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  • Writer's pictureTejas Deshpande

When and why should abortion be permitted? A Constitutional and socio-legal perspective.

In what circumstances should abortion be permitted and why?


I shall argue abortions should always be permitted excluding instances of discriminatory abortion and medical concern. My argument is constructed on three independent legs; women should have the right to control their bodies, that babies born against a parents interest are not likely to be raised in ways they deserve and because any attempt to restrict or ban abortions will lead to its black marketing, creating a vicious cycle. We must respect the right to liberty and dignity of every woman (and citizen, broadly) as protected under most constitutional rights and the European Convention of Human Rights. To burden a woman with an unwanted child in light of modern advancements in medicine would be a severe violation of these rights, destructive to the founding morals of our society.


First, woman should have the right control their bodies. Since pregnancies arise in women, only women (the individual, not a group) must be entitled to decisions regarding the pregnancy. To have the state or men decide regarding the same would equate to the unjustified treatment of the individual woman as inferior if not inhuman. Though the male parent plays an active role in creating the child, they do not bear the burden of pregnancy, thereby depriving them of a right over abortion decisions. It is unfair that men would not have the equivalent luxury of abortion if the woman would not consent to it, but that is an inequality we must accept, attributing it to the biological differences between the sexes. As such, only (individual) women must have this right to control.


Second, children born without parent interest or preference are not likely to get the nurturing they deserve. Such children are more likely to be given up for adoption, abandoned or in the most extreme cases, executed (like in parts of South Sudan). They increase the burden on the state without a substantiated benefit. Even if the biological parents raise these children, the parents are unlikely to invest emotionally in the child as a child as they would have a wanted and loved baby, depriving the child of his/her deserved upbringing, creating a cycle of ill-treated individuals. Further, raising children requires a huge financial investment which these children may not receive completely. If unwanted children were aborted, this burden vanishes. Adults can better use their economic and emotional resources, usually leading to the development of the country.


Last, abortions must always be permitted as the contrary leads to black marketing, which induces a new series of worse problems. Simple economics dictates that an absolute government ban not only imposes enormous costs but is also theoretically bound to be imperfect. If abortions were restricted, the number of illegal abortions would sky-rocket. With these, the number of abortion related deaths and injuries would increase, further burdening the states (and individual). In addition, costs of abortions, like that of all black-marketed goods would soar, decreasing access to high-quality (here, just safe) abortions. Banning abortions in one country could cause citizens to travel abroad for abortions, unsurprisingly incurring high costs. This is not to say that the government must never employ absolute bans. Certain goods such as harmful addictive narcotics are worth of the costs of such policy due to their tremendous burden on all of society, but abortions simply are not.


Having argued that abortions should always be permitted, I shall argue that abortions must be mandated at times. If the birth of the child poses a threat of life to both the child and the mother, or the mother alone, abortion must be mandated as we must protect citizens' right to life. If the unborn child is diagnosed with an uncurbable, significantly painful and terminal disease, the child must be aborted to prevent its own suffering and the emotional and monetary burden to its family.

However, abortions should be restricted if they are discriminatory such as sex-selective abortions once prevalent in rural India or abortions against children with non-terminal disabilities which do not invalidate one's life (such as paralysis of limbs, colour-blindness etc.). It goes against the best interest of the state to allow discriminatory abortions not only because they violate our principles of equality but also because they deprive the world of all contributions that could have been made by a specific group of people, reducing diversity (in thought, gender, physical characters etc.). Abortions should also be restricted if the medical procedure poses a threat of injury of grave harm to the parent (as possible if a woman attempts to have too many abortions in a period of time).


A counter argument advocating a complete ban on abortion (like once in Ireland) suggests that abortions should be banned on a religious basis. I consider this fallacious and wrong as it rests on circular logic and undermines the legal rights of women to liberty and dignity. Those arguing for the right to life of the unborn child put forward their argument at the costs of the rights of the parent. I argue that the child is not in a position to realise any of its rights until birth, leading us to prioritise the rights of the parent.


In conclusion, I reaffirm the general need to access to abortions excluding specific medical exceptions and cases of discrimination. To go against these arguments would be to demean our founding principles, to dehumanise women. Though the absolute pro-life argument is not completely void of meaning, a cost-benefit analysis (as shown above) renders it infeasible.

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