“My body – my choice” and the fate of Norma McCorvey

In the shadow of the debate on the legal regulation of abortion

1. Current

"#MonCorpsMonChoix" was emblazoned in neon letters on the Eiffel Tower on 8 March 2024 after both French chambers of parliament voted overwhelmingly in favour of including the right to voluntary abortion in the constitution. The proposal came from President Macron in response to the U.S. Supreme Court's ruling in 2022, which overturned the national right to abortion in the USA, which had existed for almost 50 years. Shortly before the French decision, another event on the other side of the Atlantic caused an international stir. In its decision of 16 February 2024, the Supreme Court of the state of Alabama granted artificially created (IVF), cryopreserved embryos the status of children. The parents concerned had sued because their frozen embryos had been destroyed in an attempt to remove them from the reproductive clinic. In their judgement, the judges referred to a law from 1872 (Wrongful Death of a Minor Act), which grants the parents of a minor child who died as a result of unlawful or negligent acts the right to sue for damages.

Abortion is also being discussed in Switzerland and Germany in a less headline-grabbing way. This has been prompted by the recommendations of human rights organisations - namely the WHO, the UN Human Rights Committee, the UN Commission on Human Rights and the CEDAW Committee - for the complete decriminalisation of abortion and the removal of all obstacles or discrimination to safe access. With this in mind, the parliamentary initiative "Abortion should be seen first and foremost as a health issue and not as a criminal matter" (22.432 of 02.06.2022) demands: "For a complete decriminalisation of abortion, all provisions on abortion must be removed from criminal law." In February 2023, the National Council's Legal Affairs Committee came to the conclusion that there was no need for action, partly because it was not aware of any cases of criminal prosecution in connection with abortion in the last 20 years. By contrast, in August 2023, the Federal Council requested the adoption of the two identical postulates "Evaluation of the regulation on abortion" (23.3762 and 23.3805 of 15 June 2023). The aim is to review the practicability of the existing criminal law regulation, its implementation in terms of best practices and deficits in the cantons, its compatibility with human rights and professional standards and in comparison with legislation in other European countries. In contrast, the two critical referendum proposals "For a day's reflection before every abortion (Once-over-sleep initiative)" and "For the protection of babies viable outside the womb (Save viable babies initiative)" failed at the collection stage in summer 2023.

In Germany, the "Commission on Reproductive Self-Determination and Reproductive Medicine", consisting of two working groups, was set up in spring 2023 on the initiative of the federal government. One working group is to develop strategies for the non-criminal regulation of abortion, while the other is to examine options for the legalisation of egg donation and altruistic surrogacy.

2. The conflict between autonomy and the protection of life in law

At least from an external perspective, the time limit regulation in force since 2002 has proved its worth in practice. It is therefore all the more remarkable that the debates on abortion have not calmed down. Conversely, the largely uncontroversial practice belies some ambiguities and inconsistencies. The current discussions revolve on the one hand around the health policy demand for the decriminalisation of abortion and on the other hand around the legal question of the beginning of general and sanctioned duties to protect human life. Just how unclear this point in time is can be seen from the time limit set by the legislator for a self-determined abortion. While the time window for pregnant women in Switzerland is 12 weeks from the start of the last period, it is 14 weeks in Germany, 16 weeks in Austria, 18 weeks in Sweden and 24 weeks in the Netherlands.

2.1 The new era since Roe v. Wade

The Dutch regulation corresponds to the fundamental decision of the U.S. Supreme Court Roe v. Wade of 24 January 1973. The judgement, which caused a worldwide sensation, although it is often overlooked that the former GDR had already introduced the regulation of time limits up to the 12th week of pregnancy a year earlier, is remarkable because it still dominates the abortion debate today. Jane Roe, a 23-year-old unmarried pregnant woman, had filed a lawsuit against the State of Texas, represented by Dallas County District Attorney Henry Menasco Wade, because the Texas Legislature denied her an abortion. Roe, who had already given birth to two children and given them up for adoption due to her precarious personal and social situation, had become pregnant again as a result of rape (she did not keep this child after it was born either). The state of Texas defended its restrictive abortion ban on the grounds of (1) the state's interest in protecting the health of the person and prenatal life and ensuring medical standards; (2) the fetus' personhood status, which is protected by the 14th Amendment; and (3) the compelling interest (compelling interest) of the state to protect prenatal life from the moment of conception. The plaintiffs argued (1) that the Texas law violated an individual's right to liberty under the 14th Amendment and the rights to marital, familial, and sexual privacy guaranteed in the Bill of Rights, and (2) that every woman has an absolute right to terminate her pregnancy at any time, for any reason, and in any manner. The U.S. Supreme Court followed the plaintiffs' argument in a differentiated manner and stated: (1.) The U.S. Constitution guarantees a fundamental right to privacy, which includes the pregnant woman's right to decide for herself whether to terminate her pregnancy. (2.) This right is not absolute and does not prevent states from legally regulating abortion. In doing so, the compelling interests of the state in protecting the health of the woman and the potentiality of human life must be weighed against the highly personal rights of the pregnant woman.

The Court's majority opinion, authored by Justice Harry A. Blackmun, raised two fundamental questions from the outset that continue to dominate abortion debates today: (1) Does the fundamental constitutional right to privacy include a woman's right to make decisions about her pregnancy? And (2.) What duties to protect unborn life that are in the compelling interest of the state can be legally justified and demanded against the background that "the unborn have never been recognised in law as persons in the proper sense"? An answer to the second question has a direct impact on the answer to the first question because it establishes a compelling public interest that justifies interfering in the privacy of the pregnant woman. Conversely, the legal effect of restricting a pregnant woman's fundamental right is the high hurdle that must be overcome to establish a public interest. The far-sighted judicial reasoning takes on particular significance through a double contextualisation: (1.) the consideration of the health and socio-economic risks and consequences of pregnancy for the woman (physical and mental health, financial burdens, social stigmatisation). Before the judgement, between 200,000 and 1.2 million illegal abortions were carried out in the USA every year, resulting in the deaths of 5,000 to 10,000 women and causing countless women psychological and physical harm. While the number of abortions remained roughly the same after the change in the law, the number of women who died or were physically impaired as a result of the procedure fell considerably. (2.) The central question of the beginning of human life, from which the nasciturus' eligibility for protection is derived, cannot be conclusively answered and defined by state law. "We do not believe that Texas can override the rights of the pregnant woman at stake by adopting a particular theory of life."

2.2 A medical caesura

Instead of a legally binding definition of a specific culturally, religiously and ideologically characterised concept of life, the court determines a differentiated framework for weighing up the interests of the state and the right to privacy of the individual. In doing so, it deliberately follows the biological-medical division of prenatal life into three stages of development: (1.) During the first trimester (3rd-12th week of pregnancy), the state may only regulate abortion to the extent that it is carried out by authorised doctors under medically defined conditions. (2.) During the second trimester (13-24 weeks' gestation), the state may regulate abortion if the regulations issued are proportionate to the health of the pregnant woman. (3.) In the third trimester (from the 25th week of pregnancy), the state's interest in protecting unborn life prevails, so that it may prohibit abortions unless the life and health of the pregnant woman are at stake. The decisive factor is which question the U.S. Supreme Court answers. It says not a word about what follows or should follow from a moral or religious perspective for the recognition and protection of unborn life. That is a question the pregnant woman can and must answer for herself. The court has also not simply legalised abortion, but has determined when, how and to what extent the state may interfere with the constitutionally guaranteed fundamental rights of the pregnant woman.

Protection rights of unborn life, which may conflict with or restrict the personal rights and legitimate interests of pregnant women, are confronted with two fundamental problems: (1.) All boundaries or caesuras discussed in law (fertilisation, nidation, heart-beatingThe terms "birth", "beginning of brain life", "extrauterine viability" and "birth" are based on arbitrary normative judgements that have no correspondence in the continuum of the biological-physiological development of prenatal human life. There is no biologically ascertainable point in time from which it is possible to draw conclusions about a state of the nasciturus that is disinterested beforehand and guided by interests afterwards. No moral or legal requirements can be derived from biological stages of development alone; rather, biological states must be categorised as normatively relevant in order to make them morally and legally meaningful. (2.) Because unborn life is not a "person" in the ethical and legal sense, either the interests of unborn life must be inferred from living persons (SKIP arguments: species, continuum, identity, potentiality argument) or a moral status must be assumed which exists independently of personal existence and does not equate prenatal protection rights with an absolute right to life from birth.

The highest American court avoided such philosophical and moral considerations and based its judgement on a medical criterion: an interim point between conception and birth represents the viability of the foetus outside the mother's womb. The extrauterine viability of the foetus depends on the possibilities of perinatal intensive care. Survival outside the womb is now medically realistic from 24 weeks' gestation. From this point on, the U.S. Supreme Court leaves it up to the individual states to "place the interests of the nasciturus [...] on the same level as those of the pregnant woman". Similarly, Article 82a of the Dutch Criminal Code equates the abortion of a foetus that is presumed to be viable with the killing of a born person. And the British Infant Life (Preservation) Act 1929 (ILPA) specifically criminalises the abortion of a foetus that would be capable of surviving outside the womb (an existence independent of its mother) (child destruction).

2.3 Abortion between law and politics

The spectacular ruling by the U.S. Supreme Court on 24 June 2022 (Dobbs v. Jackson Women’s Health Organization), which repealed the constitutional right to abortion and made US abortion law the law of the land. status quo The return of the right to privacy 50 years ago is only the temporary end of a series of tightening of the law that began soon after the 1973 decision. At its core, the criticism is directed against the right to privacy derived from the 14th Amendment, which protected citizens from the paranoid control mania of their state. The US Supreme Court's judgement in 2022 once again puts this protection of privacy at risk. In their dissenting opinion, the three judges who voted against the decision explicitly warn against the loss of other liberal achievements, such as the right to access contraception, same-sex relationships, same-sex marriage and even the right to marry between two people of different ethnicities. Because none of these rights are mentioned in the Constitution, but are based solely on the 14th Amendment's interpretation of privacy, which was made mandatory by Roe v. Wade. Conversely, the conservative member of the U.S. Supreme Court, Clarence Thomas, is already thinking out loud about abolishing the aforementioned rights and the right to privacy established in 1973. The abortion judgement is symptomatic of the conservative moral strategy of curtailing the liberties of the individual, the fundamental right to bodily integrity and self-determined sexuality.

From a historical perspective, the landmark Roe v. Wade decision had extremely far-reaching consequences that extend into political culture. Following the decision, the "march for life" was founded, with opponents of abortion marching on the National Mall to the Capitol every year on the day of the judgement. The two camps of "pro-choice" and "pro-life" activists soon crystallised, and today they are divided almost sharply between the two political parties in the USA. A decisive political hurdle for appointment as a judge to the U.S. Supreme Court is the stance on abortion. Such a legally framed friend-or-foe scheme (adversarial legalism) is considered typical for the USA, but has long since crossed the Atlantic and is also influencing the democratic culture of debate here. "The case of abortion law shows the dynamic that arises when controversial issues are transferred from the political arena to the legal system. On the one hand, this favours social division with regard to the topic, because legal judgements are often only perceived as fundamentally 'right/wrong' or 'right/wrong'. In the case of abortion law, for example, this came to a head with the question of whether women's right to 'privacy', i.e. their self-determination, takes precedence over that of unborn life, which led to the formation of 'pro-choice' and 'pro-life' camps. On the other hand, the issue is depoliticised through legalisation. In this context, depoliticised means that it is no longer dealt with in parliamentary arenas with their pressure to compromise, but remains within a static legal framework and is only developed further within the framework of the legal system. [...] The escalating battle over abortion rights coincided with a social divide and the rise of right-wing populist movements in which anti-feminism is part of the political concept. It is therefore no coincidence that parallel developments in abortion rights (as well as in other equality issues) can be observed in PiS-ruled Poland and Bolsonaro's Brazil. In Poland, too, a favourable court was used to enforce the abortion ban. Not least here, it is clear that anachronistic minority interests are being enforced by legal means, which are no longer capable of winning a majority even in conservative states and run completely counter to contemporary developments. This is demonstrated by the success of initiatives and referendums in previously ultra-conservative countries such as Ireland, Chile and Colombia, where the decriminalisation of abortion was fought for."

3. The ethical debate on self-determination and the protection of life

Ethical debates aim to clarify complex options for action and decision-making situations from a factual and normative perspective on the one hand, and to reassure society of its normative self-understanding on the other. With regard to the second concern, a distinction can be made between a substitution, symbolic and testing function. Fundamental questions about life and death form normative islands that are removed from system-rational decision-making routines, to which politics is also subject, and constitute discourses of their own kind. They are symbolic in two ways: on the one hand, they allow positions to be taken without consequences, and on the other, they can be used to thematise ultimate contexts and interpretations of meaning. Finally, bioethical topics, which affect very few of the panellists themselves, allow for committed participation "without the individual being directly forced to draw their own conclusions. Questions about the whole or about the meaning of life (together) can be posed decisively and answered just as decisively on the basis of bioethical disputes [...]." The motives also explain why churches were intensively involved in the debates on abortion.

In Germany, two statements by the EKD and the Deutsche Diakonie on the question of a new regulation and decriminalisation of abortion (regulation outside the penal code) have led to a controversial theological discussion, which on the one hand takes up the constellations of the legal discussion just outlined, and on the other hand illustrates the challenges of church-theological contributions to the topic. To put it bluntly, decidedly theological positions have the problem of either - unintentionally or not - being categorised as belonging to the Trump, Bolzonaro or Kaczyński camp, or no longer being able to be identified as theological contributions. The dilemma is complex and will only be outlined here using the key distinction "self-determination versus protection of life" as an example. In the law and also in the standard ethical narrative, the pregnancy or pregnancy is a time when the child is still in the womb. In the development of prenatal life, there is a reversal of priorities. The de facto priority of the woman's self-determination over the protection of unborn life in the time window of the time limit regulation is then reversed and can only be restricted by the acute danger to life and limb of the pregnant woman (medical indication). In order not to dispute the fundamental rights status of both standards, the prioritisation is necessarily of a pragmatic nature. In principle, the conflict can either (1.) not be resolved at all or (2.) through a hierarchy of norms, in which one of the two conflicting fundamental rights is categorically prioritised over the other (with or without termination), or/and (3.) through readdressing, in which one player is removed from the game and replaced by another. The Variant 1 only allows for controversial legal solutions (problem of practical concordance) and can strictly speaking only be modelled as a personal conflict of conscience. The 2nd variant would have to question the fundamental character of one of the two rights and strive for a questionably antagonistic revision of the law (pro life vs. pro choice) (many ecclesiastical-theological controversies are at an impasse). The 3rd variant addresses fundamental rights differently. The EKD and Deutsche Diakonie want to defuse the personal pregnancy conflict by protecting the right to self-determination and physical integrity of the unintentionally pregnant woman and (to a certain extent) removing the duty to protect unborn life from her shoulders in order to transfer it more strongly to society.

But are these viable conflict solutions? A more precise perception of the problem is made possible by a thought experiment based on the 1973 judgement of the U.S. Supreme Court, which turns the usual debates on their head: Instead of freedom of choice at the beginning of pregnancy and a subsequent obligation to carry to term, the rule would be reversed: the unintentionally pregnant woman would be obliged to carry the nasciturus to term until the time of its extrauterine viability and would then be free to decide whether to continue or terminate her pregnancy. This approach would simultaneously achieve one goal and solve two problems: (1.) The protection of life would be highly efficient because no unborn life would be aborted. (2.) The fundamentally controversial construction of a staggered protection of life would become superfluous. And (3.) An obligation (existing from a certain point in time) to bear the child would no longer apply. It would "only" be necessary to justify the reasonableness for the pregnant woman to carry the nasciturus until the perinatal phase (from the 24th week of pregnancy). Why does this convincing consequentialist strategy fail?

A woman experiences her pregnancy not as a biological or medical process, but as a physical and emotional state that encompasses the whole person. This experience can go hand in hand with a special concern and an obligation - however justified - on the part of the woman towards herself and her body. But can a duty that interferes with a person's physical integrity also be demanded of third parties whose bodies are not affected? In fact, the pregnancy conflict is the only case in which a person has a possible duty to "irreversibly use their own body for the protection of another". The legislator enacts general legal obligations to protect unborn life and generally demands them from every pregnant woman as a kind of representative or advocate for every unborn life. By contrast, any form of instrumentalisation in which a woman would be forced to carry the child to term - as in the story of Sarah and Hagar (Gen 16) - in the interests of a third person is excluded. Instrumentalisation would also exist if the state were to claim a right of access to "this" specific nasciturus. This becomes clearer in the reverse case, in which the state would claim the right to prevent the birth of this child. This would be a case of negative eugenics, which corresponds to positive eugenics in the first case.

But what is behind the claim that the state acts as a proxy or advocate for unborn life? Who gives the legislator the mandate to represent their interests? And whose voice does it raise on behalf of? There are no simple answers to these questions. In principle, the legal consequence of splitting off an aspect of the physical and emotional coexistence of pregnant women and unborn life (in principle or from a certain point in time) as an object of general interest is a familiar but nevertheless highly disconcerting idea. On an ethical level, the figure of acting as an advocate in the well-understood interest or self-interest of another person is familiar in many bioethical contexts. However, such a proxy is always based on a personal relationship in which the question can reasonably be asked as to whether my decision, which I make on behalf of a person in a specific situation, would correspond to the decision that this person would have made if they were able to decide here and now. In contrast, nobody refers to their own prenatal existence when it comes to deciding in the interests of a nasciturus. There are only two reasons for assuming that the protection of the unborn life is also in its interest: (1.) because the hopeful expectation of the pregnant woman and the parents-to-be is inseparable from the certainty of the same hopeful expectation in the unborn child (the intrinsic emotional unity can also apply the other way round); (2. ) because the protected unborn life after its birth has the freedom to complain about the interests falsely imputed to it, whereas the unprotected unborn life that is not born is denied this freedom. The non-identity objection, according to which there can be no duties towards future persons on whose fulfilment the existence of the person depends, would only apply if it were a matter of general duties and not, as it were, spontaneous claims that impose themselves with and before this specific future person. What cannot be resolved in such decision-making situations, however, is the fundamental risk of the "friendly monkey who places a fish safely on a tree to save it from drowning". However, mothers, fathers and parents cannot get rid of this risk for the rest of their lives, and neither can the children.

4. Beyond law and ethics

The debates on the legal regulation of abortion are complicated by a categorical error. It consists of a lack of differentiation between the right to life and the protection of life. "It is by no means enough to show that the foetus is a person and to remind us that all persons have a right to life - it is also necessary to show that killing the foetus violates its right to life, i.e. that abortion is an unjust killing". Offences against the right to life are prosecuted and sanctioned under criminal law. In contrast, the punishability of the protection of life depends on what use of one's own life and what intervention in one's own life can be legally expected in order to protect another life.

The discomfort with this description of the conflict lies in an objectifying language that is not and cannot be the woman's way of speaking in a pregnancy conflict. The legal and ethical categories of "one" and "other" life correspond to nothing in the life and physical experience of the pregnant woman. It is also strange to imagine that an unintentionally pregnant woman would consider and reflect on her dilemma against the background of two conflicting fundamental rights. The legal and ethical terms are given a figurative meaning, for example in the description of the "dependence of the foetus on the mother" from which she derives "a special kind of responsibility for it, a responsibility that assigns it rights towards her that are not possessed by any independent person". The lack of imagination in the language should not obscure the fact that the singular coexistence between pregnant woman and unborn life is not about ethical responsibility or justiciable legal claims, but about a genuine, pre-social relationship of recognition, to which the old description of pregnancy as a state of "good hope" alludes, and which can neither be legally recognised nor ethically demanded. "It is not the subject that sets itself the task, but the task that constitutes the subject." The inflationary references to the protection of life should therefore be critically scrutinised. In the context of the physical and emotional coexistence of pregnant women and unborn life, he suggests that an external authority must protect one part of the woman from her other part. It would also be worth considering whether this mistrust is really about protecting life or rather the age-old patriarchal fantasy that what exists in and with the woman should/must not actually belong to her. The lifelong mother-child relationship has its foundation in the groundless commitment of loving care to the child. To doubt this would be sheer madness. The conception, prenatal development and birth of a child are not miracles, but biology. Rather, the miracle occurs in the mysterious transformation that corresponds to the linguistic transition from the "pregnant woman" to the "mother" and the "unborn life" to her "child".

Love is neither part of the legal nor the political vocabulary. While the law therefore expressly withdraws, politics and (Christian) morality pull out all the stops. Significantly, both sides become much more silent when the topic switches from the protection of unborn life to the protection of born life. It is true that born life only benefits from protective rights if it was already effectively protected in its unborn state. But the reverse is true for politics and morality: The value of protecting unborn life is measured by how that life is actually protected throughout its life after birth. The idea that birth is not a turning point for human worthiness of protection characterised the grandiose decision of the U.S. Supreme Court in 1973. At the same time, it symbolises a legally unsolvable problem.

Jane Roe never existed. The name is an invention, the equivalent of "John Doe", which in Anglo-Saxon court proceedings is usually used to describe a fictitious or unidentifiable litigant. The person who became pregnant for the third time at the age of 23 and did not keep any of the children to raise them herself was called Norma McCorvey. She grew up in difficult circumstances, had dropped out of school, was a drug addict and destitute at the time of her pregnancies and had invented the rape by a group of black men during her third pregnancy because of the restrictive abortion laws in the state of Texas. She was not the plaintiff of choice that attorneys Linda Coffee and Sarah Weddington were looking for to help them litigate against Texas abortion law, nor did she want to go to court against the Dallas District Attorney. This is how the young woman from a difficult background became the world-famous Jane Roe, whose lawyers achieved a success after three years of litigation that they would never have dreamed of. Justice Blackmun, whom President Nixon had appointed to the U.S. Supreme Court because of his conservative views and who increasingly mutated into a liberal during his time on the Supreme Court, contributed significantly to this. Conversions also characterised the further life of Norma McCorvey, who not only changed her denomination several times, but also her fundamental views. Under the influence of clergymen and in return for lavish payments, McCorvey became an avowed anti-abortion activist for the anti-abortion organisation "Operation Rescue" and fought unsuccessfully in 2004/2005 for the U.S. Supreme Court to overturn the Roe v. Wade ruling.

Abortion became Norma McCorvey's life theme. She presented the public with the image of a woman with strong attitudes and equally strong denials. Rose's convictions clashed unchecked with McCorvey's notorious inner turmoil. Her biography reads like a personification of the abortion debates we are still having today. The life story of Norma Jane perhaps says more about our approach to abortion than we realise or would like.

Original text with sources and footnotes:

Picture of Frank Mathwig

Frank Mathwig

Prof. Dr. theol.
Beauftragter für Theologie und Ethik

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