going on other than pure religious reasoning.

Doctrine and practice

The early religious doctrine on abortion was genuine interpretation of the rule against killing in the revelation texts. But by the time we get to medieval christian and islamic doctrine on the subject, it was startlingly underdeveloped and black and white by comparison to the religious doctrine about killing in the context of war, self-defence, capital punishment and other overriding necessity (eg, isolation of plague victims). Why? One explanation is simple gender bias. Abortion decisions are ultimately made by women and their consequences are felt by women. Priests and islamic scholars, in contrast, were all or mostly men.

Behind this, however, was a larger fact. Pre-capitalist societies in the main have strong ‘separate spheres’ ideas. Pregnancy, childbirth and the earliest stages of child-rearing were ‘women’s work’, in a stronger sense than the sense in which these remain so today. The ulama and canonists were not merely confronted with the ethical dilemmas which actually confront women in relation to their fertility. They also had very little knowledge of what was actually going on. The possibility of these authorities actually detecting abortion or infanticide, let alone doing anything about it, was low. Religious doctrine was thus not confronted with a body of cases to complicate its relatively simple views on the issue. The doctrine could remain simple because it was both unenforceable and no serious attempt was made to enforce it.

Abortion doctrine is by no means unique in this respect. Medieval canon law and sharia both show vast masses of legal doctrine, produced by limited doctrinal reflection by scholars, which was in practice unenforced and unenforceable: on aspects of deviant sexuality, on the finer points of dietary regulations, on the boundaries of usury, and so on. The irrealism of much of this law did not matter as long as the scholars were merely exploring abstract possibilities.

From religious doctrine to political campaign

In the transition to capitalism all this changes. Capitalist development and the growth of the proletariat undermines the position of the petty proprietors and the traditional clerisy alike. It undermines the traditional gender hierarchy which allows the exploitation of family labour by petty proprietors, and which the clerisy express in ideology. For capitalists the growth of the proletariat also poses problems of ‘labour discipline’, which make capitalists episodic allies of the clerisy’s and petty proprietors’ struggle against the emancipatory effects of urbanisation and proletarianisation.

It is in this context that we begin to see the emergence of political campaigns against a series of figures who can represent the disorderly effects of capitalist modernity, without directly identifying capitalism as the source of these effects. The Jew, the homosexual, the ‘loose woman’, the alien immigrant, the abortionist: all these were targeted by the English Tory Party in its struggle against democracy, before the French and German artisans or the papacy had even begun to feel threatened by capitalism and change. In the 19th century the poisonous elements of the ideas of the Party of Order appeared in continental Europe, responding to capitalist development there, and found a powerful agency in the papacy. It is at this moment that selected elements of religious law became mobilising agencies for the Party of Order. The selective character of the use of religious law makes it plain that this is politics, not religious conscience. Over the course of the 20th century the phenomenon has spread beyond the boundaries of Europe and the US, and we have seen the emergence of islamic, Confucian, hindu, Stalinist and other nationalist forms of the Party of Order.

At the same time, the technical development set free by capitalist development enables the development of much stronger and more intrusive states. The doctors and other ‘scientists’ become a new clerisy with more powerful instruments at their command to detect abortion and infanticide. Abortion laws can become more rigorous and be more vigorously enforced. But at the same time market development means that the technologies of abortion and contraception reappear as illegal markets. As with many of the Party of Order’s other moral campaigns - contraception, drugs, homosexuality - the contradictions thrown up undermine the legitimacy of the law in general.

The episodic prosecutions appeared arbitrary; the widespread availability of illegal abortion meant that the laws were seen merely as condemning women to the risks of illegality. It is this dynamic which produced abortion legalisation in England, the US and elsewhere. After this clear failure of abortion prohibition schemes, the revival of anti-abortionism (started in the Nixon election campaigns in the US in 1968 and 1972) is even more clearly a political campaign of the Party of Order.

A woman's right to choose

At this point we can return to liberty of conscience. It should be clear that the only approach to abortion consistent with the idea of liberty of conscience is a woman’s right to choose. The idea that abortion is equivalent to murder is indefensible: it is a much more complex problem. It is women who bear the risks of pregnancy and childbirth and who, at present, still bear the major burden of child-rearing. Illegalising abortion is - precisely - a denial of women’s right to liberty of conscience.