In considering the role of the State in the promotion of welfare one is struck by the application of John Stuart Mill’s harm principle (On Liberty, 1859) to contemporary concerns, particularly to the question of unfettered access to sexual and reproductive health care, and to the rising incidence of gender-based violence. The harm principle demands the actions of individuals be curtailed if they mean to harm others. During this period of disruption brought about by measures to mitigate the national health emergencies occasioned by the novel coronavirus, the natural rights of citizens have been curtailed in the service of the collective welfare. In so doing, women’s autonomy, bodily integrity and best judgement have been obscured within the deceptive orotundity of equal rights discourses – as part and parcel of the stark reality of inhabiting and negotiating the world in a female body manifestly determined by culture and by the social body.
Abortion is an ethically and legally divisive issue, and an area suited to appropriate action by the State, were it committed to the well-being of all citizens. The State –referring here to the United Kingdom – has, during the first weeks of the global pandemic crises, taken a characteristically paternalistic stance on abortion rights. On 25 March 2020, the State reneged on a pledge announced two days earlier that would ensure continued early access to medical abortion[i] services during the health crisis and national lockdown. A week later, following widespread concern, the provision of at-home abortion pills was reinstituted. Opposition to abortion remains entrenched within Government[ii] and the brusqueness of this back-and-forth pawing with our civil liberties is worrisome.
Despite having worked on the liberalisation of the law alongside the Royal College of Obstetricians, the Royal College of Midwives and14 other related agencies, the Department of Health and Social Care provided no further justification. Women seeking abortion services are normally required to travel to a clinical facility, seeking the permission of two doctors. Effectively, under stringent lockdown rules, women would have had to tell police officers they have left their homes to seek pregnancy termination help. [iii] Women in isolation, and in coerced relationships, or those with disabilities would have found it difficult to travel to a clinic, many of which closed in the first weeks of the national lockdown.
It is not unheard of for states, the world over, to permissibly exercise restraint against a person only if it does so to prevent harm to others (the unborn child or foetus). A person’s inability to – or, with cause, unwillingness to[iv] – carry a pregnancy to term can be sufficient condition for the State to exercise restraint by way of stripping civil liberties, and preventing access to care. Is this, however, a legitimate use of power?
Setting aside the question of the pre-conscious, conscious or spiritual state of the foetus, and the legal and human rights of the unborn child, let us consider the onerous burden placed upon the actual person, who, at a vulnerable time, is to be denied the right to access care, the right to choice, and to autonomy over their own body. Is there a sufficient and justifiable condition for liberty-restricting state action? The state has not always acted in the best interest of women, as one of many vulnerable groups. There is ample anecdotal and current evidence to suggest that when given the mandate to do so, the state has failed, through lack of political will or resources, or through discriminatory practices that prejudicially affect others, to prevent harm being done to women.
Consider the pernicious systems of harm perpetuated by humans onto others: the machinery and economies of slavery; and the organised rape of women in conflict, and its habitualness in peacetime. Yet some of the world’s greatest statesmen and proponents of the equality of man were slave owners, such as one of the Founding Fathers of the United States (Jefferson); or believed, once slavery was abolished, that property owners needed to be indemnified (de Tocqueville) for loss of property[v]; or supported the machinery in other ways –Mill himself was a servant of the East India Company. The organised rape of women in conflict was only declared a crime against humanity in 2008, with the adoption of Resolution 1820 by the UN Security Council.
Gender-based violence goes hand in hand with the long-standing legal, economic and political subjugation of women. The year 2018 commemorated the centenary women’s suffrage. That is, in the scope of human evolution, and the rise and fall of civilisations, women have been recognised in personhood just these last 100 years. Despite epistemic capabilities, robust legal frameworks and policing, states have failed these citizens precisely in the realm of freedom from violence as an inalienable human right.
The total burden of gender-based to society is estimated at £66bn annually in the U.K., the most comprehensive figure to date. [vi] It estimated 1 in 4 women will experience domestic abuse, and 1 in 5 sexual assault during her lifetime. Prosecutions for rape and sexual assault stand at an all-time low, since official record-keeping began,[vii] at less than 2% of reported cases. More rape and sexual survivors are reporting acts of violence yet laws demanding survivor’s phones and personal information cause a large number of complainants, [viii] to feel it is they who are under investigation. Cases collapse due to a number of factors: lack of forensic evidence, or lack of rape kits or trained medical staff to administer them and advise on next steps; lack of knowledge of the legal system and fundamental rights, or no recourse to legal aid. Socio-cultural factors such as placing blame on the victim are harder to shift without tackling the bases of gender disparity and gender stereotyping.
The question of gender-based violence comes to bear as one facet of the human experience that is not resolved through the application of the harm principle through the rational system of law. In fact, there is no congruence within the law with respect to the application of rights. Rights are subject to socio-political factors, political will, and resource allocation, and the deeply entrenched – worldwide – bias against women.[ix] It is subject now to emergency powers brought on by states, the world over, to mitigate the harmful effects of the pandemic. Self-isolation, curtailment of movement, and economic insecurity beget destitution, disempowerment and alienation.
The harm principle has non-consensual element to it, the maxim volenti non fit injuria, or the Utilitarian doctrine Mill explains as: ‘that is not unjust which is done with the consent of the person who is supposed to be hurt by it’. The sexual liberation of women has a dark underbelly which is the commoditisation of women’s bodies for profit, without due regard for the person trying to live a life in the freedom to which that liberation alludes. It has not translated into unencumbered access to sexual and reproductive health and rights, or the safeguarding of the body against violence. Gender-stereotyping and gender-based discrimination that remain deeply entrenched in society feed into the maltreatment of women’s bodies and remain, still, ‘one of the chief hindrances to human improvement’ (Mill, The Subjugation of Women, 1869). Why?
Little has changed since the Victorian-era charitable foundations that had as their mission the care of foundling children, taking in, by petition, the babies of first-time unwed mothers. Fallen women had to prove that prior to their fall, they had been respectable. Their applications contained detailed accounts of their ‘fallenness’: they had to show contriteness if they wanted help from the State. The representation of women in painting and literature at the time defined outward codes of sexual behaviour and respectability, weaving themselves into the monolithic edifice of public morality, that privately endorsed institutions of prostitution and pornography. In contemporary society, the representation of women in movies, advertising and the media, centres on the body, and in so doing, condones its widespread public consumption. Legislation that curtails certain necessary freedoms, oftentimes however, remains an opaque process, accompanied by an outward display of morality. The most egregious form of intimate partner violence can now be successfully defended in court, with proceedings detailing the supposed sexual preferences and lifestyle of victims[x], too dead to counter the claims of defence attorneys.
Allowing the State to dictate the terms of intervention in order to prevent harm, when harm is qualified only to serve narrow special-interest narratives, or tragically, budgetary allocations, is an aspect of public policy deliberations ethically-minded citizens must be empowered to take up and express through participatory decision-making channels.
References and Additional Reading
[i] In England, Scotland, and Wales abortion is allowed in certain circumstances specified in the Abortion Act of 1967 (and revised by the Human Fertilisation and Embryology Act of 1990). Abortion was decriminalised in Northern Ireland in 2019. In England and Wales abortions that are not covered by the circumstances listed in the 1967 Act are covered by the Offences against the Person Act of 1861. This means abortion is part of criminal law, and therefore, not available on demand.
https://www.legislation.gov.uk/ukpga/1967/87/contents
https://www.legislation.gov.uk/ukpga/Vict/24-25/100/section/58
The law has also failed to keep pace with best practice and advances in the field of medicine. In England, Scotland and Wales women seeking abortion services require a two doctors to sign off on the termination, after first having demonstrated she is at physical or mental health risk as a result of her pregnancy. Women still risk prosecution, and the law is subject to interpretation.
See: British Medical Association (2017). Decriminalisation of abortion: a discussion paper from the BMA, February
[ii] with 70 Members of Parliament voting against lifting the ban in Northern Ireland in July 2019, whilst the country was in the grip of political chaos. Dozens more abstained. Abortion was decriminalised in Northern Ireland in October 2019.
[iii] An expected 44,000 women across England and Wales will require access to specialised health centres in the next 3 months, during which time the window for early access for medical intervention with regard to terminations would have closed.
[iv] I take account here only of some areas that may come to bear upon the decision to terminate a pregnancy: escaping abuse, rape, fear of destitution and child poverty.
[v] The first free country in the Western Hemisphere, Haiti, inspired by the French Revolution, took arms against their colonial masters (only 5% of the population) and declared themselves emancipated 1794 and independent in 1804, and yet, France required indemnifications (under threat of invasion) for the loss of their colony and subsequent harm to their coffers, that was paid until 1950.
Piketty, Thomas (2020). Capital and Ideology (The Belknap Press of Harvard University: Cambridge, MA: London, U.K.)
[vi] Home Office, The economic and social costs of domestic abuse, January 2019 [https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/772180/horr107.pdf]
[vii] Rachel Krys, End Violence Against Women Coalition
[viii] Male survivors face different challenges. The stigma around male rape, and a culture of toxic masculinity discourages men from coming forward. For more information, see Petersson, C.C. & Plantin, L. Clin Soc Work J (2019) ‘Breaking with Norms of Masculinity: Men Making Sense of Their Experience of Sexual Assault’
[ix] The first UNDP Gender Social Norms Index analysed data from 75 countries, collectively accounting for more than 80% of the global population, and found nearly 90% of those interviewed have ‘a deeply ingrained bias’ against women.
United Nations Development Programme (2020). Tackling Social Norms: A game changer for gender inequalities . Human Development Perspectives 2020 http://hdr.undp.org/sites/default/files/hd_perspectives_gsni.pdf
[Accessed 24 January 2020].
[x] ‘Rough sex’ defence