We already have abortion on demand and it’s time the law made that clear

On Monday the Northern Ireland High Court yesterday ruled that the Province’s exceptionally strict abortion laws breached human rights law.

On Tuesday an attempt to tighten the liberal abortion laws in England and Wales was dismissed by the Administrative Court. The case arose out of a 2012 Telegraph investigation which had revealed that two doctors were apparently willing to arrange for an 8 week old foetus to be aborted simply because it was female. One of them, Dr S, was recorded saying “I don’t ask questions, if you want a termination, you want a termination.”

The evidence in the case was considered by the Director of Public Prosecutions (at that time Sir Keir Starmer QC) who decided that although there was just about a realistic prospect of conviction for “attempting to procure a miscarriage,” it was not in the public interest to prosecute either doctor.

A young campaigner, Aisling Hubert, tried to bring a private prosecution but the CPS stepped in, took the case over, and then stopped it.

Miss Hubert was hoping that the High Court will force the CPS to reconsider its decision not to prosecute.

The case raised important issues. Even some of those who take a generally liberal approach to abortion are uneasy about sex selective abortions. Some of Sir Keir’s reasoning was a little hard to follow. Despite that, his decision not to prosecute the doctors was correct and the judges have made the right decision in upholding it.

Whether we like it or not, the law effectively allows abortion on demand, and Miss Hubert was always doomed to lose the case.

The Abortion Act 1967 is often misunderstood. It did not repeal the nineteenth century offence of “procuring a miscarriage.” Instead it provided that anyone carrying out an abortion has a defence to the charge, if two doctors are of the opinion “formed in good faith” that one of four specified exceptions to the general rule that bans abortions.

The relevant exception in this case was:

(a) that the pregnancy has not exceeded its twenty-fourth week, and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman ….”

Wanting a baby of a different sex is not in itself an exception that permits an abortion.

On the face of things therefore, a doctor who agrees to carry out an abortion solely on the ground of foetal sex acts unlawfully; but matters are not so straightforward.

The doctor would also be acting unlawfully by aborting solely because the foetus was conceived after a rape, or because the mother was a 13 year old girl. Neither the rape nor the youth of the mother constitute grounds for abortion.

That does not mean that a woman is bound to carry her rapist’s baby, or that a girl must become a teenage mother. On the contrary, in such circumstances doctors can rely on their assessment that a continuance of the pregnancy involves a greater risk to the mother’s mental health than a termination. That doesn’t mean that they need to think that the woman will develop a mental illness if the pregnancy continues, merely that her mental health will be less at risk if an abortion is performed.

The reason why a woman wants an abortion is legally irrelevant. Even if the reason given by the mother seems trivial – perhaps she wants to go on holiday with a “beach body” – a doctor is not acting unlawfully by authorising an abortion.

Any abortion under 24 weeks is legal, irrespective of the reason that the mother gives, if two doctors agree that continuing the pregnancy carries a greater risk to the mother’s mental health than a termination.

The law does not even require the doctors to be right in their assessment. As long as they believe in good faith that the “mental health” ground is made out, the abortion is lawful.

And although the “mental health” exception is the one most commonly relied upon, the law also allows doctors to balance the physical risks of continuing with a pregnancy against those of an abortion. Since the physical risks of an early abortion are always less than the risks of pregnancy and childbirth, during the first trimester of pregnancy a doctor can always authorise an abortion on the grounds of risk to the woman’s physical health: the BMA has in fact issued guidance to precisely that effect.

Exrtract from The Law and Ethics of Abortion, BMA November 2014
extract from The Law and Ethics of Abortion, BMA November 2014

The net result is that the current law does implicitly allow abortion on demand, certainly at an early stage of pregnancy.

The woman in the Telegraph’s investigation was 8 weeks pregnant. The main criticism that can be levelled at the two doctors is that they did not ask sufficient questions to be able to form an opinion about the risk to her mental health “in good faith.”

Yet even if they had asked more questions, and whatever answers they received, they would still have been able to authorise the abortion on the grounds of risk to her physical health.

From a legal point of view no further questioning was necessary. The law does not, and nor should it, require the doctor to conduct a morality test to decide which reasons for wanting an abortion are acceptable and which are not. Even if doctors were equipped to make moral judgements of that sort, such a law would simply make pregnant women lie. Fortunately they do not need to do so.

Dr S was right: if you want a termination of an 8 week pregnancy the law allows you to have that termination. There is no need to ask any more questions.

There is a further reason why the CPS was right not to prosecute. Despite Sir Keir’s view that the evidence just about existed to prosecute for “attempting to procure a miscarriage” it is difficult to see how any such prosecution could possibly have succeeded. At most, all that the doctors did was make preparations for an abortion, and the law is quite clear; for the crime of “attempt” a defendant needs to carry out an act which is “more than merely preparatory to the commission of an offence.

Miss Hubert objects to our liberal abortion laws. A sizeable minority of people agree with her. But the way to deal with laws that you don’t like is not to try to force the CPS to prosecute dubious cases on flimsy evidence, it is to persuade Parliament to change the law. As it happens our abortion laws have been looked at repeatedly by Parliament since 1967, most recently last February when Fiona Bruce’s attempt explicitly to criminalise abortion on the grounds of sex selection was heavily defeated.

In fact the law should be changed, but not in the way that Miss Hubert wants. The existing law encourages hypocrisy by doctors who are encouraged to identify risks to mental health which may in fact be insignificant, and by patients who are encouraged to exaggerate those risks. Moreover, as we have seen in this case, the current law can lead to confusion and costly litigation.

The Abortion Act should therefore be amended to make it crystal clear that in the first trimester of pregnancy doctors may carry out abortion whenever, and for whatever reason, a woman requests it.

 

A slightly different version of this article appeared in the Daily Telegraph, 2nd December 2015

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

6 thoughts on “We already have abortion on demand and it’s time the law made that clear”

  1. Sex selective abortion is an absolute disgrace and we should be ashamed of it happening here or anywhere. The law is supposed to require a doctor to sign that the abortion is necessary, either for the welfare of the mother, or on account of a grave defect in the foetus. Since when was being female a grave defect?
    It is shameful that our Parliament refused to vote to outlaw sex-selective abortion and even more shameful that when a brave young woman, Aisling Hubert, brought a private prosecution against a doctor for this heinous practice, the Crown Prosecution used crooked tactics to obstruct it. The CPS stepped in, took over the case as a public prosecution and then closed it down.
    This is of course just one more example of how the UK CPS is a corrupt institution run by mafioso who are pushing an anti-social agenda. They cover up CSA, lose files, and protect the elite. I think they are despicable.
    Because of sex-selective abortion, women are now a minority across much of the world. Tens of millions of young women are missing in India, China and other countries following their example. To those who think this is “feminism” I would say, “Be careful what you wish for.”

  2. “The existing law encourages hypocrisy by doctors who are encouraged to identify risks to mental health which may in fact be insignificant, and by patients who are encouraged to exaggerate those risks.”

    Indeed.

    It may well be that abortion, or failure to abort, invites mental health risks, but essentially it is a moral choice.

    Just after the NI decision where a tearful litigant recounted how she was refused the abortion of a foetus that was bound to die when born because of brain malformation, we heard of a similar case, where the parents had decided to go ahead with the birth in the knowledge of death, and then gained solace from both the actuality of the few live hours of the infant and the successful transplant of organs.

    They made a choice that few would be prepared to take, but choose they did – even in these extreme and heartbreaking circumstances.

    Some people think the abortion choice equivalent to murder, others that it is a choice governed by moral rights.

    It may be that some of the latter are more comfortable framing it in ‘mental health’ terms so as to preclude personal moral responsibility.

    However if you view abortion as the voluntary destruction of a potential human being which is legal, then it is possible to both accept moral responsibility and feel not too bad about it, or simply assert that moral right.

    But I would think the government would be loathe so to act because it would incite an emotional response, not just from the antis, but from those who would claim women were being saddled with a moral choice when in fact it was a mental health necessity – in other words they would be victimised for being ‘victims’.

    Abortion is not an easy subject and some people appear to want it both ways – electing and then demanding ‘funeral rights’ . It is of course a choice most women would not wish to want to make – but moral clarity would at least preclude the more pernicious consequences of ‘self-victimisation.’

  3. You are insulting the “antis” by labelling an ethical choice as merely “emotional”.
    You refer to two cases of women who were told the foetus they were carrying was defective and “bound to die when born”. Well doctors have often been wrong about such defects.
    The first woman had a termination, which is not always an easy operation and does long-term damage to the body.
    The second woman went through the birth-process, and her body will recover faster and more succesfully because she let nature take its course. Now she and the father can look back with a clear conscience, something money can’t buy. It gets more important as you get older.
    That woman feels great that she hasn’t got the killing of any person on her conscience. That is truly a form of liberation.

  4. I did not mean to imply that the moral choice was ’emotional Claire – merely how the Government would react to a proposal to reform based on the de facto position as summarised by Matthew.

    As I made it clear, I agree with you that abortion is a moral choice. But the law does not recognise a foetus as a ‘person’ which is why abortion is legal and not subject to charges of murder and manslaughter.

    Some people may think my terming it as ‘the voluntary destruction of a potential human being’ is already going too far when they would prefer something akin to the excision of an unwanted body part. However I believe that does duck the actuality of the moral choice at issue.

    How people come to terms with this choice varies enormously, as do attitudes to reasons, and the age of the foetus. If conception is the determinant then the morning after pill would be granted a similar moral status – however most people think that in developmental terms an early pre-12 weeks abortion is more justifiable or less heinous that a late abortion when the potential human being has developed brain function and a nervous system.

    Matthew’s point though was that the law is hypocritical in it being a choice dictated by medical opinion as to maternal risk and harm, because there is never a situation where a continuation of pregnancy against a woman’s will could not be justified on these grounds.

    You may think sex selection is a repugnant reason for abortion and many would agree, but would you not also agree that, all things being equal, a woman might be mentally at risk by giving birth to a child whose sex she doesn’t want in the same way as she might because it might interfere with her career promotion?

    In both cases, the decision is made on the welfare of the expectant mother, not the potential child.

    As indicated, there are many moral complexities about abortion per se. These would remain if the law were changed – and in fact would be brought into a clearer focus of debate.

  5. The decision to have or not have an abortion is a democratic decision with only one qualified voter. And if that voter exercises her vote in a particular way because the foetus is female, well, that’s her choice. Nobody else’s business.

    And the sooner the law throughout the UK follows that obvious principle the better.

  6. As for CSA: a woman’s right to choose, as long as her motives are correct, eh?

    There’s something about watching Guardianistas scratching their arses on the horns of a dilemma, isn’t there?

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