Abortion: The Legal Right Has Been Won, But Not the Moral Right

Abstract

In 1978 the abortion law was liberalised in Norway. It permits abortion on request up to 12 weeks of pregnancy, and after that with the agreement of a medical commission, taking the woman’s own views into consideration. In 2003, 96% of abortions took place before 12 weeks of pregnancy. There is considerable support among the population for the current law, and the right to abortion does not seem to be under threat, yet opponents of abortion attack the law frequently. Debates on recent biotechnology laws and difficulties introducing the abortion pill, on the spurious grounds that it would make abortion too easy, imply continuing moral qualms about abortion. While abortion among young, unmarried women is more accepted, many married women feel they have to justify their decision. Women are expected to feel sorrow, shame and guilt because of their sexual conduct for many reasons, but especially if the result is an unwanted pregnancy. It is easier to protect the law when there is recognition of the moral right to choose abortion. The legal battle has been won, but winning the moral battle is important in Norway now. I believe that until having an abortion is considered as acceptable morally as using contraception, women will not have gained their full reproductive rights.

Résumé

En 1978, la loi sur l’avortement a été libéralisée en Norvège. Elle autorise l’avortementàla demande jusqu’Á 12 semaines de grossesse et plus tard, avec l’accord d’une commission médicale qui tient compte de l’avis de la femme. En 2003, 96% des avortements avaient été pratiqués avant 12 semaines de grossesse. La population appuie la loi actuelle et le droitàl’avortement ne semble pas menacé, pourtant les opposantsàl’avortement attaquent fréquemment la loi. Les débats sur les récentes lois relativesàla biotechnologie et les difficultésàintroduire la pilule abortive, sous prétexte qu’elle facilite trop l’avortement, supposent que l’avortement continue de susciter des scrupules moraux. Alors que l’avortement chez les jeunes célibataires est mieux accepté, de nombreux femmes mariées pensent qu’elles doivent justifier leur décision. On attend des femmes que leur conduite sexuelle leur inspire du chagrin, de la honte et de la culpabilité pour de nombreuses raisons, mais particulièrement si le résultat est une grossesse non désirée. Il est plus facile de protéger la loi quand le droit moral de choisir l’avortement est reconnu. La bataille juridique a été gagnée, il faut maintenant gagner la bataille morale. Je pense que tant que l’avortement ne sera pas jugé aussi acceptable du point de vue moral que la contraception, les femmes n’auront pas conquis pleinement leurs droits génésiques.

Resumen

En 1978 se liberalizó la ley de aborto en Noruega. Ásta permite el aborto voluntario hasta la semana 12 de embarazo, y aquellos de mayor edad gestacional con la aprobación de una comisión médica, tomando en cuenta el parecer de la mujer. En 2003, el 96% de los abortos se practicaban antes de la semana 12 de embarazo. Aunque gran parte de la población apoya la ley actual y el derecho al aborto no parece estar amenazado, los oponentes del aborto atacan la ley con frecuencia. Los debates sobre las recientes leyes biotecnológicas y las dificultades para instituir el uso de la páldora abortiva, bajo la falsa alegación de que facilitaráa demasiado el aborto, implican continuos reparos morales sobre éste. Aunque el aborto entre las mujeres jóvenes solteras es más aceptado, muchas mujeres casadas sienten que deben justificar su decisión. Se espera que las mujeres experimenten angustia, verg enza y culpa por su conducta sexual por muchos motivos, pero sobre todo si el resultado es un embarazo no deseado. Es más fácil proteger la ley cuando existe reconocimiento del derecho moral de la decisión de abortar. Se ha ganado la batalla judicial, pero ahora es importante ganar la batalla moral en Noruega. Creo que hasta que la interrupción del embarazo se considere aceptable moralmente igual que el uso de los anticonceptivos, las mujeres no habrán adquirido todos sus derechos reproductivos.

Keywords:

• abortion law and policy
• contraception and unwanted pregnancy
• ethics
• Norway

Abortion has been a legal right in Norway my whole adult life. I am part of the first generation in Norway to grow up in a society where abortion is a woman’s right and the majority of women of my generation consider it a natural right. Furthermore, there is good access to birth control and quality maternity care, long maternity leave and legal protection for pregnant women against losing their jobs. In spite of this, there is still quite a lot of moral censure when it comes to women’s sexual lives.

The anti-choice movement, and the pro-choice movement too for that matter, have not been very visible in the public arena in Norway since 1980. There is considerable agreement among the population about the central principles of the Norwegian abortion law. The right to abortion does not seem to be under threat, yet opponents of abortion attack the law and women’s independence frequently. Now, women’s right to decide about their own bodies and to fully determine for themselves whether or not they should have children is being challenged through debates about genetics, new reproductive technology and legal rights for fetuses, new arenas for attack by the anti-choice movement.

History of abortion law in Norway

A 1902 law stated that a woman who had an illegal abortion would be punished with three years of imprisonment and the person performing the abortion would be punished with six years of imprisonment. The law said nothing about what constituted a legal abortion, but in the discussions before the law was passed there seemed to be general agreement that abortion would be granted if the woman’s life or health was at serious risk or if the baby would not survive the pregnancy. In general, it was the doctors who decided if an abortion was legitimate or not. There were some attempts at changing the law in the 1930s, but Norwegian women had to wait until 1964 before a new law on termination of pregnancy was passed. However, there was a steady rise in numbers of both legal and illegal abortions after the 1930s. Mere social reasons were not yet taken into consideration.¹

The 1964 law permitted abortion on medical grounds, fetal malformation, rape or incest, or if the woman was mentally ill. The application to abort had to be presented by a doctor, approved and signed by the husband, and put before a commission of two doctors, who made the final decision. The number of illegal abortions fell and legal abortions began to rise; by 1970, nine out of ten applications were passed by the commissions.¹

In the 1970s the battle for women’s right to choose began. Political parties like the Labour Party and the Socialist Party, together with the feminist movement, were very active, and there was an open and active debate in the media and among the people. Both the pro-choice movement and the opposition were very active, and the atmosphere was tense. There was a major discussion in the Parliament on a report about the situation of families and children in Norway.² In the section on unwanted pregnancies, the report focused on preventive action, i.e. provision of contraception and socio-political policies that would make it easier to have children. The report also suggested that women should be able to have counselling before an abortion. The pro-choice movement fought for the right to better and cheaper contraceptives, the right of women to decide without having to present themselves and their situation to a commission and the right of children to be wanted. The discussion in the Parliament culminated in 1975 when a bill was tabled to reform the abortion law. The Socialist Left Party was the first to take a pro-choice stance in their political programme. It became clear though that one of their representatives in the Parliament did not support this part of their programme and as a result, the bill was lost by one vote. The Parliament reached a compromise that allowed abortion for social indications, which was in tune with the views of the majority of the population. Actual practice did not change, but was made legal. Women also got the right to apply to the commission themselves, no longer through a doctor, and they did not need the consent of their male partner. The right of health personnel not to have to assist with or perform an abortion was also introduced.¹

The discussions continued, however, and in 1978 a new attempt to pass a law permitting abortion on request was made. The Labour and Socialist Parties voted in favour, while the Centre, Conservative, Liberal and Christian People’s Parties voted against the bill and supported various amendments. The Liberals wanted to keep the 1975 law, the Centre and Conservative Parties wanted to put restrictions on the 1975 law and the Christian People’s Party wanted to restrict abortion even further to medical reasons and in cases of rape. The pro-choice bill won because of the double vote of the president of Odelstinget, one of the chambers in the Parliament.

The 1978 abortion law and family planning policies

Under the 1978 law, Norwegian women have the right to abortion on request within the first 12 weeks of pregnancy.³ The biggest change was that most women would no longer be dependent on the decision of a commission, that they were the ones to decide and nobody else.

If a girl is less than 16 years old, her parents must be informed before the abortion. Minors who have reasons not to inform their parents can seek permission from the county medical officer.⁴ There is no specified upper limit to the number of weeks of pregnancy for abortion, but after the 12th week the woman must apply through a commission. From 12—18 weeks the law says that the woman’s own views about her situation should be taken into strong consideration. After the 18th week, the majority of abortions accepted are due to fetal malformation, but rape or the woman’s physical health are also acceptable reasons.⁵ There are some regional differences as to the probability of a commission not granting abortion. In the south and southwestern parts of Norway the probability of refusal is eight times as high as in the capital. The fact that these areas have strong religious communities might explain these differences as cultural differences, but this does not excuse them.⁶

Abortions in Norway are provided at all public hospitals where there is a gynaecology ward. (We have a public health system with, until recently, very few private clinics or hospitals.) Abortion is free of charge and the regional health administrations have to make sure that the service is offered. Since the late 1980s, only the Christian People’s Party has retained its opposition to the central principles of the abortion law, getting support only from a few MPs from other non-left-wing parties.⁷

The Norwegian authorities have, since 1978, carefully monitored the number of abortions and developed programmes to prevent unwanted pregnancies, such as sex education in schools, the pill free of charge for girls aged 16—20 and adolescent health clinics.⁸ Before and after the 1978 law was passed, its opponents claimed that couples would become less cautious with contraceptives than before because it would be so easy to have an abortion. History has shown, however, that there have been no changes in the rate of abortions. The numbers have been declining slightly but in general they have been stable, except for adolescents, among whom the abortion rate is 30% lower than 25 years ago.⁹

When the 1978 law was finally passed, many people thought the battle was over, but its opponents had of course not given up. There have been regular attempts to narrow the indications and ever-returning calls for mandatory counselling and mandatory time for the woman to “reconsider”.² The most important discussions, however, have been due to developments in the field of genetics, new reproductive health technologies and antenatal diagnostics, and concerns about termination of pregnancies where abnormalities in the fetus are detected. Such abortions are referred to perjoratively as selective abortions.⁷

A new debate on the law on abortion flared up in 1982 in the Parliament in relation to fetal diagnostics, and a politician from the Christian People’s Party used the opportunity to talk about his concern that healthy fetuses might be being aborted in cases where the diagnosis might be wrong. But there were no real attempts to change the law or the practice.²

Engineer at work on the design of an oil rig

Norway passed its first biotechnology law in 1994 and during the debates in the Parliament the issues of selective abortion and abortion in general were raised repeatedly. The Christian People’s Party tried to introduce a clause defining the fetus as a human being, with its own rights from the moment of conception, but the other parties turned down the proposal.⁷ In reality the major discussions have been on so-called selective abortion. The two left-wing parties, Labour and Socialist Left, have had different views on this matter. While Labour have applied their views on abortion generally to selective abortion, the Socialist Left have expressed fears that permissive diagnostic procedures could send out some wrong signals, i.e. that the disabled are of less worth than the able-bodied,³ a position which may be due to the fact that they have a major group of voters that are Christians. The same discussion started again before a new law on biotechnology was passed in late 2003. The anti-choice side say they fear that society will look upon people with disabilities as second-rate citizens if it becomes possible to detect fetal abnormalities at an early stage of pregnancy. The pro-choice side, on the other hand, defends fetal abnormality as a legitimate reason for abortion, and supports the moral capacity of each woman to make this decision.¹⁰

Representatives of the governing coalition of Conservative, Liberal, Centre and Christian People’s Parties argued in the mid- to late 1990s that it would be too easy for a woman to have an abortion if she had used emergency contraception, and they tried to restrict its sale. Their political counsellor at the Ministry of Health said that the most important thing was to make contraceptives more accessible instead of emergency pills. She also said that if a young girl used the emergency pill she wouldn’t have the same chance of thinking things through as she would in the abortion process.¹¹ Emergency contraception began to be sold over the counter after a shift in government in 2000 from the coalition to the Labour Party (one of the first countries to do so). Girls 16—20 years of age were at the same time given the right to get some brands of contraceptive pills for free, and midwives and certain nurses the right to prescribe them. These policy changes have led to increased sales of emergency contraception. In spite of a shift in government back to a coalition of the Conservative, Liberal and Christian People’s Parties, the government has not tried to change current practice.

In 2003, 70% of abortions were performed under nine weeks of pregnancy, including medical abortions,^* while 96% of abortions were performed before 12 weeks of pregnancy. There has been a slight decrease in the overall abortion rate from 14.6 per 1000 women aged 15—49 in 1980 to 12.9 in 2003. Similarly, the percentage of abortions to live births was 26.5% in 1980 compared to 24.5% in 2003.¹² In general, the figures are stable.

The age at sexual debut in Norway is approximately 17 years for girls and slightly higher for boys,⁴ but the mean age for having a first child is 28—29. The abortion rate for those aged 15—19 has decreased since 1980 from 24.2 to 16.3 in 2003, while those aged 20—24 had the highest rate, 26.8 in 2003.¹² I believe that the pill being free of charge for those under 20 years of age might explain some of the difference.

Recent surveys of women’s views on abortion

A hospital in Trondheim did a comparative survey in 1983 and 1993 of women’s attitudes in connection with the decision to terminate their pregnancy, by asking women seeking abortion the same questions both times. More women said that it was a difficult decision in 1993 than in 1983, which was only shortly after the current law had been passed.¹³ This could be taken to show that the climate when it comes to abortion has changed.

Most striking in the findings was that in 1983 78% of the women had no doubts about the decision, while 10% did have doubts but did not find it a difficult decision, and 7% had doubts and found it a difficult decision. In 1993, in contrast, only 33% had no doubts, while 38% had doubts but did not find it a difficult decision and 23% had doubts and found it a difficult decision.¹³

Although mandatory counselling before abortion has been a longstanding demand from the anti-choice side, it is interesting that the same survey also showed that 85% of women had made their decision to have an abortion before contacting the health services, while only 0.6% made their decision together with the doctor.¹³ A survey from six hospitals in three different counties showed that 7% wanted counselling in connection with their visit to the hospital before the termination of pregnancy.¹⁴

The Norwegian teenage magazine Det Nye carried out a survey about abortion among their readers in 1996. Their summary of the results in many ways sums up general thinking in Norway on abortion, or at least how people’s thinking is generally presented:

“The typical reader is a good girl: She doesn’t smoke, she has never taken drugs nor feels the urge to do so. She is open to the thought that there might be a God. She has never had an abortion, and even though she is in principle in favour of abortion on request, she could not do it herself. The pill is the most common means of contraception and secondly there are condoms. But as many as 13% use withdrawal and 11% don’t use any form of contraception. Eight out of ten answer that they are generally in favour of legal abortion, 14% are unsure, while 6% are opposed to it. 11% of the girls have had an abortion themselves.” ¹⁵

The myth about the difficult decision

The battle for choice on abortion has to work on different levels. Norwegian women have won the formal right to abortion but in addition to protecting the fortress of the law, there is an ever-present moral battle to be fought. I believe that the moral battle is the most important one in Norway at the moment and that it is easier to protect the law while demanding recognition of the moral right to choose abortion.

The greatest and the longest is the battle for people’s support for the right to have an abortion. Even though there are few people in Norway who believe or wish that legal abortion should be abolished or disappear, they do seem to think that there is a difference as to who should have one. For example, most people find it easy to understand that a young woman, 16 years of age, without a job, education or a steady partner, might not wish to become a mother. But many find it difficult to accept that women in their late 20s who have an education, a job and a partner would make the same choice without feeling obliged to justify the decision. Such ideas mean that the moral pressure is substantial. Abortion is still taboo at some levels and is generally only discussed as a medical, ethical or political issue. Similarly, it has been difficult to introduce medical abortion in Norway because some people think it would make abortion too easy, a good example of the underlying ambivalence concerning abortion that does not apply to any other medical procedure. Abortion very often belongs only to private conversations, and many people only tell their closest friends and family they have had an abortion, and sometimes no one at all. When they do talk about it, they also very often start by defending their decision, as if they expect opposition from the person listening.

The claim that most women get problems and experience guilt, shame and sorrow after an abortion is a favourite assertion of anti-choice activists. Strangely, this claim has almost become an accepted truth among the defenders of choice on abortion as well, despite all the existing evidence to the contrary. Women who consider termination of pregnancy think thoroughly through their decision. There is no evidence that those who have experienced a termination have a higher risk of psychological problems simply due to the procedure. Most such reactions are connected with the woman having a history of previous psychological illness, or if the procedure was done by women against their will because of pressure from somebody else or where the decision was highly conflicted.¹⁶ There is no evidence in Norway that these occur in more than a very few cases. That some women experience sorrow, on the other hand, is a natural reaction in line with reactions to other difficult choices and situations in life.

Pregnant women who choose abortion are a diverse group. Anxiety about becoming a single parent is one of the strongest reasons why women choose abortion in Norway. Factors that can make a pregnancy unwanted are the same for women who support a liberal abortion law as for those who are against it. Women find the decision to have an abortion the first time harder, while the threshold for choosing abortion is lower subsequently.¹⁶ The consequences and problems connected with legal abortion are not as great as anti-choice activists claim. However, if it is constantly asserted that every woman has problems following an abortion, as if it were a general truth, women may end up experiencing doubts for this reason, or will at least fear that they will have doubts and wonder what is wrong with them if they feel only relief.

I believe that shame and guilt are cultural barometers. A young girl told me that a friend of hers had been overwhelmed with flowers and comfort from her friends after having had an abortion. The girl who had the abortion saw this as a destructive response, however, in that her friends had tried to make her feel a sorrow and a loss that she did not feel. The only thing she felt was relief. Today it has almost come to the point where you have to say you are sorry and have doubts about your decision to have an abortion in order to be regarded as a moral person. This does not mean that one should not try to offer help to those who might need it, but a too strong emphasis on abortion as a psychologically difficult experience that must bring sorrow and doubts is not acceptable either.

The pro-choice response to the changing climate

If the moral right is not won, it is easier for the anti-choice movement to undermine the legal right. In Norway, the legal right was not won until the actual practice had made abortion more accessible and the general climate accepted abortion as a solution to unwanted pregnancy. Thus, in some ways the moral right was won before the legal right. However, the survey in Trondheim¹³ shows that the climate can again change. In the 26 years since Norwegian women won the legal right, the pro-choice movement has been on the defensive and has in general not been very eager to lead an active debate. Janet Hadley, a pro-choice activist from the UK, observed that while the anti-choice movement tries to make abortion into a political issue, the pro-choice movement tries to present it as anything but a political issue in response.¹⁷

Hadley also observed that the pro-choice movement tends to use arguments such as that abortion is a difficult decision, it is a tragedy, it is a last option, it is deeply private, but it is necessary. Very often they also add that being pro-choice is also being pro-family and that better contraceptives will reduce the need for abortion.¹⁷ These arguments are similar to the arguments of the anti-choice movement in that both present abortion as a second-rate decision morally. Hadley also says that an overwhelmingly defensive stance on abortion beams out the message that contraception is always preferable to abortion.¹⁸ When we say that contraception is always the best choice and abortion is a tragedy, we also strengthen the idea that a woman who seeks abortion has failed and should apologise for what she has done. However, there is still no such thing as a 100% secure contraceptive. Many women experience unwanted side effects from contraceptives. We have to accept that women may choose to use a less effective means of contraception and have an abortion if it fails, without thinking that it is less morally acceptable.¹⁶

Women are expected to feel shame and guilt because of their sexuality for many reasons, but especially if the result is an unwanted pregnancy. I believe that until having an abortion is considered as acceptable morally as using contraception, women will not have gained their full reproductive rights.

Acknowledgments

This article is based on work I did originally as a medical student in 1999. I would like to thank my supervisor during that work Dr Johanne Sundby, Professor, Section for International Health, University of Oslo, Institute of Community Medicine.

Notes

* Haukeland University Hospital was the first hospital in Norway to use mifepristone + misoprostol in 1998, but until 2001, mifepristone was not officially approved or generally accessible in Norway; hospitals had to get a special permit to provide it. After it became approved, more hospitals started to offer it. In 2001, 16% of abortions under nine weeks of pregnancy were medical abortions; this increased to 39% in 2003,¹² and will probably continue to increase.