Life Illumined

On a Proposal for a New Abortion Law

An Abortion Commission instituted by the Norwegian government proposes new legislation on abortion. Norway’s Council of Catholic Bishops regards several aspects of the proposal as highly problematic. You can read an unofficial English translation of our response to the hearing here. 

1. Introduction. The Department of Health and Care has initiated a hearing of the Abortion Commission’s document NOU 2023:29 Abortion in Norway —New Legislation and Better Services. The Commission wishes to suppress the current Legislation on the Interruption of Pregnancy from 1975 in order to introduce new legislation on abortion.

At the heart of the majority’s proposal is a wish to extend the term for so-called ‘free abortion’ by six weeks, in order that interruption of pregnancy can take place until the end of week 18, submitted to no other condition than the pregnant woman’s preference.

Norway’s Council of Catholic Bishops wishes to respond to the hearing. Our concern is with the law proposal of the Commission’s majority.

The Council represents the Catholic Church in Norway. Its members are Bernt Eidsvig, bishop of Oslo, and Erik Varden, bishop of Trondheim and apostolic administrator of the prelature of Tromsø.

2. Discussion of the Deliberations of the Commission (‘The Bill of Hearing’). It is axiomatic in Catholic Christian anthropology that human life begins at conception and deserves, from that moment on, respect and legal protection. It is our duty to uphold this principle.

This does not mean that we do not understand the qualms to which a pregnant woman may be exposed. These are to be met with care and respect both medically and pastorally.

We acknowledge the challenge with which the legislator is faced in a Norwegian context, in a society which, though it rests as per the Constitution (in §2) on Christian humanistic values, embraces a range of opinions and existential options. The proposal for new legislation on abortion represents a step away from Norway’s Christian and humanistic heritage in a way which is not limited to its specific purpose to prolong the term for free abortion.

The Abortion Commission’s Bill of Hearing runs to some 145,000 words. It is rich in repetitions. Its genre is unclear. Discourse moves in fits and starts from a scientific range to a range that is political, even ideological. As a result the text forfeits stringency. The multitude of words serves to obscure fundamental conditions. Within a framework marked by terms such as ‘better services’, ‘care’, and ‘respect’, a perspective on human life emerges that calls for critical response in a democratic society.

We wish to focus on some aspects of this problematic perspective.

2.1 A Change in the Purpose of the Law. The purpose of current legislation is, according to its §1, to ‘ensure that all children enjoy requisite conditions to grow up securely’. Part of this purpose is an undertaking to ‘keep the number of interrupted pregnancies as low as possible’. The first paragraph of the new proposal approaches the matter differently. This legislation would simply ‘ensure that pregnant women have an equal right to abortion and access to secure abortions, care, and support’ in order that they may ‘make independent decisions about their own bodies and private lives’.

The word ‘children’ is omitted. True, the paragraph states a wish to ‘secure respect for unborn life’, but this aspect is submitted, during the course of the text, to so many conditions as to be rendered almost meaningless.

The proposed new legislation eliminates the legislator’s current resolve to ‘keep the number of interrupted pregnancies as low as possible’. Indeed, this purpose is explicitly rejected (cf. n. 22.1)

2.2 Depersonification. Current legislation recognises that consideration of abortion is complex. It affirms in §2:

If pregnancy leads to serious difficulties for a woman, she is to be offered information and guidance about the support society can offer her. The woman is entitled to counsel in order to be able to make a final decision. Should the woman find, after being offered the information referred to and counsel according to Point Two of §5, that she still cannot complete her pregnancy, she will herself make the final decision to interrupt pregnancy as long as this intervention can take place before the end of week 12 and as long as weighty medical reasons do not speak against it.

Here, the first duty of society is to support the woman so that she can keep her child. She is granted the possibility to interrupt her pregnancy within clearly defined boundaries, but it is made clear that the choice in question is a matter of life and death. One aspect of a truly humane society is that no human being should be surrendered to make such choices on their own.

If we turn to the new proposal’s §2 we see a contrast. Here it is tersely stated: ‘Pregnant women are entitled to abortion until the end of week 18.’ The paragraph then lists conditions to enable abortion also beyond the stated term. The vocabulary of legislation is rhetorically translated from a register of humanity to a register to consumerism rooted in terms such as ‘right’, ‘claim’, and ‘quality provision’. The woman’s decisional process is entirely privatised.

Whereas current legislation lays down that ‘The request to interrupt pregnancy is to be presented to a medical doctor’ (§5), face to face, the Abortion Commission envisages that abortion shall henceforth be available for order on the internet: ‘The webpages [the portal of Norway’s national health service] will be developed with modules by which to require abortion and a digital form by which to apply for abortion’ (n. 30.3).

The choice of words and the planned procedures point towards a depersonification of a process that in reality is deeply personal.

In our view, such a development does not serve society’s benefit. On the contrary.

2.3 Simplification of Fundamental Questions. The Bill of Hearing finds that the law from 1975 expresses ‘a paternalistic mentality’ that subjugates women. The Bill stresses that society in recent years has reached a new understanding of ‘individuals’ right to be subjects with power to govern their own lives’ (n. 1.1). It therefore declares the current law to be ‘outdated’ (n. 1.2). This is misleadingly simplifying.

Of course the state should not subjugate women. Of course women, as men, should enjoy autonomy and the right to dispose of their bodies. The question of abortion, however, cannot be reduced (as the Bill tends to reduce it) to a question of gender conflict. What makes the question complex is the fact that it touches, not just one subject – the pregnant woman – but two subjects, in as much as the unborn child must also be recognised as a person.

In principle Norwegian legislation affirms the integrity of unborn life. This is clear from §6 of the Constitution, concerning the royal house’s line of succession, where it is stated: ‘The unborn are counted among those entitled to succession’. Rights and responsibility can, then, be ascribed to an unborn child. The unborn child has a subjectivity that is not absorbed by the mother’s subjectivity.

This element of Norwegian legal understanding is downplayed in the Bill of Hearing, which as a result rests on false terms. The Bill claims that it wishes to ‘secure respect for unborn life’ but adds, in the same breath, that pregnancy is to be regarded as an aspect of a woman’s ‘private life’ (§1). Conceptual confusion becomes evident when we are told: ‘Women carry the citizens of the next generation; to let others make decisions about their bodies and lives is no way to thank them for doing this important work’ (n. 5.4).

The Abortion Commission, not normally a body given to preaching, cites the Bible in an attempt to bolster its vision of ‘self-determination’, a term that, in order that it may be made thoroughly contemporary, is cited in English as ’empowerment’ (n. 23.1). This exposition is one-sided.

The unborn child, who really needs to be empowered, is reduced to an abstraction.

2.4 Muddled Ethical Consideration. The Bill of Hearing describes its understanding of self-determination thus: ‘Real self-determination is about being able to steer the rudder of one’s own life. It is about making decisions that accord with individual preferences and ambitions, in accord with ethical considerations about what one thinks is right’ (n. 23.1).

This is a powerful statement. A Commission appointed to promote legislation insinuates that the final criterion by which to adjudicate what is right and wrong, also when others’ survival is at stake, should be individuals’ ‘preferences and ambitions’ as well as their ‘ethical considerations about what one thinks is right’.

Legislation forms attitudes. If such a subjectivising principle is enshrined in Norwegian legislation the consequences are calamitous, in no way restricted only to the consideration of free abortion. A breach is made by which individuals, on the basis of solitary consideration, may make fatal decisions about what, for other persons, constitutes a life worthy to be lived, worthy to be treasured.

2.5 A Risky Shifting of Boundaries. The question of the unborn child’s status as subject and of its potential autonomy becomes urgent in the context of the Bill of Hearing’s principal purpose: the extension of the term for free abortion from the end of week 12 to the end of week 18.

Current legislation sets out from a clear principle: ‘If there is reason to believe that the unborn child is capable of independent life, permission for the interruption of pregnancy cannot be granted’ (§2).

On account of progress in medical science and technology, capacity for independent life is steadily moved forward in the development of the unborn child. The Bill of Hearing acknowledges that the notion of capacity for independent life ‘is a challenging notion when it comes to the discussion of treating children who are prematurely born and of tracing boundaries regarding late abortions’ (n. 15.2). For that reason the motion is made:

The term of abortion should be indicated by weeks of pregnancy and no longer be linked, as in current legislation, to the notion of capacity for independent life. In the future new methods of treatment and new technology, such as artificial wombs, may lead to changes in what is now considered purposeful in the provision of life-saving treatment for premature babies (23.4).

The Bill envisages a situation in which it is possible, within the term of free abortion as established by law, to ensure a premature baby’s capacity for life outside its mother’s womb.

In practical terms this presents us with the hypothetical scenario of two women both eighteen weeks pregnant turning up at the same hospital: one, desiring to interrupt her pregnancy, is referred to the abortion clinic; the other, desiring to keep her baby, is referred to the maternity ward.

In such a scenario we squarely face the immense moral dilemma intrinsic to any consideration of abortion. The responsibility resting on the pregnant woman’s shoulders is overwhelming.

It is a cause for concern that these factors are not adequately articulated. The law proposal sweeps the criterion of capacity for independent life under a rug, determined to introduce an absolute right to abortion regardless. It would thereby set a worrying precedent for further shifts.

2.6 Hermeneutical ambiguity. On the whole the law proposal obscures our understanding of what is, and is not, a human life. This comes down to a hermeneutic ambiguity suffusing our collective thinking. Let us explain:

  • On the one hand we readily assume the logic present in the Abortion Commission’s Bill of Hearing, where an unborn life is generally referred to as a growth on the women’s body, an organic parasite. Within this logic, any argument from outside on the interruption of pregnancy is understood ‘as an expression of contempt for women’s need to control their own reproduction’ (n. 5.4). It is affirmed: ‘We cannot simply expect a woman to place her body at a foetus’s disposal during nine months’ (n. 5.4.). Abortion after 18 weeks is presented as a formality.
  • On the other hand, science and technology provide the expectant new mother with opportunities to follow her baby’s development from conception. In the App Preglife, for example (according to its own advertising ‘the most used pregnancy and baby app in the Nordic countries’), the future mother may see a fabulous video of a 17 weeks-old ‘baby’ ‘in a very active period’. The baby ‘kicks, grimaces, does somersaults, and swims around’. ‘The baby amuses itself by pulling and squeezing on the long umbilical cord and with its hands it explores its body’. We learn that at the end of week 18 ‘the sensory organs — hearing, sight, touch, taste, and smell — start to develop’.

We are able, at one and the same time, to regard an eighteen week-old foetus as a non-person and as a beloved baby displaying characteristic personality.

The criterion of difference in discernment is the degree to which the baby is wanted.

The Bill of Hearing recognises this:

Many pregnant women who have an abortion late in pregnancy experience their foetus as a child, and sense that they are losing a child, if they are allowed to see or hold the foetus after abortion. We can explain this by the fact that these pregnancies were wanted, so that the pregnant woman had already ‘personified’ her foetus as a child.

Is it to Norway’s benefit to develop legislation sentimentalising the very notion of personhood, ascribing personhood to a wanted individual but withholding recognition of personhood from one that is unwanted, and on this basis expediting that individual either towards survival or to death?

We hold that it is not to Norway’s benefit to develop such legislation.

2.7 Selection. Over and beyond the proposal to extend the term of free abortion to the end of week 18, the Bill of Hearing wishes the law to define that abortion should be permitted beyond this term in a number of cases when ‘the foetus’s medical condition, the condition of the pregnant woman, the pregnant woman’s situation of life, or a combination of these factors, would make pregnancy, birth, the bringing up of the child and future care for the child especially demanding’ (§5c).

Prenatal diagnostics complicate the choices with which parents are faced: ‘Whereas traditionally abortion has been associated with unwanted pregnancies, abortion in the wake of prenatal diagnostics may concern pregnancies that at the outset were wanted until a medical condition of the foetus was discovered’ (n. 5.7).

The Bill of Hearing states: ‘All foetuses have the same worth’ (n. 25.2). The Abortion Commission states that it does not want a ‘selection society’. Nonetheless statistical data show that selection is effectively taking place:

In 2022 abortion was carried out after the twelfth week of pregnancy in 77 percent of all pregnancies in which chromosomal aberration had been identified. In 2021 abortion was carried out in 61 percent of pregnancies in which chromosomal aberration had been identified. A corresponding development is seen in cases in which the foetus has Trisomy 21 (Downs Syndrome). In the case of pregnancies in which the foetus is diagnosed as having Downs Syndrome, the proportion of abortions rose from 54 percent of pregnancies in 2021 to 73 percent in 2022 (n. 14.13).

The Commission wishes to draw a line when it comes to permitting abortion in the case of ‘foetal conditions that are primarily of an aesthetic character’ (these are significantly defined as ‘conditions of appearance and gender’ in n. 25.3); at the same time it wishes the law to provide ‘broad access to abortion, also after the end of the eighteenth week of pregnancy’ if pregnancy ‘may create or accentuate social exposure for the family, woman, or possible child’ — an ‘exposure’ explained in terms highly imprecise (n. 25.2).

Once again the law proposal establishes ambiguity regarding the integrity of life, eliminating objective criteria by which to defend the right of the defenceless.

3. Conclusion. The law proposal’s purpose is to promote the welfare and security of women in a situation of vulnerability. We share this purpose.

But we do not see that this purpose is served by obnubilating, even gagging, elements that necessarily belong to a process of discernment concerning abortion. This tendency is evident in the law proposal. The law proposal cancels the foetus as a subject entitled to rights.

The consideration of abortion has, in the strict sense of this word, a tragic dimension. In every case an accomplished abortion is an occasion for grief, a loss to the community. Only on this basis, such is our conviction, can our society rightly consider the welfare of all parties concerned in a way that is responsible and rational.

We cannot see that the proposal for new legislation on abortion is an improvement of the current law from 1975. No, it establishes premisses for a development undermining fundamental values in Norwegian society.

It is unacceptable that focus on the welfare of the child no longer features as a determining factor of law. It is unacceptable that the state denies its purpose to ‘keep the number of interrupted pregnancies as low as possible’. This would happen if the current statement of purpose is dropped.

The proposal to extend the term of free abortion by six weeks contributes to an erosion of legislation’s chief task: to protect the integrity of individual persons on the basis of a principle of justice, also when the individual person is powerless, without an ability to speak for her or himself.

On these grounds we ask that the law proposal be rejected.

The eighteen week-old baby described in the cited illustrated passage from