Whether it
is the moral status of a foetus in which writers such as John Finnis[2]
believes that life begins at conception, a view highly criticised by other
writers such as Mary Ann Warren[3]
who believes a foetus does not fall under the definition of a person. Or
whether it is the right of the woman to determine what happens to her own body.
The preposterous assertion, according to Judith Thomson[4]
that the right to life of the foetus outweighs the right of the woman to decide
what happens to her body. Or the act of abortion, a callous act of someone
light minded, writes Rosalind Hurthouse[5].
The fact is,
any legal discussions raised with regard to abortion will always be subject to
the background noise of the ethical arguments. The question is purely whether
the Abortion Act [6]
itself is being utilised by the medical profession for the purposes it was
intended.
Does a woman
have the right to decide whether or not she should have a termination? In Paton
v British Pregnancy Advisory Service Trustees[7],
the court held that it is for doctors to decide, and according to Sir George
Baker in this case, the great social responsibility is placed by the law onto
the shoulders of the medical profession.
The Abortion
Act, according to Lord Justice Scarman in R v Smith[8],
does not depart from the basic principle of the commons law which he states is
dependent upon the opinion of the doctor. The Abortion Act does not allow for
abortion on demand.
The Offences
Against the Person Act 1861 still governs abortion today. Section 58 creates an
offence in which every woman with child, by unlawfully administering to herself
any poison or noxious thing or the use of any instrument with the intention to
procure miscarriage could face life imprisonment. The Abortion Act 1967 however
creates a defence to section 58 in which there will be no liability where a
pregnancy is terminated by a member of the medical profession in good faith.
The
ambiguity under section 1 of the Abortion Act appears to suggest that the
defence only exists ‘when a pregnancy is terminated.’ So what if a woman has
had an unsuccessful termination? If we apply the literal rule, the woman would
be liable under section 58 and the doctor liable under section 59.
The House of
Lords, however, in Royal College of Nursing v Department of Health [1981][9]
held that there would be no liability under section 58, and Lord Edmund-Davies
went on to state that doctors and nurses could in such cases be convicted of
what in essence, would be the extraordinary crime of attempting to carry out a
lawful act.
This is an
example of the protection afforded to the medical profession by the courts and
the reluctance of the judiciary to find doctors liable. Or maybe it is an example of the judiciary upholding the notion of the independence and professionalism of the medical profession to act in accordance with the law.
Abortions
may only be granted under the Abortion Act if the reasoning falls under one of
the medical grounds of the Act. According
to statistics from the Department of Health[10],
nearly 200,000 women had an abortion in 2011 with a third of women having had
an abortion previous to that. The most common ground was found to be under
section 1(a) which states that the continuance of the pregnancy would involve
risk much greater than if the pregnancy is terminated due to the physical or
mental health of the pregnant woman.
Anne Furedi,
the Chief executive of the British Pregnancy Advisory Service told a BBC
Panorama investigation entitled ‘the great abortion divide’[11]
which was aired on the 4th February 2013, said that women have to
pretend to suffer from a nervous breakdown and doctors have to pretend to
believe them. A view opposed by Dr. Clare Gerada of the Royal College of
General Practitioners who said to the same programme that this is a realistic
interpretation of the law and that doctors have to believe women and not judge
them.
The courts
do not seem to share the view of Dr Gerada, in the case of R v Smith [1974][12]
1 ALL ER 376, the only successful prosecution since the introduction of the
Act, the Court of Appeal found that the doctor had not acted in good faith due
to the fact he had not made inquiries into the personal circumstances of the
woman, so the notion that a doctor should not judge is wrong, there should be a
rigorous assessment of the mental health of women under the grounds provided
under section 1 of the Act. According to Sally Sheldon, the power given to
doctors here far exceeds that which would accrue merely on the basis of a
technical expertise. Recent research carried out by the Royal College of
Psychiatrists in 2011 found there to be no real evidence that the risk to the
mental health of a woman is minimalized by having an abortion, they state in
their report on page 118[13]
that for those who have an abortion, rates of
psychiatric contact after an abortion are no greater than before the abortion.
Is this to say that where women seek termination, the doctors will take at face
value their claim of possible mental problems? Supporting the claim made by Ann Furedi? The Christian Medical
Fellowship[14],
claim there is a clear difference between being upset at the thought of having
a child and grave mental health issues.
Is the
Abortion Act 1967 being interpreted by doctors too liberally? The extents to
which the courts shall be reluctant to regulate the medical profession to the
point where they are interfering in profession decisions afford the medical
profession a lot of discretion under the law to decide when a termination is
appropriate. The patient wants a termination and the doctor does not wish to be
prosecuted, so therefore there is nobody to challenge the termination on the
grounds that it does not fall under any subsection of section 1 of the abortion
act. On the other hand, politicians and judges may not understand the pressures that doctors and nurses face, hence it is necessary for a broad peice of legislation in the form of the Abortion Act, to be interpreted liberally in order to give some doctors some room to ease the pressure when faced with such situations.
In the
United Kingdom, the legal stance on abortion is a divisive one. In Northern
Ireland, the Abortion Act 1967 does not apply and women are not legally able to
have an abortion even if they have been a victim of rape. A circumstance in
which even the English courts prior to the Abortion Act in R v Bourne,
recognised would be a possible ground to terminate a pregnancy. Macnaugten J
stated that if the doctor is of a reasonable opinion supported by his adequate
knowledge, then the jury may find he acted in good faith.
Under s.25 (1)
of the Criminal Justice Act (Northern Ireland) 1945, the language is stronger,
where the offence involves ‘intention to destroy life’ and there is reluctance
to modernise the law of abortion within Northern Ireland, speaking to the
Northern Ireland assembly on the 15th October 2012, the Northern
Ireland Health Minister, Edwin Poots MLA stated pro-choice is a term which
means no choice for thousands of children and I will always resist the 1967
Abortion Act coming to Northern Ireland’.
With one country operating two very different abortion laws, how can we
ever expect to prevent the dangerous backstreet abortions and in some cases,
the unnecessary suffering of women which the Lord Chief Justice in R v Scrimaglia[15] said
the 1967 Act was there to prevent. The last time parliament discussed this in
2008, they debated a motion of whether the limit should be held at 24 weeks,
and maybe now, it is time for Parliament to reconsider the operation of
abortion laws again.
[1] Jackson,
Emily ‘Medical Law Texts, Cases and Materials (2nd edition, Oxford
2010) Page 655
[2] Finnis, John ‘The Rights and Wrongs of Abortion: A
reply to Judith Thomson’ (1973) 2 Philosophy and Public Affairs, 117-145.
[3] Warren, Mary
Ann, ‘On the Moral and Legal Status of Abortion’ (1973) 1 the Monist 43-61
[4] Thomson, Judith Jarvis – ‘A defence of Abortion’ (1971)
1 Philosophy and Public Affairs 47
[6] The Abortion Act 1967
[7] [1979] QB 276 (Sir George Baker)
[8] [1974] 1 ALL ER 376
[9] [1981] AC 800 (Lord Edmund Davies)
[10] Department
of Health- Abortion Statistics in England and Wales 2011. (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/127785/Commentary1.pdf.pdf)
[11] BBC
Panorama: the Great Abortion Divide (http://www.bbc.co.uk/iplayer/episode/b01qm34r/Panorama_The_Great_Abortion_Divide/ )
(Aired 4th February 2013)
[12] [1974] 1 ALL ER 376
[13] Royal
College of Psychiatrists- Induced
Abortion and mental health. A systematic review into the mental health outcomes
of induced abortion, including their prevalence and associated factors.
December 2011 (page 118)
[14] Christian
Medical Fellowship (http://www.cmf.org.uk/ )
(Accessed April 2013)
Offences Against the Person Act 1861
s58. Administering drugs or using instruments
to procure abortion.
The Abortion Act 1967
s1 Medical
termination of pregnancy.
(1)
Subject to the provisions of this section, a person shall not be guilty of an
offence under the law relating to abortion when a pregnancy is terminated by a
registered medical practitioner if two registered medical practitioners are of
the opinion, formed in good faith—
(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 or any existing children of her family; or
(b)
that the termination is necessary to prevent grave permanent injury to the
physical or mental health of the pregnant woman; or
(c)
that the continuance of the pregnancy would involve risk to the life of the
pregnant woman, greater than if the pregnancy were terminated; or
(d)
that there is a substantial risk that if the child were born it would suffer
from such physical or mental abnormalities as to be seriously handicapped.
(2) In
determining whether the continuance of a pregnancy would involve such risk of
injury to health as is mentioned in paragraph (a) [or (b)] of subsection (1) of
this section, account may be taken of the pregnant woman's actual or reasonably
foreseeable environment.
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