Abortion has long been a contentious subject that has divided opinions – in both Parliament and the general public – into two conflicting camps, with each placing greater emphasis on one of two interrelated issues: the foetus’s moral status and a pregnant woman’s autonomy. Whilst the UK is deemed to be reasonably progressive in its attitudes towards abortion, the Abortion Act 1967 does not in fact grant women the right to terminate a pregnancy – it is technically at the discretion of registered medical professionals alone. Although this is largely a better set-up than that recently demonstrated in Paraguay – where a ten-year-old was denied the right to end a pregnancy forced upon her by her sexually abusive stepfather – it is fast-becoming obsolete in a society, which has shunned paternalism from the doctor-patient relationship.
In R v Bourne (the bedrock of modern abortion legislation), a surgeon was acquitted of the criminal offence of ‘intending to procure a miscarriage’. He was justified in assisting a fourteen-year-old victim of rape, as the judge observed that the young girl would be spared of ‘great mental anguish’ by terminating the pregnancy. This unprecedented ruling provided a defence, under which abortions could be carried out lawfully: for the greater good of preserving a woman’s mental health.
It would be incorrect however to assume that the founding spirit of the Abortion Act 1967 was to empower women in asserting their reproductive rights. Following R v Bourne from 1939, doctors were given a loophole in common law that partially decriminalised abortion, however the extent to which a doctor perceived an unwanted pregnancy to threaten a woman’s mental health varied greatly. The fees for ‘legal’ abortions were consequently unaffordable to most, as there was still a perceptible risk that doctors may face criminal charges, and thus access to safe abortions was restricted.
The lack of accessibility to abortions resulted in a dangerous rise in the number of ‘backstreet abortions’. David Steel, who first introduced the Abortion Act 1967 as a Private Members’ Bill, has since admitted that the introduction of the legislation was motivated by ‘revulsion at the damage caused by criminal and self-induced abortion and the hypocrisy of available subterfuge abortion on payment’. This was confirmed by the Lord Chief Justice in R v Scrimaglia, where he stated that the purpose of the Abortion Act 1967 was to ‘get rid of the back-street insanitary operations’ and reduce the associated mortality rates, which placed a heavy burden on the young NHS.
The 1967 Act was further based on two assumptions, that doctors: (1) will act in the best interests of their patients and (2) are most able to determine a woman’s best interests. Harold Shipman infamously succeeded in disproving the former assumption, whilst the latter has been criticised by ‘pro-choice’ advocates for its intrinsic paternalism and indeed, patronisation. In 1967, both Parliament and the medical profession were dominated by the male species, and thus the Abortion Act was conceived on archaic social constructs of women and doctors. Women were depicted as irrational, selfish or desperate; whereas doctors were responsible figureheads of society – i.e. everything a woman was not.
Thus the purpose of the 1967 Act is arguably to provide ‘registered medical professionals’ with lawful grounds to perform abortions, if they are shown to form an opinion ‘in good faith’ that an abortion meets the set requirements. Interestingly, it is difficult to prove instances in which a doctor has not acted ‘in good faith’, as there has only been one successful prosecution under these charges since the Act’s introduction. There are however dubiously vague grounds on which an abortion may be carried out, as more specific definitions were rejected by medical professional bodies in the 1960s. The wording of the statute would also suggest that even if the grounds for abortion do not exist in reality, the abortion remains legal if the doctors honestly believed that the grounds had been satisfied. This leaves the legality decidedly at the doctors’ discretion – creating ‘medical control of abortion’.
Female autonomy has thus been trivialised to a strong degree in both statutory and common law. Although there are concerns that misinterpretations of autonomy have created a healthcare system in which ‘the doctor must deliver what the consumer-patient demands’; it has long been accepted that the negative freedom to refuse treatment, as entitled by the principle of autonomy, cannot be translated into a positive freedom to demand certain interventions (despite the wishes of the patient). This was echoed in the case of R v Sarah Louise Catt, in which a judge stated that it was wrong to assume that the provisions of the 1967 Act made abortion ‘available essentially on demand prior to twenty-four weeks with the approval of a registered medical practitioner’.
I have failed rather spectacularly in hiding my distaste towards the Abortion Act’s ethos. Not only does current legislation neglect the changing role of a doctor in medical practice but it fails to acknowledge the medical advances, and subsequent changes to fetal viability, that have occurred since the Abortion Act 1967 and Human Fertilisation and Embryology Act 1990 were each introduced. Reform is long overdue; whilst there is no harm in continuing to preserve the integrity of doctors, a woman’s right to self-determination is now equally deserving of legal validation.
This post was based on a law reform proposal I wrote this summer. If you’re interested in reading about the changes I would implement, my justifications for these changes and/or have time to read a 5000 word essay, feel free to get in touch!