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.
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