Controversy Over the Alleged Abortion Views of Amy Coney Barrett Misses Wider Issues

The nomination to the United States Supreme Court of Amy Coney Barrett has raised again the issue of access to abortion, legalised in the United States in the decision in Roe v Wade 410 US 113 (1973) 47 years ago. If Ms Barrett is confirmed as a member of the Supreme Court it will make the conservative majority of the court 6:3. It is difficult to see why her appointment would make a difference to the United States abortion laws. The conservative capacity to make such changes already existed.

What her prospective appointment has done, however, is to raise the issue of  women’s access to abortion as a live political issue. Despite the undoubted significance of the Roe v Wade decision, the issue of abortion and a woman’s rights thereto has been far from settled.

The legal right to have an abortion is only part of the equation and other issues have equal importance. Unless all of those issues are addressed and satisfactorily resolved, the right to have an abortion, per se, can be a nugatory one. There are a number of other issues that need to be addressed.

Those who support abortion law reform; i.e., the decriminalisation of the law forbidding abortion, are still waging battles around the world. Roe v Wade was a milestone in the United States, but the legal right to an abortion had existed elsewhere for many years. Sweden, for example, has had legislation regulating the legal termination of pregnancy since 19391

Other developed countries by contrast followed years or even decades behind Roe v Wade. In the major Australian States of Queensland, New South Wales and Victoria, for example, abortion was only legalised in 2018, 2019 and 2006 respectively.

The legal availability of abortion did not, of course, mean that it first became available at that time. Women anxious to terminate the pregnancy had long sought and found the means to do so for a long time before the act was decriminalised. What the restrictive law did do, however, was either force women to have an unwanted pregnancy or risk an action that was not only criminal, but also carried significant health risks, being performed in unsafe conditions by inadequately qualified persons.

The decriminalisation of the procedure was not the end of the matter, as the United States experience vividly illustrates. The availability of the procedure varies widely from State to State where the removal of criminalisation was only one step in the process.

What the United States experience vividly illustrates is that decriminalisation is a necessary but not a sufficient condition in removing obstacles to the termination of an unwanted pregnancy. To be effective, the law must also provide both the means and the resources for the procedure to be actually carried out.

A reduction in the number of unwanted pregnancies, and hence the demand for abortion access could most effectively be approached by reducing the incidence of unwanted pregnancies in the first place. This is clearly achieved by women having access to safe and reliable contraception. Here one runs into one of the great paradoxes of the anti-abortion supporters. They are also overwhelmingly the holders of conservative views on both knowledge about and access to reliable contraception, particularly by unmarried persons.

It should be self-evident that the most effective means of reducing the number of abortions would be to reduce the number of unwanted pregnancies. The most efficient and effective way to reduce unwanted pregnancies is to prevent the conception occurring in the first place.

“Keeping your legs crossed” or “just say no” has never been realistic advice. Yet it is still advocated by conservative sections of the community as an effective antidote to an unwanted pregnancy. It is also inherently illogical to punish those unable or unwilling to accept such unrealistic advice by forcing them to continue with an unwanted pregnancy.

Having a child is not simply a consequence of a night’s carelessness, forgetfulness or ignorance. It is in effect a life time consequence. For many decades the result of the unwanted pregnancy could be removed by having a child adopted at birth. While such programs had their altruistic element, providing a supply of babies to couples unable to have children of their own, there were also huge social and psychological costs for the women obliged to give up their child in this way.

Changes in social attitudes to “unmarried mothers” together with the provision of financial support, radically changed the instance of adoptions. In New Zealand, for example, the legislative changes in the late 1960s had precisely that effect. The word “illegitimate” was legally abolished, social attitudes changed and raising a child as a single mother was no longer financially impossible.

The significant reduction in the social stigma of having a baby whilst not married, and the easing of the financial pressures have not been enough. There are still far too many unwanted pregnancies as the demand for abortion services amply illustrates.

Whilst it is not a complete answer, the solution for those opposed to abortion on moral, ethical or religious grounds, is to prevent as far as possible the occurrence of the unwanted pregnancy. History amply demonstrates that will not be achieved by moral exhortations or legislative discrimination.

The only realistic policy option is to reduce the incidence of unwanted pregnancy as far as possible. It will never be eliminated, and there will always be medical reasons for a termination. For those truly wanting a radical reduction in the incidence of abortion, however, the present policies are clearly inadequate. Restricting access to abortion as history amply demonstrates is a manifestly worse policy option. It is these broader policy options that legislators should be addressing rather than focusing on the views of a prospective Justice of the Supreme Court.

  1. Journal of Biosocial Science Vol 3 (2) April 1971 pp173-192. []
James O'Neill is a retired Barrister at Law and geopolitical analyst. He can be contacted at joneill@qldbar.asn.au. Read other articles by James.