On freedom of speech

William Connolley asks in a comment to my post on abortion

Are you going to allow the mental anguish of millions of wacko muslims to be a reason for banning films they don't like?

My answer is that any ban would be ultra vires, but I wouldn't if I could.

I think the law goes too far already in restricting free speech.  I agree with the 'Reform Section 5' campaign - "Nobody has the right not to be insulted or offended" - to amend Section 5 of the Public Order Act.  (This is the Section in relation to which John Terry was unsuccessfully prosecuted.)  I think it reasonable for the law to prohibit verbal bullying - monkey chants from football crowds for example - but not to attempt to enforce good manners.  Not everything which is undesirable should be illegal.

I'm reminded of an incident between Glenn McGrath, bowling for Australia, and Ramnaresh Sarwan, batting for the West Indies in a team captained by the star batsman Brian Lara.  McGrath had been talking to Sarwan a lot, apparently trying to wind him up - Sarwan was thought to be vulnerable to this sort of distraction.  Eventually, an exchange something like this took place:

McGrath: What does Brian Lara's dick taste like
Sarwan: I don't know, ask your wife
McGrath: If you ever fucking mention my wife again, I'll fucking rip your fucking throat out 

Outrageous behaviour by McGrath?  Well, he had recently found out that his wife's cancer had recurred (she died five years later).  Heartless by Sarwan?  Well, there's no reason to think that he knew about the cancer.  Homophobic?  No, probably not, but you could read it that way if you wanted.  It seems to me that the authorities were wise to make no public intervention - the players sorted it out.

But I digress: William C was asking about film censorship, not verbal insults.  Well, as a practical matter we should not ban films because people report being offended by them, because that would give general licence to get any film banned. How about banning visual depictions of the prophet Muhammad? - that seems to be something which causes genuine anguish to some Muslims.  If we were going to do that, should we not equally ban all visual depictions of people or animals, if they offend religious sensibilities? My understanding is that the hadiths cited in support of the proscription do indeed apply to all such depictions (5268-71 here, 646-7 here, 447-50 here.)  Evidently we cannot cater for all religious sensibilities without banning almost everything: I prefer to keep the films and give the religious the opportunity to demonstrate their fortitude.

There is one restriction I would countenance, which would be a ban on the representation of falsehood as truth.  So you could make a film about a fictional character - call it Life of Brian - and say what you want about him.  If you chose to make a film about a real character you could either represent it as a work of fiction, or restrict yourself to a narrative having at least some support in the historical record, except where the record is silent.  One would want the courts to err on the side of permissiveness.

If mental anguish is not a reason to restrict insults, or films, why should it be a reason to restrict abortions?  First,I didn't say it should; my main point was that campaigners against restrictions on abortion should recognize that it does cause real distress.  Second, I give reduced weight to the essentially arbitrary distress caused by offence against religious doctrine - arbitrary because the distress could be abolished merely by changing the doctrine.  Whereas the anguish felt by opponents of abortion is, I think, a consequence of an instinctive not a learnt feeling that a fetus is a person.

Thoughts on the abortion debate

Following the recent reshuffle, the new Minister for Women, Maria Miller, and the new Health Secretary, Jeremy Hunt, have separately reaffirmed their views that the time limit for termination of pregnancy under section 1(1)(a) of the Abortion Act should be reduced from 24 weeks, to 20 weeks and 12 weeks respectively*.

That provoked a flurry of media commentary.  Perhaps the most discussed contribution has been Mehdi Hasan's article asking for respect from the left for his anti-abortion views.  Kelly Hills declined to grant it.  Chris Dillow offered a utilitarian perspective.  Sarah Ditum agreed with Hasan that the issue shouldn't be about left and right, and disagreed with him about everything else.  Meanwhile the estimable Kate Smurthwaite appeared on divers radio programmes to give a feminist perspective, provoking Paul B (that's not me) to recommend moderation in debate.

What strikes me is that much of the argument is not very rational.  Why 24 weeks, or 20 weeks, or 12 weeks, or any other specified time limit?  And if abortion without time limit is ok (it's legal in some circumstances under sections 1(1)(b-d) of the Abortion Act), then why not infanticide?  The 24-week limit is usually presented as being related to the earliest time at which a fetus might survive outside the womb, but why should that be the criterion?

Matthew Parris wrote a trenchant piece in The Times on Saturday [paywall] pointing out that Michael Nazir-Ali's carefully constructed arguments against gay marriage seem rather insincere when one learns that he's actually opposed to all homosexual relationships.  Similarly, to get to the real point in arguments about abortion we need to understand the true motives involved.  So here's my guess.

First, the arguments against abortion are not primarily religious.  As Hasan points out, Islamic scholars are divided on the issue.  So are Catholics and Protestants.  So are Orthodox and Reform Jews.  Evidently scripture offers no unambiguous guidance on the question.  And while the Catholic Church is firmly against abortion, Catholics in general are often willing to ignore its teaching, for example on contraception, or the death penalty.  (It's worth noting here that Catholic teaching on the issue does not concern itself with the question of ensoulment, so we needn't consider it in discussing time limits,)

Second, there is an instinct common to almost all of us to protect infant children (I suppose it's an adaptive trait).  It's natural to extend that to fetuses who look like infants.  I believe that this is the basis for almost all contemporary opposition to abortion.

Third, no one of even a remotely liberal disposition wants to force women to bear children against their will.  For some, their reluctance is tempered by the extent to which they think the woman should have avoided getting pregnant if she didn't want to bear the child.

To me, it makes a lot of sense to frame the issue as a trade-off between our instinct to protect babies and our reluctance to oppress women.  I doubt that the two sides of the argument differ much in their feelings about babies, though those in favour of legal abortion may have made some effort not to attach their feelings to fetuses in the womb, while those against have gone the other way.  But there is a big difference, and to a large extent it's a left-right difference, in attitudes to women's reproductive autonomy.

Seen in that light, it's clear that infanticide is never permissible- the mother's autonomy is no longer at issue.  Earlier, a fetus which might be capable of surviving outside the womb is physically no different from a very premature baby, and therefore evokes very strong protective instincts, making us very reluctant to kill it.  Before that, the later an abortion takes place the more like a baby the fetus is, and the less likely we are to fall on the woman's side of the trade-off.    By contrast, a blastocyst at around the time of implantation is visually nothing like a baby: anyone who knows this but objects to abortion at that stage is making a moral argument about its status as a human being.

To return to the commentaries I cited earlier.  Hasan is, incidentally, right about the abortion law in other European countries: if we were to change the time limit in 1(1)(a) to 14 weeks, that would make the law here very much like that in France.  If that's what Hunt is proposing then it's not an extreme position by European standards.  And I agree with Hasan that his and other views against abortion should be respected.  One doesn't have to accept his argument about a right to life for fetuses to recognize that the pain many people feel at the fact of abortion is real (Dillow singularly fails to weigh this pain in his analysis).  I agree with Paul B (that's still not me) that “if you object to having an abortion then don’t have one” is avoiding the point, albeit it's an effective way to remind a man that he has less skin in the game than does a fertile woman.

If we accept the mental anguish of third parties as a factor, how should that affect our approach to abortion?  First, we should try to reduce late abortions by making access to early abortions easier.  Second, we should treat all abortions as a matter for regret - not blame, but regret - the more so the later they occur.

And what of the time limit?  It would certainly be more comfortable to have it on the short rather than the long side of the earliest time at which survival outside the womb is possible.  That's the argument for 20 weeks.  Hills writes "Approximately 1% of abortions – around 2,729 – are done at or after the 20th week; numbers that happen to correspond pretty closely to how many abortions are granted due to there being abnormalities with the foetus that are largely considered incompatible with life."  That would seem to be an argument for reducing the time limit in 1(1)(a) to 20 weeks, since abortion would remain legal without time limit under 1(1)(d) - "a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped".  However, if there are no abortions under 1(1)(a) after 20 weeks, then it makes no difference if we change the limit.  Whereas if, more plausibly, there are some, we should find out how many and why before we change anything.

I've steered clear of discussing any right to life for the fetus.  (Personally I don't understand arguments about rights: I'm more interested in obligations.)  Chris Dillow in his piece says "none of you should give a damn about my opinion".  But, if you want to know, I think that our obligations towards (or, if you prefer, the rights of) a blastocyst/embryo/fetus/baby increase progressively as it develops.  The only coherent alternative I can see is that they arise fully formed at the moment of conception, as the Catholic Church holds.  And I don't believe that, because a zygote is very obviously not a person.
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*Hunt may mean 12 weeks embryonic age, timed from conception, whereas the current limit is in terms of gestational ago, timed from last menstrual period, about two weeks earlier.