A dominant trend in the philosophical literature on abortion has been concerned with the question of whether the fetus has moral status and how such status might or might not conflict with the exercise of women's liberties. Schematically, an encompassing argument against abortion within this discussion would take the following form:

Different FSAs highlight various properties or interests in order to grant fetuses this moral status: for instance, having human genotype (Reference GrisezGrisez 1970; Reference George and TollefsenGeorge and Tollefsen 2008), initial brain activity (Reference Morowitz and TerfilMorowitz and Terfil 1992; Reference Burguess and TawiaBurguess and Tawia 1996), intrinsic human capacities or functionings (Reference DiSilvestroDiSilvestro 2010), a fair chance to defend their lives against possible threats (Reference DavisDavis 1984), an open future like ours (Reference MarquisMarquis 1989), and the potentiality to become a person (Reference DonaganDonagan 1977; Reference WilkinsWilkins 1993).

In turn, several rejoinders have been made against FSAs: for instance, that the attribution of moral status should not depend on the instantiation of one or two important human properties but on many (Reference WarrenWarren 2000), that it is impossible to prove that the fetus has an interest in its own continued existence (Reference Tooley and FeinbergTooley 1984), that it is inaccurate to measure the value of an entity based on the kind of object that it will become (Reference BooninBoonin 2003), that there is a logical error in arguing that fetuses are subjects with rights in virtue of being potential persons (Reference Feinberg and FeinbergFeinberg 1984), and that even if fetuses have some sort of moral status, women's liberty trumps it when pregnancy is very costly or is the product of rape (Reference ThomsonThomson 1971; Reference KammKamm 1992).

As we have said, FSAs have gained quite a lot of theoretical attention in the philosophical literature. This article does not seek to expand on the analyses found there. Instead, our goal is to present and reply to another and more recent argument against abortion based on paternalistic premises.

In the literature on paternalism, it is usually said that an action or policy is paternalistic if it represents an interference that, without previous consent, limits the agent's range of options on the grounds that this interference is in her best interest (see Reference DworkinDworkin 1972; Reference FeinbergFeinberg 1986; Reference Husak and LaFolletteHusak 2003; Reference Sunstein and ThalerSunstein and Thaler 2008; Reference De MarneffeDe Marneffe 2006 for equivalent formulations). Schematically again, an encompassing argument against abortion based on these paternalistic lines might take the following form:

Many versions of PA are present in the literature, in public discourse, and behind new laws regulating or prohibiting abortion in democratic societies, thus it is important to analyze it thoroughly as well as to highlight its possible weaknesses. Note that part of PA's novelty comes from the fact that its claim is independent of which side is right in the debate on the fetus's moral status. That is, if PA is correct, abortion is still wrong regardless of whether the fetus has full moral personality (or moral status on other grounds).

In the following sections we undertake three tasks. First, we present four different and paradigmatic PAs: what we call the Kantian PA, the Aristotelian PA, the Catholic Church PA, and the Psychological PA. These four arguments agree on the idea that women harm themselves when they choose to have an abortion and refrain from being mothers, but they differ on the nature of such harm.

Second, we show how some public policies that regulate abortion around the world (including in Germany, the Netherlands, Belgium, Spain, the Czech Republic, Russia, Slovakia, Macedonia, and jurisdictions in the United States) are now in fact following paternalistic justifications and imposing distinctive paternalistic restrictions: hard, soft, or libertarian. We call these “the new abortion laws.” These laws are highly influenced by the Psychological PA, and they usually subscribe (explicitly or implicitly) to the claim that women who abort invariably find themselves in a bad deliberative position, whether due to manipulation, moral confusion, economic stress, or social pressure. As we will see, according to the justification for these laws, it is never the case that a woman who seriously considers aborting is prepared to make that decision on her own.

Finally, we argue that both the four PAs and the new abortion laws suffer from four insurmountable problems. First, and despite their rhetoric, it is not clear that many PA proponents are genuinely concerned about protecting women's motherhood. Second, the very idea that motherhood is constitutive of women's well‐being is comprehensive in nature and thus unsuited for guiding public policy. Third, there is no solid empirical evidence showing that women who deprive themselves of such an end do in fact harm their psychology.Footnote ² Finally, even if women were harming themselves in such a way, it is not clear that this harm would justify coercive state intervention in order to prevent it.

We do not deny that motherhood is certainly central to many women's lives. In this sense, perhaps the most important lesson of this work is that public efforts should concentrate exclusively on helping women to successfully achieve such a goal only once it has been voluntarily adopted.Footnote ³

I. Four Paternalistic Arguments

All PAs hold that abortion hinders a putative constitutive end of women's well‐being—that is, motherhood—from being realized. But they differ in their explanation of why leaving this end unfulfilled is harmful to women. In this section we will present four different paradigmatic examples. We call them, respectively, the Kantian PA, the Aristotelian PA, the Catholic Church PA, and the Psychological PA.

Let's start with the Kantian PA as put forward by Lara Denis. In early sections of her article, Denis rejects the possibility of a Kantian‐inspired FSA, since fetuses should not be viewed as free and rational beings, or as ends in themselves (see Reference DenisDenis 2008, 126). However, according to her, there may still be Kantian reasons against abortion. Denis offers an argument developed on premises extracted from the Kantian doctrine of duties to oneself (see Reference Kant and GregorKant 2006, 6:415–74). In this approach, women, like all human agents, have a duty to themselves to promote the moral sentiments of kindness, love, and sympathy toward others. Pregnancy offers a particularly good opportunity to develop these proto‐moral sentiments in a unique way. This is because the object receiving and nurturing such feelings is a woman's own offspring. Accordingly, since pregnancy enables women to promote these emotions toward their fetuses, abortion harms them—in impeding them from discharging a duty to themselves. Denis writes:

As these passages show, the argument stresses the putative moral damage that a woman inflicts on herself by interrupting her pregnancy. Indeed, Denis attaches a particular character to the opportunity provided by pregnancy in developing the moral sentiments that preoccupy Kant. Two things must be said in this regard. First, Denis assumes that, so long as pregnancy establishes the possibility of motherhood, and thus awakens a widespread “maternal protective drive” (130), the moral sentiments that are impeded by the interruption of pregnancy are those of motherhood—or, in Kantian fashion, kindness, sympathy, and love as felt toward offspring. Second, it is also important to note that protecting pregnancies for this reason (the fact that they foster proto‐moral sentiments associated with motherhood) does not require the fetus to be a person (a claim that, as we know, Denis denies), for the fetus triggers such feelings by virtue of the fact that it will eventually become a child.Footnote ⁴

Now consider the Aristotelian PA as paradigmatically put forward by Rosalind Hursthouse. We call this argument “Aristotelian” because, according to Hursthouse, it is a means of implementing the primary tools of virtue ethics as opposed to those of deontology or consequentialism. As is well known, virtue ethics is concerned with living a good or flourishing life. Hursthouse states:

This passage states that opting for an abortion may directly affect women's capacity to live a flourishing life. A detailed analysis of Hursthouse's article shows at least three ways in which abortion reveals and provokes moral failure. First, as we have seen, it directly impedes the fulfillment of a constitutive end of women's well‐being. Second, by pondering whether to abort, women may also exhibit previous vices in character, for a “virtuous woman” exercises character traits that make her avoid sexual practices that might lead to procreation when she is not willing to embrace such an outcome (243). And third, an abortion might reflect a mistaken deliberation over the correct balance of ends and pursuits within one's life (243).

Now consider the Catholic Church PA. Interestingly, the Catholic Church's opposition to abortion was not based until very recently on a Christian‐inspired FSA (that is, on the idea that ensoulment, animation, or hominization occurs at conception and thus an abortion is an instance of murder) but rather on paternalistic grounds (that is, on the idea that to allow abortion is to condone wrong practices of female sexuality that harm women; see Reference Noonan and NoonanNoonan 1977; Reference HurstHurst 1983; Reference HollandHolland 2006). Consider what Jane Hurst states with regard to Saint Augustine's ideas on abortion, which, in turn, expressed the Catholic Church position of the time:

This view, according to which the harm produced by abortion is related to a sexual sin rather than to the murder of an ensouled being, persisted in different forms within the Catholic Church until very recent times. Hurst also points out that, according to some important medieval penances within the Catholic Church in England and Ireland, the required punishment for interrupting pregnancy depended not only on whether the fetus could be regarded as an ensouled being, which was assumed to occur forty days after conception, but also as to whether “the poor woman does it on account of the difficulty of supporting the child or a harlot for the sake of concealing her wickedness” (17). Again, only in the second case was penitence required. In short, the Catholic Church PA states that abortion harms women insofar as it indicates a previous incorrect sexual practice: that is, one that may have occurred outside marriage and certainly one that does not invite procreation. This argument views abortion as a sexual sin, detrimental to women's moral integrity, on a par with contraception, fornication, adultery, and prostitution.

Finally, consider the now prominent Psychological PA. Unlike the previous PAs, this argument is empirical in nature: It offers reasons that do not depend on a particular moral philosophy such as Kant's doctrine of duties to oneself, Aristotle's views on the importance of living a flourishing life, or on religious notions of correct sexual practices. Rather, it points to the putative consequences that abortion brings to bear on women's psychological well‐being. According to this argument, empirical evidence supports the claim that most women who undergo an abortion fail to achieve a healthy psychological adjustment afterwards. Consider what the Report of the South Dakota Task Force to Study Abortion (a document now frequently quoted both in US courts and in legal literature) states on the nature of such damages:

Similarly, when analyzing the shift in the rhetoric within the US Supreme Court argumentation regarding abortion over the past thirty years, Jeannie Suk specifically states:

The stated paternalistic shift in argumentation is now quite prominent within anti‐abortion circles and formal legal argumentation (see Reference ReardonReardon 1987; RSDTF 2005; Reference IveyIvey 2008; Reference SiegelSiegel 2008; Reference SukSuk 2010). All of the arguments analyzed by this literature defend the same conclusion—that aborting has pervasive negative psychological consequences for women—and have even revitalized the idea of the existence of the so‐called “Abortion Trauma Syndrome” (see Reference ReardonReardon 1987). Accordingly, in line with the Kantian PA, the Aristotelian PA, and the Catholic Church PA, the Psychological PA holds that women harm themselves when they decide to have an abortion.

II. Different Paternalisms, Different Abortion Policies

In the previous section we established PA's general form and presented four concrete examples. In this section we will consider different ways in which paternalistic anti‐abortion policies might be implemented when justified by versions of PA.

As we said in the introduction, it is usually assumed that an action or policy is paternalistic if it represents an interference that, without previous consent, limits the agent's range of options by arguing that this interference is in her best interest. Accordingly, an action or policy is defined as paternalistic by the reasons given to justify it. In other words, only if these reasons appeal to the agent's well‐being or best interest as a means for warranting the restriction of her options can we say that such an action or policy is paternalistic. Thus, the very same limitation on a person's liberty might count as paternalistic or not depending on its justification or motivation (Reference Husak and MarmorHusak 2012, 468).

It is also common practice to distinguish among three forms of paternalist restrictions: hard, soft, and libertarian. Hard paternalism includes all actions and policies that in fact reduce the range of the agent's options by arguing that such a limitation is for her own good (see Reference FeinbergFeinberg 1986). Contrarily, soft paternalism restrains the agent's range of options only until she has acquired the relevant information on the consequences of the stated course of action (see Reference FeinbergFeinberg 1986). The idea is that this temporal restriction of liberty will make the agent's action more informed and therefore more voluntary (as voluntary action, according to Reference FeinbergFeinberg 1986, 12, is a matter of degree). Finally, libertarian paternalism holds that the state should make the best alternatives more attractive and accessible without thereby prohibiting access to worse options (see Reference Sunstein and ThalerSunstein and Thaler 2008). For instance, by making healthy options more obtainable in cafeterias and unhealthy ones less so, or by automatically subscribing workers to pension schemes that earmark money for retirement—forcing workers to make a conscious effort to opt out of such schemes, if they want to. As is well known, the idea behind this view is that agents need just a little nudge to choose or stay on the best course of action for themselves.Footnote ⁵

Finally, it is also important to note that most of these polices seek to protect citizens’ physical and psychological health. However, other paternalistic policies may depend on a broader conception of well‐being and what it means to live a good life. This connects paternalistic policies with what is known in a related literature as “perfectionism” (see Reference RazRaz 1986, 422–29; Reference QuongQuong 2011, 73–107), a term that refers to the perfection or excellence that a human life might achieve and the state's importance in helping citizens to this end. Thus, if perfectionism is taken as an instance of paternalism, we can also classify paternalistic policies depending on the interests they want to protect: those trying to protect physical and psychological health, and those trying to protect the interests of a broader valuable life project.

When it comes to abortion, we can identify policies that are justified and that promote restrictions along this full paternalistic spectrum. A hard paternalistic abortion policy states that, since abortion hurts women, it should be forbidden tout court. A soft paternalistic abortion policy holds that, since abortion hurts women, it should be forbidden until sufficient information on the good of motherhood is provided. Finally, a libertarian paternalistic abortion policy holds that, since abortion hurts women, access to abortion clinics should have a cost for them. We will now provide some examples of each of these policies as adopted in different democratic societies.

Example of a Hard‐Paternalistic Policy

Consider the failed legal attempt made in 2014 by the current conservative government in Spain to change the Organic Law 2/2010 on Sexual and Reproductive Health and Voluntary Interruption of Pregnancy—a law that allows women to interrupt their pregnancies voluntarily without specifying further reasons or circumstances (Ley Orgánica 2/2010 2010). The legal attempt in question sought to severely restrict women's freedom to opt for interrupting their pregnancies. The proposed law held that a woman would be able to legally access abortion services only if she were experiencing health complications due to her pregnancy, or her pregnancy were the product of rape, or there were proven fetal malformations. If one of these three motives was certified by a physician, a woman wanting to interrupt her pregnancy was then required to endure a long process that included exposure to information about the good of motherhood by a health provider—in a different clinic from the one in which the abortion procedure would have taken place. Finally, the decision to continue with the procedure was ultimately placed in the hands of a judge—who had the power to request the opinion of the woman's partner or parents before making his decision (see Anteproyecto de ley 2013).

This was the long and hard judicial path that could lead to an abortion as proposed by the failed Spanish law. Nevertheless, most women would have been simply forbidden to access abortion services, since their reasons wouldn't have corresponded to any of the three legal motives in the first place. We identify this policy as an instance of hard paternalism because of its justification: the public defense of the law was based entirely on the claim that women have a “right to maternity” (see Reference GareaGarea 2012; Reference SanzSanz 2012). Strangely, the Minister of Justice who promoted the law thought that, by forbidding abortion in the vast majority of cases, such a right would be protected—without noticing that, by imposing this restrictive policy, the putative “right to maternity” looked more like an obligation than a right. In any case, the fact that the public justification for the stated law was founded wholly not on a FSA but on the importance of maternity for women—that is, on the idea that refraining from being a mother is a tragedy produced by “society's structural violence against women” (see Reference GareaGarea 2012), and that the “liberty of maternity is what makes women authentically women” (see Reference SanzSanz 2012)—makes this policy an instance of hard paternalism on abortion.

Examples of Soft Paternalistic Policies

The US Supreme Court resolution to impose a period of time before allowing women to carry out an abortion (Planned Parenthood v. Casey 1992) is a quintessential example of a soft paternalistic policy. This judicial decision imposes the so‐called concept of “women's informed consent.” Consider what Linda McClain states when criticizing such an imposition:

As McClain critically reports, the time frame imposed by the informed consent policy on access to abortion services is entirely justified by the idea that such conditions will enhance women's agency. Just as in John Stuart Mill's famous example of the bridge (in which a temporal limitation of a person's liberty to cross a bridge is justified because her decision to cross is enhanced by knowing that the bridge is unsafe) (Reference Mill and ColliniMill 2010, 96), a woman's decision on whether to abort is supposed to be improved with the establishment of waiting periods in which she can reflect on the risks entailed by her options.

Interestingly, as illustrated in a comparative document recently issued by the Center for Reproductive Rights (CRR 2015), this reasoning also underlies the waiting periods and mandatory counseling imposed by the laws of other jurisdictions in which abortion is legal: for example, in Germany (three‐day waiting period and mandatory counseling), the Netherlands (six‐day waiting period), Belgium (six‐day waiting period), Spain (three‐day waiting period and mandatory counseling), Hungary (double mandatory counseling), the Czech Republic (mandatory counseling), Slovakia (two‐day waiting period and mandatory counseling), Russia (two‐ or seven‐day waiting period, depending on the stage of pregnancy, and mandatory counseling), and Macedonia (three‐day waiting period and mandatory counseling).

Of all these laws, it is particularly salient that Russia's law directly requires the counselor to “awaken [the woman's] maternal feelings” (CRR 2015, 4). Likewise, the Macedonian law requires the counselor to mention “‘the possible harm’ abortion can cause to women's health, including their psychological health, and the ‘possible advantages’ of continuing a pregnancy” (4). Similar notions are stated expressly in the Slovakian and Spanish laws (see CRR 2015, 4; Ley Orgánica 2/2010 2010, Art. 17, 4).

Examples of Libertarian Paternalistic Policies

In 2015, according to Americans United for Life (a private pro‐life organization), 300 regulations were proposed “on behalf of women” in forty‐five states in the US, making abortions harder to get:

One of the best examples of the increasing costs and difficulties in accessing abortion procedures as mandated by this set of policies is expressed by what might happen in Texas:

Known as HB2, this Texas law is supposed to protect women's health by putatively strengthening the health and safety standards of abortion clinics. However, it is grounded in strong libertarian paternalistic reasoning, for it tries to make the “wrong option” hard to reach for most Texas women without legally prohibiting it. This intention was expressed in a public declaration made by Rick Perry, then‐governor of Texas: “An ideal world is one without abortion; until then, we will continue to pass laws to ensure that they are rare as possible” (CRR 2016).

All of these examples show how different paternalistic justifications and restrictions are now influencing abortion‐related public policy in different democratic societies. Behind these policies, which we will loosely call “the new abortion laws,” there is a clear rhetorical shift that recreates a “woman's protective discourse” and a “woman's health discourse” (see Reference IveyIvey 2008, 1481). These discourses depict abortion not as a valuable choice enhancing women's liberties but rather as a misguided choice resulting from perverse manipulation—whether exerted by physicians, family members, or the very “culture of death” of contemporary societies. Women are portrayed as occupying a position of extreme social vulnerability, and this position is to explain why they are not able to make what in every case represents the correct decision: not to abort.

III. Responding to the Paternalistic Argument

In this section we will present the reasons why the stated PAs, as well as the PA‐driven reasoning behind the new abortion laws, are flawed. As we have seen, the idea at the heart of all PAs is that, since motherhood is a constitutive end of women's well‐being, women hurt themselves when they decide to abort and thus don't become mothers. As we mentioned in the introduction, there are at least four serious problems with this idea.

The first problem is that it is not clear that many PA proponents are genuinely concerned with the protection of women's motherhood. A first bit of evidence supporting this assertion is that PA proponents are usually against abortion but not against putting up the born child for adoption. In fact, they usually promote the option of putting the child up for adoption as a reason not to abort. This was the case, for instance, in the failed law proposed by the Ministry of Justice in Spain: If a woman satisfied one of the three motives that made her eligible for an abortion procedure, the mandatory information that she would have received was to include a statement that she could instead put the child up for adoption (see Anteproyecto de ley 2013, art. 4). This very fact casts serious doubt on the notion that this and similar laws are honestly invested in the protection of motherhood. At most, their real concern, upheld as a constitutive end of women's well‐being, is the end of gestation and of bringing children into the world—regardless of whether women will be able to carry these children to term appropriately (see Reference Kollar and LoiKollar and Loi 2015), rear them adequately, or even rear them at all. However, such an end is clearly narrow in relation to all those ends that women recognize as valuable in their own lives (see Reference GinsburgGinsburg 1989, 143–72; Reference LittleLittle 1999). It is also an extremely bizarre conception of the nature of motherhood. In short, bringing children into the world is a poor proposal for something that is supposed to be considered a constitutive end of well‐being.

Furthermore, if PA proponents really believed that motherhood is a necessary end of women's flourishing, they would also favor policies encouraging infertile women to adopt children, and fertile women to have children even if they have not yet done so, with at least the same enthusiasm that they show in supporting policies that forbid abortion. That is, their opposition to abortion would be just one part of a larger policy concerned with promoting motherhood in women's lives. However, consider again the Minister of Justice's law in Spain: Despite its supposed commitment to the dubious claim that “the liberty of maternity is what makes women authentically women,” nothing was legislated on the importance of encouraging all women to exercise this liberty and thus become “authentic women.”

For these two reasons—that is, that PA proponents promote the recourse to adoption as a reason not to abort and that they do not encourage maternity among infertile and childless women—it is not clear that they have a real concern for women's motherhood or for the exercise of maternity rights. Rather, the use of this rhetoric seems to be nothing more than a new political strategy for advancing an old public anti‐abortion agenda.

So let us shift to the second of PA's problems: that even if it is granted that PA proponents are truly concerned with women's motherhood (that is, that they really believe that childrearing is constitutive of women's well‐being), such concern is controversial in nature, for democratic societies are the home of many different views on the elements that constitute the best human life. As Travis Rieder holds, although some people think that having biological children is a project that might be a necessary component of such a life, some people do not (Reference RiederRieder 2015, 301–303). It is certainly the case that many women do not see maternity as necessarily tied to their own flourishing (see Reference McTernanMcTernan 2015, 232–36). Considering this variety of views regarding the value of motherhood, liberal democratic states should refrain from coercively imposing one view to the detriment of others. A democratic state might allow (see Reference RawlsRawls 2005)—or even promote (see Reference RazRaz 1986, 369–430)—certain ways of living based on comprehensive or perfectionist views about what is valuable in life; however, it cannot restrict valuable options. And, surely, adopting a way of life that is incompatible with childrearing (for instance, a time‐consuming job) is one such option for women—just as it is for men.

This second problem directly challenges the Kantian PA, the Aristotelian PA, and the Catholic Church PA, for all of these arguments are based on what Rawls calls comprehensive doctrines (Reference RawlsRawls 2005). Given the lack of space, we cannot expand on what we consider the many internal flaws of each argument. However, from a liberal and democratic point of view, the main problem of the three PAs is that they are committed either to a sectarian doctrine of women's duties to themselves or to a specific philosophical view of what constitutes a flourishing life. As we have seen, the Kantian PA stresses the importance of developing the proto‐moral emotions associated with motherhood, the Aristotelian PA points to the role of motherhood in achieving a flourishing life, and the Catholic Church PA stresses the significance of living a moral life without sexual sin. Nonetheless, these three views are foreign to the values articulated in the public reason of liberal democracies (see Reference Gutmann and ThompsonGutmann and Thompson 2004; Reference RawlsRawls 2005; Reference QuongQuong 2011) and therefore must be excluded from the justification of public policy within these societies. Because of this, PAs based on comprehensive ideas of motherhood are always inadequate justifications in debates regarding abortion policies.Footnote ⁶

So let us shift to the third of PA's problems: that is, that there is no solid empirical evidence showing that avoiding motherhood harms women's psychology. This calls directly into question the Psychological PA, for even though this reasoning is not comprehensive in nature, its empirical credentials are highly disputed.

As McClain holds, despite the resources deployed in trying to show that abortion has intrinsic negative effects on women's psychological well‐being, no one single rigorous study has been able to prove it (Reference McClainMcClain 2006, 239). To begin with, it is very important to note how proponents of the Psychological PA tend to exaggerate both the scale of the putative negative effects of abortion on each individual woman, and how widespread these effects are across all women who have had an abortion. Consider what Randy Alcorn, a high profile anti‐abortion activist, states in this regard:

Notice how grave and pervasive the psychological effects of abortion are portrayed to be—abortion is even viewed as the cause of personality fragmentation. These putative effects go well beyond the original statement made by David Reardon on the “abortion trauma syndrome” (Reference ReardonReardon 1987). However, like Reardon's statement, these further instances of the Psychological PA simply lack a serious empirical foundation; they merely reproduce a baseless and incendiary rhetoric of harm, for the psychological studies that are supposed to support them are now highly discredited in the psychological literature. As Gail Robinson and her colleagues have decisively argued, the problems with these studies

Robinson details at least five gross and pervasive problems in the studies on which most literature defending the Psychological PA is based. The first four problems might fuel the typical qualitative and quantitative exaggerations found in such literature. Due to lack of space, here we will only briefly expand on the fifth problem: the misattribution of abortion's causal effects on women's health.

No study thus far has discarded other and more plausible hypotheses that best explain the psychological maladjustments that some women indeed experience after having an abortion. One such hypothesis is stated by David Fergusson, John Horwood, and Elizabeth Ridder, who claim that “it could be proposed that our results reflect the effects of unwanted pregnancy on mental health rather than the effect of abortion per se on mental health” (Reference Fergusson, John Horwood and RidderFergusson, Horwood, and Ridder 2006, 22). A further hypothesis (Reference Robinsonsee Robinson et al. 2009; Reference Dadlez and AndrewsDadlez and Andrews 2010, 451) points to the existence of previous psychological problems affecting women:

Yet another hypothesis emphasizes the stressful conditions that women must endure before being able to exercise their legal right to abort. The increasing financial, social, geographical, and institutional barriers confronted by women are variables that can have a significant impact on their psychology (Reference Fergusson, John Horwood and RidderFergusson, Horwood, and Ridder 2006, 22; Reference RobinsonRobinson et al. 2009, 271).

Finally, as Marcia Ellison (Reference EllisonEllison 2003) and Anuradha Kumar have persuasively argued, the cause of the psychological maladjustments that some women suffer when facing abortion‐related decisions may well result from an “abortion stigma” placed on those who choose to abort, a stigma that labels them as “promiscuous, sinful, selfish, dirty, irresponsible, heartless or murderous” (Reference Kumar, Hessini and MitchellKumar, Hessini, and Mitchell 2009, 629). As such, negative emotional consequences following an abortion may well originate in its strong social condemnation—which, in fact, this paternalistic trend of argumentation directly promotes.

In sum, there are at least four possible explanations why some women may suffer psychological problems after an abortion: the very fact of facing an unwanted pregnancy; previously deficient psychological health; the social stigma associated with having aborted; and the increased financial, social, geographical, and institutional complications entailed by seeking an abortion. To date, no single study has rooted out these further hypotheses.

The fact that there is no solid empirical evidence to support the existence of intrinsic damage provoked by the voluntary interruption of pregnancy is a strong reason against soft paternalistic abortion policies—such as the US Supreme Court's “informed consent” policy, as well as the waiting periods and mandatory counseling requirements stipulated by the European laws reviewed in the previous section. Remember that in Mill's example of the bridge (perhaps the paradigmatic example of a justified soft paternalistic intervention in personal liberty), it is established that there is sufficient evidence showing that crossing the bridge is unsafe (Reference Mill and ColliniMill 2010, 96–97). If this were not the case, preventing the person from crossing would simply be unjustified. Analogously, since evidence on the harms of abortion is unsound, the temporal limitation of women's right to abort on a soft paternalistic basis is unjustified.

The very same must be said about the libertarian paternalistic policies reviewed in the previous section. As we have seen, this set of laws would make access to abortion services extremely difficult for thousands of women in the US. However, since no reliable evidence establishes that abortion is a bad option to take, there is no justification for making it the hardest option to attain. Furthermore, as Cass Sunstein and Richard Thaler hold, a libertarian paternalistic policy will always allow “low‐cost opt‐out rights” (Reference Sunstein and ThalerSunstein and Thaler 2008, 237). That is, a person can always and easily choose the “bad option” if she wants. In contrast, having to travel long distances to the nearest abortion facility cannot count as offering a low‐cost opt‐out right. Accordingly, considering both that evidence does not show that abortion is a “bad option” and that easy access to such an option is not guaranteed, these policies are not proper and justified instances of libertarian‐paternalism—in spite of what some of their proponents maintain.Footnote ⁷

Finally, there is the fourth of PA's problems: that is, even if it were the case that the prevention of motherhood caused psychological distress in women, this would not be sufficient reason to allow the coercive use of state power to prevent such a harm. For a person might pursue any number of actions that put her in psychological distress, and many ways of living have serious drawbacks. Think of maternity itself. Pregnancy certainly involves some health risks, and childrearing might have an unexpected impact on women's life plans. Does this mean that the state should require women to receive mandatory counseling on these risks and impose a compulsory waiting period before allowing them to continue their pregnancies? Well, it seems that the answer is an unequivocal no. It is assumed that women, having received exclusively health‐related information, are prepared to make the decision that is best for them on their own. The decision to abort is strictly analogous, so far as paternalistic worries are concerned; the default assumption must also be that, after receiving exclusively accurate health‐related information regarding abortion, women are prepared to make the decision that is best for them on their own.

We can thus conclude that, despite its innovative force, the entire paternalistic trend on the topic of abortion is severely problematic. First, it is not clear that many PA proponents are genuinely concerned with the protection of women's motherhood. Second, the very idea that motherhood is constitutive of women's well‐being is comprehensive in nature and thus inadequate to justify public policies within pluralistic democratic societies. Third, there is no solid empirical evidence showing that women who deprive themselves of such an end do in fact harm their own psychology. Fourth and finally, even if women were indeed harming themselves in such a way, this would not justify coercive state intervention in order to prevent it.