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The criminalisation of abortion is contrary to a Bill of Rights that is undergirded by natural right

The issue of abortion has been a contentious one for decades, with advocates on both sides fiercely defending their positions. In recent years, the criminalisation of abortion has become a particularly hotly debated topic, with some arguing that it is contrary to the Bill of Rights and natural rights.


The Bill of Rights, which is a cornerstone of American democracy, guarantees certain fundamental rights to citizens. These include the right to freedom of speech, religion, and assembly, as well as the right to due process of law and protection against unreasonable searches and seizures. Proponents of the criminalisation of abortion argue that it is consistent with the Bill of Rights because it protects the right to life of the unborn child.


However, opponents of criminalisation argue that it is actually contrary to the Bill of Rights, particularly the right to privacy. The Supreme Court, in the landmark case of Roe v. Wade, held that a woman has a constitutional right to choose to have an abortion. This right is grounded in the right to privacy, which is not explicitly stated in the Bill of Rights but has been recognised by the Supreme Court as a fundamental right.


Furthermore, opponents of criminalisation argue that it is contrary to natural rights, which are rights that are inherent in human beings by virtue of their nature. The most fundamental of these rights is the right to life, which is often cited by proponents of criminalisation. However, opponents argue that the right to life must be balanced against other natural rights, such as the right to bodily autonomy and the right to privacy. Criminalising abortion, they argue, violates these natural rights.


Moreover, opponents of criminalisation argue that it is also contrary to the principle of limited government. The government has no business dictating personal decisions made by individuals, including decisions related to reproductive health. The government's role should be to protect individual rights, not to infringe upon them.


Allow me now to do a deeper dive of this issue in Jamaica. Abortion has long since been seen as one of the most prevalent “crimes” or social issues of not just the modern but also ancient society across the world. In a report published by the Ministry of Health of Jamaica, the data from the Family Planning Board’s Reproductive Health Survey showed that in 1973 and 1977 of the 43% of pregnancy that was mistimed, 18% was unwanted. In Jamaica, abortion is illegal under the Offences of the Persons Act 1861. The criminalisation of abortion in Jamaica, in my view, has not provided a framework in which there will be a reduction but rather an environment where women or young girls will seek to find other means with which to get this done without suffering the ills of being ostracised by their related social circles. This paper will seek to review in a somewhat summarised version the issues related to the popular but sensitive topic of abortion and how the criminalisation of it is contrary to a Bill of Rights that is a firm basis for natural rights.


A View on Abortion

After fertilisation happens in a woman, a baby’s genetic make-up is complete. Within three weeks of this, an embryo is formed at which point, the baby’s first nerve cells have also formed. Within the first eight weeks, the baby goes through a series of changes to include forming of facial features, the start of the forming of limbs, and the detection of a heartbeat. At the eighth week, the fetus is an embryo and is about an inch long. The baby is fully formed by the end of the third month. There are a variety of views from the medical fraternity as to whether or not the embryo is considered a life with the sound of the first heartbeat or at the development of the brain. In this regard however, an embryo at eight weeks would not be able to have its life be sustained outside of the womb independent of its mother. Medically, this can only happen at a minimum twenty-four weeks and beyond. With this context in mind then, a “safe” voluntary termination of pregnancy can happen up to eight weeks and would definitely be too late beyond twenty-four weeks.


I outlined the stages of foetal development to set the context as to the risks and dangers that can exist at different stages of a pregnancy. Outside of situations prescribed by a doctor, for example pregnancy causing life-threatening circumstances for either the unborn child or the mother, research has shown that abortion is more prevalent in the socially challenged or rather the poorer class of women in the society. In a further review of the Jamaica Parliament Policy Review Advisory Group Report, it outlines that in a period of six months in 2005, the Victoria Jubilee Hospital in Jamaica admitted to Ward 5 (which deals exclusively with abortions and their complications) 641 patients. Further it revealed that of that number of persons admitted, 75% were unemployed and 27% were engaged in low paying employment and all had inner city addresses. A shocking 86% of the patients had dilation and curettage (D&C) in hospital for the treatment of incomplete abortions (done illegally). The data also showed that between October 1 and December 31, 2005, 54 patients were admitted into the Cornwall Regional Hospital in Jamaica with a diagnosis of “incomplete abortion”, and 3 of the 54 were under 17 years old. The same report also outlined that none of the patients numbered in the report were capable of paying the hospital bill that was issued.


The Law and Abortion

The Offences of the Persons section 72 outlines that for the administering of drugs using instruments to procure abortion shall be liable to be imprisoned for life, with or without hard labour. It further states the supply or procuring of drugs etc. to procure abortion shall be liable to be imprisoned for a term exceeding three years, with or without hard labour. On the other hand, The Charter of Fundamental Rights 2011 outlines that all persons in Jamaica has fundamental rights and freedom and that they are entitled to preserve for themselves this fundamental rights and freedoms that they are entitled by virtue of their inherent dignity as persons and as citizens of a free and democratic society. The Jamaica Parliamentary Abortion Policy Report puts into focus that the laws of the Commonwealth Caribbean were made over 200 years ago and outlined when a ‘termination’ could be done. These laws for the most part, and in the case of Jamaica, have remained unchanged. In the islands where abortion was decriminalised and statutes liberalised, the number of admissions for persons with complications from abortion declined by 53% in Barbados and 41% in Guyana.


Brian Bix in his book Jurisprudence, Theory and Context, in speaking about the topic of abortion questions if the foetuses have rights, a right to life or do women have a moral or legal right to chose abortion, because their right to control their bodies overrides any rights that the foetuses may have. He further posits two views that could be argued, that a foetus is not an entity that has rights versus the consideration that abortion should not be allowed because it is contrary to the moral and legal rights that the mother has towards their unborn child. However at what stage does the law take into consideration the woman’s view and their particular situation. Ronald Dworkin in his book Theory of Rights questions what do moral rights accomplish in terms of reasons for actions?


In the Jamaica Parliament Abortion Policy Review, it outlines that in a World Health Organisation Report, it states that over 210 million women globally become pregnant each year despite the availability of contraceptives. It further states that about 20% of that figure resort to abortion in women aged between 15 and 44 years. Of this, 41% are done illegally and in an unsafe manner.


In the well-known case of R v Bourne [1938], we see where a young girl aged 14 years was raped by five soldiers and became pregnant. Subsequently, an abortion was done as both her parents and the doctor viewed that to carry out the pregnancy would cause the young girl to suffer from mental challenges. The doctor carrying out the abortion, though he had reported the situation the Medical Commission, was charged with conducting an abortion and later had his charge sheet changed to “unlawful abortion”. In this scenario, we see where the circumstances of the woman were taken into consideration.


Though I have not outlined the many reasons for abortion, it can be concluded that the criminalisation of abortion worsens the situation and increases underground activity and also the health risks for the mother where it would have been minimised or lessened had it been done in a legal facility. Moreover, should abortion be decriminalised, I believe that the stigma and the black cloud covering the procedure would be reduced, as there would be more of a respect and appreciation of the rights of the mother in making such a decision.


While the criminalisation of abortion may be viewed by some as consistent with the Bill of Rights and natural rights, opponents argue that it is actually contrary to these principles. They argue that it violates the right to privacy, the principle of limited government, and other natural rights, such as the right to bodily autonomy. As such, the debate over the criminalisation of abortion is likely to continue for the foreseeable future, as both sides continue to argue their positions.


References


1. Jamaica Parliament Abortion Policy Review Advisory Group Report February 2019, accessed 19November2020 http://www.japarliament.gov.jm/attachments/375_AbortionPolicyReviewAdvisoryGroupFinalReport.pdf

Jamaica Parliament Abortion Policy Review Advisory Group Report pp5



4. Offences of the Persons Act s 72 and s 73


5. Charter of Fundamental Rights and Freedoms (Constitutional Amendment Act) 2011, chap. 3 s 13(1)(b)


6. Jamaica Parliament Abortion Policy Review Advisory Group Report pp18-19 http://www.japarliament.gov.jm/attachments/375_AbortionPolicyReviewAdvisoryGroupFinalReport.pdf , accessed 19November 2020


7. Brian Bix, Jurisprudence Theory and Context (6th edn, 2012) pp 137, para 2


8. Reeves A.R. (2017) Ronald Dworkin’s Theory of Rights. In: Sellers M., Kirste S. (eds) Encyclopedia of the Philosophy of Law and Social Philosophy, Springer, Dordrecht. https://doi.org/10.1007/978-94-007-6730-0_4-1


9. Jamaica Parliament Abortion Policy Review Advisory Group Report pp 13 http://www.japarliament.gov.jm/attachments/375_AbortionPolicyReviewAdvisoryGroupFinalReport.pdf , accessed 19November2020


10. R v Bourne [1983] 3 All ER 615


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