Abortion, ethics and the law: issues for the new millennium

In this briefing, produced by *Pro-Choice Forum, you will find key points and summaries of papers about abortion and the law given at a recent conference hosted by University of Westminster School of Law. At the conference, the papers provoked a wide ranging and useful discussion about the reality of abortion as an accepted part of life in Britain today; about the disparity between current thinking in law and medical ethics regarding the primacy of patient autonomy and British abortion law; and about whether the Human Rights Act is likely to lead to cases which in any way undermine the legal provision of abortion in Britain. Given the interest the papers generated at the conference, it seemed important to make them available to a wider audience, particularly those with an interest in ethics and abortion law - hence this briefing. The full versions of the papers can be found at the addresses given at the end of each of the following sections.

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Thanks to Simon Population Trust for providing financial support for this publication.

*Pro-Choice Forum is a research and education group, established in 1997. Its aims are:

(i) to increase knowledge about the causes of unwanted pregnancy
(ii) to increase knowledge about the social, legal and ethical issues surrounding abortion, and the management of unwanted pregnancy

In order the achieve these aims, Pro-Choice Forum organises lectures, debates and conferences; publishes pamphlets and leaflets; and publicises research about abortion and related issues on this site and elsewhere.

Key points:

On the place of abortion in British society today....

• If society expects individuals to plan their families, abortion is an essential back up to contraception. Abortion is not in itself a problem. Rather it can be a solution to the problem of unwanted pregnancy.

• Policy makers should not use the abortion rate as an indicator of a problem. A relatively high abortion rate may show that women wish to combine a sex life with ambition. It may indicate that women are unprepared to accept an unplanned pregnancy and shape their lives around it.

On British abortion law....

• The Abortion Act 1967 makes a woman's access to abortion dependent upon her establishing, to the satisfaction of two doctors, that an abortion is necessary to protect her health, or that of her children, or to prevent the birth of a child who would be born seriously handicapped.

• The wording of the statute reflects the framing of abortion as a public health issue, which may have been a sensible political strategy in 1967, but which may now be inconsistent with the overriding priority given in other areas of medical law to a patient's right to make their own decisions according to their own values and beliefs.

On abortion and the Human Rights Act....

• British law does not recognise fetuses as legal persons entitled to the protection of the European Convention on Human Rights. But some lawyers are keen to introduce fetal rights, using the new Human Rights Act 1998. Will they succeed?

• The arguments in favour of 'fetal rights' are not compelling. However, in a particularly emotive case, a judge may rule that fetuses are covered by the new Act. If this happens, it could have serious implications for women's autonomy and UK abortion law.

Summaries

Abortion is not a problem
Ann Furedi, Director of Communications, British Pregnancy Advisory Service

It is time to face up to the fact that abortion has a place in fertility regulation. It is a method of family planning - if by that we mean that abortion is used by women to control whether or when they have children. Women may not intend to rely on abortion as a means of family planning, but in reality that is often the way it works out.

Women today expect to have control over their fertility and are expected to control their fertility. The need for 'family planning' is almost universally accepted even among the most conservative thinkers.

But the evidence shows that women cannot manage their fertility by means of contraception alone. Contraception fails, and couples sometimes fail to use it effectively. A recent survey of more than 2,000 women requesting abortion at clinics run by BPAS, Britain's largest abortion provider, found that almost 60 per cent claimed to have been using contraception at the time they became pregnant, nearly 20 per cent said they were on the pill. Other studies have shown similar results.

The number of women who claim they experienced a split or slipped condom, or missed just a couple of pills, is undoubtedly inflated. Unprotected sex is stigmatised and some women requesting abortion may falsely claim to have used contraception believing that they will be treated more sympathetically if the pregnancy is 'not their fault'. But even so, it is clear that contraceptives let couples down. All methods have a recognised failure rate. Whether the pregnancy occurred because the condom split or because the couple failed to get it out of the packet is not very important. The simple truth is that the tens of thousands of women who seek abortion each year are not ignorant of contraception - most have tried to use it and, indeed, may have used it and become pregnant regardless
Women's need for abortion is implicitly understood by policy makers and legislators - this is why abortion is provided at NHS hospitals throughout the country.

Attitudes to abortion exist as part of a web of other ideas that interface with social values on other issues such as poverty, perceptions of women's role in society, the value of parenting and even global issues such as the environment and 'over-population'. Most democratic societies hold that women should expect, and be expected, to make a broader contribution to society than bearing and caring for the next generation. Motherhood is still regarded as 'natural' at some time in a woman's life, but most people assume that motherhood will be an interval sandwiched on both sides by an income-generating 'job' if not a 'career'. Girls from appropriate (middle class) backgrounds are expected to progress to a university education.

Society currently places a high premium on 'planned parenthood'. The belief prevails that children should be wanted, that parents should be able to support them, and be willing to make sacrifices for them. Growing social concern about 'unfit' or 'problem' parents does not easily co-exist with a disposition to force people to bear children they do not want and by their own admission cannot care for. This ethos creates a framework whereby abortion can in some circumstances be perceived as a 'responsible choice' even by social conservatives who would disapprove of abortion in principle.

In almost all developed countries, the laws that regulate abortion allow women to end unwanted pregnancies in the early weeks, usually restricting the criteria after ten or twelve weeks. In the USA, a woman's right to decide whether to terminate her pregnancy in the first trimester is deemed to be a part of her constitutional right to privacy. Countries as diverse as Turkey, France, Norway and Austria allow abortion on request in early pregnancy. Although the UK law does not allow abortion on request at any time in pregnancy it is considered acceptable and appropriate for doctor's to refer women on the grounds that it would be damaging to their mental health if they were denied abortion.

Surveys of public opinion suggest widespread tolerance of legal abortion. A national opinion poll carried out three years ago by the UK's main polling agency MORI found that 64 per cent of those asked agreed that: abortion should be legally available to all who want it. 25 per cent disagreed. The remainder neither agreed nor disagreed or said they did not know. The proportion of those who agreed had increased by 10 per cent since 1980. Birth Control Trust, for whom the poll was commissioned, suggested that this demonstrated a growing acceptance of legal abortion and a widespread belief that belief that the law should not be used to prevent women ending pregnancies.

Women today are at particular risk of unplanned pregnancy. Sex is an accepted part of an adult relationship for which we do not expect to suffer unwanted consequences. Pregnancy is seen by an increasing number of women as an unwanted consequence that they are not prepared to adapt to. The fact that more women are delaying starting a family until they are in their thirties, that many are deciding to opt out of parenthood altogether, suggests increased numbers of sexually active women who do not want a child. Is it any wonder then that the number of abortions remains high?

A relatively high abortion rate is not necessarily a sign of the failure of sex education and family planning programmes: it may be a symptom of a society where women wish to combine a sex life with ambition. It may be that an increasing number of women are unprepared to accept an unplanned pregnancy and shape their lives around it. Policy makers should stop using the abortion rate as an indicator of a problem. Of course it is preferable for unwanted pregnancies to be prevented rather than ended. Abortion is safe, but contraception is safer and more convenient. But it may be time to understand that, for women, abortion is an essential method of family planning and accept it as such.

For further comment on this issue by Ann Furedi, go to
www.prochoiceforum.org.uk/comm51.php
www.prochoiceforum.org.uk/comm28.php

Ethics and British Abortion Law
Emily Jackson, Lecturer in Law, London School of Economics

Given how common abortion is (it is estimated that at some point in their lives, one quarter of British women will have one), it was perhaps predictable that outright opposition to all abortion would become a minority view. Most condemnation of abortion now crystallises around certain sorts of abortion, which are regarded as more problematic than normal. For example, as the Human Genome Project is completed, the moral legitimacy of abortion following the prenatal detection of increasing numbers of genetic markers is the subject of fierce debate.

British law to some extent encourages the idea that some abortions are morally worse than others. Under the Abortion Act 1967, two doctors must be satisfied that an abortion is necessary in order to protect the health of a pregnant woman, or that of her existing family, or to prevent the birth of a child who would be born seriously handicapped. Access to abortion is then contingent upon two doctors' approval of the woman's reasons for wanting to end her pregnancy.

This approach to abortion is largely the result of the context in which the 1967 Act was passed, where the chief strategy of the reformers was to argue that abortion needed to be available where the birth of a child would jeopardise the health and well-being of a woman and her family. The resulting law converted this argument in favour of legalisation into a condition, so that a woman is not entitled to terminate a pregnancy unless she can establish that her health or that of her children would be injured. I intend to consider whether a law which depends on two doctors judging a woman's reasons for wanting to terminate a pregnancy may be inconsistent with the priority given in other areas of the law to the common law principle of self-determination.

In recent years, the primacy of patient autonomy has become an over-arching theme in medical law, and in the context of the refusal of medical treatment, it is now absolutely uncontroversial that a medical practitioner has to comply with the instructions given by a competent adult, whether those instructions are rational or irrational. And one essential feature of this respect for the patient's right of self-determination is that it extends to decisions of dubious moral quality. For example, in St. George's Healthcare N.H.S. Trust v S [1998] 3 W.L.R. 936, the Court of Appeal found that a competent adult woman was entitled to refuse a caesarean section even if her decision would lead to the death of a 36 week old fetus. Judge L.J. said: 'The autonomy of each individual requires continuing protection, particularly when the motive for interfering is as readily understandable, and indeed to many would appear commendable'. And he was clear that 'Pregnancy does not diminish a woman's entitlement to decide whether or not to undergo medical treatment. Her right is not reduced or diminished merely because her decision to exercise her right may appear morally repugnant.'

Similarly a statement from a 1999 Department of Health Circular is unequivocal that a competent woman is entitled to make a decision which will lead to the death or serious handicap of a fetus, even if that choice 'is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it'.

These statements seem to confirm that a robust concept of patient autonomy applies to pregnant women. They indicate that the death of a fetus is less important than protecting patient autonomy. If the law has established that a woman's decision should be respected, even if it will cause the death of a 36 week old fetus, is there some inconsistency with the Abortion Act's requirement that a woman's reasons for terminating a pregnancy of much shorter gestation must be judged acceptable by two medical practitioners?

In the longer version of this paper, I consider several possible objections to this analogy between abortion law and the common law principle of autonomy. My argument is that forcing a woman to carry, deliver, and bear responsibility for a child she does not want could perhaps be characterised as a potentially harmful interference with her interest in making significant choices about her life according to her own values. The fact that compelling a woman to carry an unwanted pregnancy to term is not regarded as a derogation from her right to make decisions about her medical treatment may reveal a network of assumptions about the naturalness of maternity, rather than an objective assessment of its relative intrusiveness.

Pregnancy, especially in its later stages, is a uniquely invasive experience, and for many women labour is exceptionally gruelling and painful. Unless the baby is immediately given up for adoption, carrying a pregnancy to term will also result in the extremely onerous and long-lasting obligations of parenthood. So insofar as a non-consensual operation is illegitimate because it interferes with a person's right to make significant decisions about their life, requiring a woman to carry an unwanted pregnancy to term could be similarly disruptive.

For further comment on this issue by Emily Jackson, go to
www.prochoiceforum.org.uk/al9.php

The Human Rights Act 1998 and 'fetal rights' - a new threat to women's autonomy?
Barbara Hewson, Barrister, Littman Chambers, 12 Gray's Inn Square

I recently attended a training seminar on medical law and the Human Rights Act, promoted by JUSTICE, the all-party law reform group, and a set of barristers' chambers well-known for clinical negligence work. There was quite a lengthy discussion about fetal rights and how the Act could be deployed to develop the idea of fetal rights. One presenter predicted that there would be an application for a court ordered caesarean section, before the end of 2000, using the argument that the fetus is protected by the Human Rights Act.

It would be more difficult for 'fetal rights' proponents to attack the Abortion Act directly, because under the new Human Rights Act, judges do not have power to strike down existing legislation. This is why moves to promote rights for the fetus will probably not focus directly on abortion, but on women who are pregnant and near term.

What provisions of the European Convention on Human Rights, which the Act introduces into law, might be involved? The obvious one is Article 2, the right to life. Another is Article 8, the right to respect for private life.

Article 2 as drafted does not appear to include fetal life. It says that the state can only take away life in certain clearly defined circumstances, including self-defence, conviction for an offence for which the lawful penalty is death, or if the police shoot someone whom they are trying to arrest. The Commission on Human Rights in Strasbourg has suggested that if fetuses have a right to life, it could not be an absolute right, because that would make access to abortion impossible.

Article 8 guarantees the right to respect for a person's family and private life. The state can infringe this right, if it can show a compelling state interest. Restrictions must be necessary in a democratic society, in the interests of (e.g.) public safety, prevention of crime, protection of health and morals, protection of the rights and freedoms of others. But is the fetus an 'other'? If it were, it would be difficult to justify abortion under Article 8; we do not kill 'others' to maintain a person's right to privacy.

Emotive cases may be used to shock the courts into ruling that a late term or viable fetus is a person, or has legal standing. Circular reasoning may be employed e.g. Parliament must have intended the Act to protect fetuses because the State must have the power to protect children. An example is a woman in labour refusing a caesarean; or a pregnant drug addict who will not give up drugs. If such a ruling occurs, then fetal rights supporters could work backwards to earlier points in gestation. A potential problem is that, if a judge rules that a fetus is a 'person', it would be virtually impossible to justify any abortion. And (as in South Carolina), pregnant women could be prosecuted under child abuse laws for smoking or drinking.

Those who favour recognition of fetal rights use a 'contractual' argument, that when a woman chooses to proceed with a pregnancy, she agrees to give up her autonomy, in the interests of her fetus. This is bogus. What contract?. How does the fact that a woman carries a pregnancy to term mean that she waives her fundamental rights? This argument is founded on an anachronistic view of women. Another argument is emotional, that 'someone must speak for those who cannot speak for themselves'. The claim is also made that even if a pregnant woman is locked up, or forced to have a caesarean section for the sake of her fetus, this does not infringe her autonomy. That is ridiculous.

More importantly, even if fetuses were persons, does that mean that a woman must forfeit her freedom for the fetus' health needs? This is an argument that lawyers favouring fetal rights typically refuse to address. In the St George's case in 1998 the Court of Appeal decided that if pregnant women could be locked up and operated on, for the sake of the fetus, then logically adults could be forcibly operated on to save the child of a stranger. However, bitter experience tells us that once 'helping a child' becomes the determining principle, emotion takes over and (as with recent hysteria over paedophiles) there is no limit to the invasions of personal freedom proposed.

For further comment on this issue by Barbara Hewson, go to www.prochoiceforum.org.uk/al10.php