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Legal
Issues for Pro-Choice Opinion - Abortion Law in Practice
February 2002
On 25 November 2001, Pro-Choice Forum held a day of discussion
at Queen's University Belfast, entitled 'Legal Issues for Pro
Choice Opinion. There were two main aims for the day; first
to provide a forum for pro-choice opinion formers, from a range
of cultural contexts, to discuss key issues about abortion law,
and second, to disseminate main aspects of the day's discussion
through printed and on-line media. There were three sessions
held during the day, the first on strengths and weaknesses of
different forms of abortion law; the second on abortion in Ireland;
and the third on abortion and disability. A summary of the first
session is below. To read a summary of the second discussion
click here, and to read a summary
of the third, click here.
Abortion Laws in Practice
This session began with a roundtable discussion with Ann Furedi
(British Pregnancy Advisory Service), Jon O'Brien (Catholics
for a Free Choice), Marilyn Wilson (Canadian Abortion Rights
Action League), and Conceição Brito Lopes (Family
Planning Association, Portugal), chaired by Ellie Lee, co-ordinator
of Pro Choice Forum. Following this discussion, members of the
audience asked questions and made contributions from the floor
Ellie Lee (EL) British law has often been criticised
because it does not recognise in any way the right of the woman
to decide whether to end her pregnancy. The 1967 Abortion Act
rests entirely on doctors making judgements about whether abortion
requests can be authorised, on health grounds. However, in Britain,
it seems to be the case that at present policy makers are making
it easier for women to access abortion. The need to significantly
reduce the amount of time women have to wait to get the procedure
once they have been referred for abortion is mentioned in the
new Sexual Health Strategy from the British Government. The
regulations for independent sector providers have been relaxed
in recent years, and the Department of Health funded the RCOG
to develop new guidelines on abortion
provision, which deem abortion 'a healthcare need' for all women.
In this context, to what extent would we now consider the law
in Britain to be a problem? Second, why are policy makers pursuing
this approach to abortion provision?
Ann Furedi (AF) To take the second issue first. The British
abortion rate is high in comparison with other European countries,
at a rate of 17 abortions per 1,000 women aged between 15 and
44. The reason why the abortion rate has remained at that level
has been widely debated, particularly because the Department
of Health and family planning organisations have worked very
hard to extend access to family planning, to popularise use
of emergency contraception and so on. Of particular cause for
concern is the fact that abortions are rising as a proportion
of conceptions to women in their 20s.
An important reason for the relatively high abortion rate is
the view, held by many women, that motherhood is marginal to
their lives and futures. An increasing number of women are deciding
not to have children; one in five women is childless at 40 and
those women who do have children tend to want fewer children
later. Women are deferring the first birth of a child - the
average age of first birth is now nearly 30. In Britain we now
have a population of women that is determined to control its
fertility, cannot manage this through contraception alone, and
sees abortion as a back-stop to be used when contraception fails,
or is not used.
This pragmatic use of abortion, as a back-up to contraception,
has now been accepted by policy makers as well as women. As
a result there is no inclination to try to restrict abortion
as there is an understanding of the practical problems this
would cause. The liberal interpretation of the law, whereby
doctors concur that having an unwanted child is likely to be
damaging to a woman's mental health is so widely accepted as
to be almost now codified in policy.
This is illustrated by the inclusion of abortion as a target
in Britain's new national strategy for sexual health and HIV.
It is significant that abortion is included in this strategy,
with clear policy targets. This has never been the case in a
policy document before and has far-reaching implications. For
example, the strategy contains the target that, by 2005, any
woman who is legally entitled to an abortion should be able
to have an NHS funded procedure within three weeks of having
her abortion request approved by a GP. If this target is met
it will transform the way abortion is provided in Britain.
To respond to your first question, there is another aspect to
these developments. The inclusion of abortion in a national
sexual health strategy places the procedure in a medicalised
context. This is in keeping with the legal framework which seeks
to regulate it as a clinical procedure. From the point of view
of a provider of abortion services, this can be seen as a 'good
thing', as it allows abortion to be addressed as one aspect
of reproductive health services which fits within broader health
policy. Placing it in this context has also made it much more
difficult for opponents of abortion to attack abortion provision.
If abortion is seen as something which is essential to a woman's
health, it is very difficult for access to abortion to be undermined.
However there is a negative side to this medicalisation of the
issue. The representation of abortion as a health issue diminishes
the idea of a reproductive right to end an unwanted pregnancy.
We know that in reality most women do not have abortions because
of 'health problems' but because they do not want to have a
baby. These women would have an abortion even if becoming a
mother was not going to damage their mental health in any way.
Thus the law as we have it at present prevents us from telling
the truth about why women have abortions, and means that women's
need for the right to make decisions about reproductions
is not addressed.
EL That is an interesting point. In Britain politicians
are incredibly reluctant to countenance having any sort of public
discussion about abortion. It is arguably the case that in fact,
in the political arena, the 'A' word is more taboo than ever,
which may seem curious given that we have a new Labour government,
which comprises a large number of women MPs. On the other hand,
as you have described, there has been a transformation in the
way policy and practice works. This makes the situation peculiar
and interesting, and poses new problems.
AF I agree with that analysis. It poses a problem because,
in the political arena it is accepted for pragmatic reasons
that abortion needs to be provided, but that it is best to do
so 'on the quiet'. The last thing any of the mainstream politicians
want is a discussion on abortion in parliament, because that
risks provoking controversy and debate about fundamental moral
issues.
The political silence about abortion allows women's need for
the procedure to be met quietly, but it creates a political
problem: the argument for reproductive choice - for the moral
autonomy of women - is never argued out and so never won. We
benefit from an improved abortion service, without really challenging
people's prejudices about abortion, or taking it up in the political
sphere. This is potentially problematic, because policy can
be reversed when something else becomes a priority, or when
the context changes.
In Britain at the moment I think that abortion is pretty much
available on request certainly in early pregnancy. But that
need not always be the case. The political and social climate
may change and if this were the case, doctors might begin to
interpret the law in a different, and more conservative manner.
It is also arguable that, given abortion is considered a matter
that Parliament should decide upon in Britain, the current situation
is undemocratic. The outcome is positive for women, practically
speaking, but the fact that policy changes without it really
being discussed in public, is very worrying.
EL Finally, one aspect of the ease with which women can
get abortions at the moment is the way in which doctors are
interpreting the abortion law. Would you like to comment on
why doctors are prepared to assist women who want to terminate
pregnancies?
AF I think it is partly because they exist in the environment
that we have discussed already, and share with most other people
the view that it is better for a woman to have an abortion than
to continue through with a pregnancy that she does not want.
Some doctors (and other people) in Britain may even wish that
rather more women would have abortions. Social opinion
seems to accept that when women are, in their view, likely to
be 'bad mothers', abortion is the preferable option. For example,
it is clear that much of the debate about teenage pregnancy
is informed by the view that a high rate of teenage abortions
is preferable to a high rate of teenage motherhood.
EL North America is interesting because arguably it appears
to be the opposite of Britain. The Roe v Wade ruling is an inspiring
one, because it emphasises the importance of freedom, and the
need for people to be able to make decisions about their personal
lives free from interference by the state. Compared the approach
to abortion taken by British politicians in 1967, the view taken
by the Supreme Court in the US in 1973 is exciting and progressive,
in its appreciation of the need for women to have reproductive
freedom. A different set of influences shaped law reform in
America, which appear to be more forward-looking than those
which influenced law reform in Britain. However, if we turn
to the reality of abortion provision, it seems that while in
Britain it has become increasingly easy for women to get abortions,
in America there is a disparity between law and practice in
the other direction. A majority of counties are without an abortion
provider, there are many state-specific restrictive regulations,
and so on. How would you account for this disparity between
the terms of the law and practice in the US?
Jon O'Brien (JO'B) It is important to emphasise first,
that in the US, we have one of the best abortion laws in the
world. I agree with Ellie that it is certainly one of the most
liberal ones, and the Supreme Court decision is inspiring, and
has been greatly significant in laying down a marker regarding
a woman's right to decide on abortion not just in the United
States but for those in other parts of the world who are seeking
reform.
In the United States, unlike anywhere else in the world, abortion's
legality, at least before the fetus is viable, is a fundamental
constitutional right just as precious as Americans' right to
free speech or freedom of religion. That is a pretty incredible
positioning for abortion - it is usually regarded in a very
different way. Even in Europe, where abortion is generally legal,
we find that laws that allow abortion very often do so based
on a reluctant medical model - we have to allow it to prevent
other negatives happening, for example back-street abortion
- rather than recognising a woman's right to choose.
Given this, it is not surprising that the Roe v Wade decision
should generate so much heat and tension in the United States.
In Roe the court said that the right to privacy is broad enough
to encompass a woman's decision whether or not to terminate
the pregnancy. Feminists were worried at the time, and correctly
so, that the decision relied on the legal doctrine of privacy
rather than an equal right and protection for women under the
law. The central holding of Roe, however, that the fundamental
right to abortion existed was a hugely important victory for
American women.
The decision takes it for granted that a doctor will be involved,
because a doctor is going to provide the abortion. But uniquely,
ultimately the decision-making authority is left to the woman
herself. This approach contrasts rather dramatically with British
law and indeed with most laws in Europe.
The court in Roe also further enhanced women's standing as the
ultimate decision maker with its holding that under US law the
fetus is not a person. 'We need to resolve the difficult question
of when life begins,' the court wrote 'when those trained in
the respective disciplines of medicine, philosophy and theology
are unable to arrive at any consensus. The judiciary at this
point in man's development and knowledge is not in a position
to speculate as to the answer'. That is a pretty incredible
statement by a court. There is an absolutely marvellous foundation
within Roe v Wade for a woman's right to abortion.
There is of course on-going threats to Roe v Wade. Several vacancies
are expected on the US Supreme Court in the coming years and
given the current make up of the court one has to be extremely
concerned that the new Supreme Court justices nominated by President
Bush will oppose the constitutional right to privacy that is
the foundation of Roe v Wade. In surveying the political landscape
it is also probable that the most immediate attacks on Roe will
come from the federal courts where they will try to chip away
at a woman's right to choose abortion by confirming state laws
such as parental notification, Medicaid funding for poor women
and informed consent. They have already started chipping away
- since 1995, states have passed 301 laws restricting abortion
rights, including 29 in just 2001.
Regarding the question of access to services, it is easy, given
the extent to which the limits on access are emphasised by the
pro-choice community, to begin to look at the glass as half-empty.
It is correct that 86 per cent of counties in the United States
do not have an abortion provider. The number of abortion providers
declined by 14 per cent between 1992 and 1996. When you consider
the reasons why there is difficulty in access I think without
a doubt if doctors are under threats of violence and death,
many will not to work in this area. Also, as in the case in
Britain, in the United States it is not always the most lucrative
aspect of medicine to practice. There may be a whole group of
reasons as to why there can be a shortage of doctors , and why
there are not as many clinics as there should be.
Certainly one of the issues that concerns my organisation is
that for many poor women there is no government funding for
abortion. The US Congress has barred the use of Federal Medicaid
funds to pay for abortion except in cases of rape and incest.
The economic obstacle for the poor means that not everybody
can access the right that is Roe v Wade on a equal basis. And
abortion is just one of many health care services that poor
people in the United States should have more access to. It is
a situation that the pro-choice community needs to work to change.
On the other hand, 1.5 million women a year in the US get abortions,
with less difficulty than their European counterparts. The fact
is that abortion is available, although we have a lot of improvements
to make in women accessing the services. I think while we must
be vigilant and fight to advance Roe and defend Roe, it is important
to take a moment to reflect also on the glass half full. Roe
v Wade is a superb foundation for women's rights and dignity.
EL The other aspect of abortion that appears to peculiar
to the US, with the exception of Ireland, is the heightened
conflict and tension around the issue. This does not seem to
be paralleled in any other country in the world. For many, American
politics has become centrally defined by tension and conflict
around the abortion issue.
The explanation for this phenomenon, put forward for example
by Mary Ann Glendon, situates that tension as a product of the
law. Because there is a rights-based abortion law, which deems
a woman's right central, those who disagree have been motivated
to act in a way they have not elsewhere. Glendon argues than
an exceptions-based law, and a greater degree of medical control,
is far favourable on the grounds that this kind of law is far
more consensual and does not alienate groups of people in the
way that American law has. Do you agree with this explanation
for the US abortion debate? Of do you think that, even if you
had a different kind of law, it may be the case that there would
still be a visible and well-funded anti-choice movement in the
US, because the population is more religious?
JO'B I think it is the French abortion law that discusses
responsibility regarding parenthood, and of course in many European
laws there is an early time-limit on legal abortion, and in
Britain the doctors decide. In all these laws there is, overtly
or covertly, a concern for the fetus and a dislike of abortion.
In the US this is not the case. The law poses the right to have
an abortion as a positive, forward-looking gain for women and
society as a whole. This way of looking at abortion certainly
does create some tension of the type that you have described.
However, the reality is that if the law was not rights-based,
I still think the situation would be pretty much as it is today,
because of the make-up of society in the US. I think the hard-liners
in the United States who are against abortion would still be
there, they would still argue their case, and it would still
be something that manifests itself in a very different way than
amongst people who oppose abortion in other countries in the
world. Ultimately I think that we would have the same situation
in the United States because it is societal rather than just
about the law.
EL Let's move on to talk about the law in Canada.
Marilyn Wilson (MW) In Canada we have lived under three
different legal regimes - the 1889 regime of abortion being
a criminal act, to a similar situation to Britain where abortion
was legal under certain circumstances, that is with the approval
of therapeutic abortion committees, to the present situation
where all legal prohibitions were suspended as a result of the
Supreme Court Morgentaler Decision of 1988 [more discussion
of this decision can be found on the CARAL
website]. However, in the Morgentaler ruling, even though
it clearly states that abortion is considered a right for women,
it is not legally protected. This causes problems because members
of the anti-choice movement bring cases to the Supreme Court,
in which the Court has to rule over and over again that the
rights of a woman must supersede those of a fetus.
Unlike in Britain, in Canada, abortion is rights-based and debate
around abortion focuses on the question of rights. The current
legal situation came about through the Court striking down a
section of the criminal code in 1988, what became known as the
Morgentaler Decision.
Before that Dr Morgentaler, a doctor in general practice, continually
challenged the law through the provincial courts by illegally
performing abortions in clinics rather than in hospitals. However,
he was repeatedly acquitted when charged with committing a criminal
offence. In one instance, a judge overturned the jury's decision
to acquit him and he was put back into prison. This turn of
events pointed out to Canadians that the legal system as it
existed then, provincially and federally, simply could not continue
with the existing abortion law. In 1982, when the Canadian Charter
of Rights and Freedoms came into being to protect the liberty
and security of the person, the Court was able to look at section
251 of the Criminal Code, which restricted abortion, and rule
that it was unconstitutional, because it contravened Section
7 of the Charter.
However, in the Morgentaler Decision, the Court did not clearly
state that abortion was a right, only that the existing law
on abortion should no longer be applied. The Supreme Court was
very divided in handing down the Morgentaler Decision and it
was passed by a very narrow margin. The ruling was that abortion
should be a decision between a woman and her doctor, and that
abortion as part of the criminal code was unconstitutional.
The judges made this ruling not because they agreed that there
should be no law, merely that there should not be this law on
abortion. They did not like the existing law, because it did
not apply equally across the country and also because it pertained
to the medically treatment of women only. We ended up with no
law by default, and this is a very fragile legal situation to
have in the present political climate.
That is why we have to campaign to protect abortion rights.
CARAL has intervened in two Supreme Court cases where the right
to abortion was under threat. We also work to protect access
to abortion through the Canada Health Act, which established
in law, five principles to protect access to medically necessary
services under Medicare. These are comprehensiveness, universality,
portability, public administration, and accessibility.
The Colleges of Physicians and Surgeons are important in Canada
in this regard, because they decide within each province, what
is medically necessary under the Canada Health Act. Because
doctors have ruled that abortion is a medically necessary procedure,
it should be covered under Medicare whether performed in a hospital
or a clinic. However, we are finding that some provinces are
choosing to opt out of paying for clinic services, which has
created a huge problem for women. Unlike the United States,
in Canada two thirds of abortions are done in hospitals where
they are covered by Medicare. However, a recent survey by CARAL
showed that out of 692 hospitals in Canada only 17 per cent
of them now provide abortions.
This means that most women in non-urban areas have no access
to abortion care either in a hospital or in a clinic. Even in
major cities, where clinics do exist, there can be waiting lists
of up to six weeks in a hospital and if the woman lives in a
province which will not pay for the clinic abortion, she has
to pay for it herself. As a result we have a very unequal system
regarding access to abortion care in Canada. We are fortunate
in having the Charter of Rights and Freedoms and the Canada
Health Act but there are constant challenges being made regarding
their applicability to abortion rights. Therefore, although
the legal situation in Canada may appear to be a fairly ideal
situation, in practice there are still many barriers to abortion
care for women.
EL On the surface of it, the legal situation in Canada
may appear ideal, in that abortion is decriminalised, there
is no specific abortion law, and it could seem that abortion
is considered like any other medical procedure. However in practice,
because of the context and political dynamic within which that
legal situation arose, the decriminalisation of abortion has
not led to a situation where abortion is treated like any other
medical procedure.
MW That is true and, because we do not have a law which
explicitly protects abortion rights, there are many opportunities
for the anti-choice movement to bring cases to the Supreme Court
in an attempt to introduce fetal rights. These are often very
convoluted and obscure cases where it is difficult to determine
what is the intent behind the action. If the Supreme Court ever
makes a ruling in which a foetus is deemed to be a 'person',
then we are on a slippery slope to loosing the woman's right
to choose. Although these are difficult cases to argue, they
do often raise other social issues which pro-choice activists
can address without endangering reproductive choice for women.
EL It sounds as though doctors in different parts of
Canada are very different in their approach. Some are very supportive
of abortion, while others do little to help women. In the latter
case, is that because they are scared of the anti-choice lobby,
or do they oppose abortion?
MW The medical profession lobbied very strenuously to
have abortion decriminalised and are content to operate without
a distinct law on abortion. However, when the anti-choice lobby
tried to introduce a new abortion law in 1991 the medical profession
said they were not going to go through the fight again, and
if abortion was reintroduced into the criminal code, they would
simply stop doing them. Since that time, more doctors have opted
out of doing abortions because, as in Britain, they are not
particularly fond of this work.
The other important factor in Canada is the violence against
abortion providers and this has meant fewer and fewer doctors
are willing to do abortions. Medical schools are not training
doctors in abortion care. It is now an elective in a residency
programme. In one sense, when we had the therapeutic abortion
committees, it meant there had to be three doctors ready to
perform the abortion and trained to do it. Now there is no pressure
from the law, or the medical profession itself, to ensure that
there are doctors who know how to perform abortion as well as
willing to provide this care. Hospitals can set a policy but
doctors can still opt out of performing abortions as part of
their practice. So Canada is in desperate need of doctors trained
in abortion care and that is why the free-standing abortion
clinics are so important to us.
EL Finally, in Portugal, the government is currently
prosecuting 43 citizens, including 17 women, who allegedly underwent
illegal abortions. This seems like a highly peculiar course
of action. In Britain, even when abortion was illegal, actual
prosecutions were very rare.
CB-L They are very rare in Portugal too. Since the revolution
in 1974 there has only been one trial of a young girl accused
of having had an abortion and she was acquitted. The current
trial came about when it was reported to the Police that there
was a house where abortions were performed. Under Portuguese
law, abortion is a crime with few exceptions. The Police watched
the house and found indications that illegal abortions were
being performed there. They arrested the nurse who performed
them and proceeded to indict other people, namely 17 women whose
names they obtained from the nurse's papers, whose names and
addresses they were able to check and confirm. The other people
charged had helped the women - people like hospital staff, taxi
drivers, doctors and nurses -all kinds of people that would
help women to get the address of the house and go there.
As you can imagine, the women were scared, because what happened
to them was so unexpected. Although Portugal is formally a very
Catholic country, many women have abortions and it is very ordinary
to do so. Abortion is costly, but it is socially accepted, and
women are not ostracised because they had an abortion. These
women were questioned by the Police and two of them were very
scared and admitted they had had an abortion. If you show repentance
you get a lighter sentence and the sentence in Portugal is up
to three years in prison. You might get one day, three years
or you might get a suspended sentence. They were advised by
their lawyers to show repentance so they might get a lighter
sentence. But the other 15 women did not admit to anything.
They said had been there because they needed contraception,
because they needed an IUD put in place or something like that.
This is plausible because although contraception is free for
every woman n Portugal, it may be that at a clinic they say
they have run out of IUDs, or the pill, condoms and so on. It
was quite an acceptable explanation for them to say they went
to that nurse because she could provide an IUDs.
They were provided with public defenders and some well-known
lawyers also offered their services free of charge. But the
women did not accept legal help because they maintain they have
nothing to hide. They are keeping silent and we hope they will
be acquitted because of lack of evidence. As for the other people,
there is no news about their situation as yet. (Click here for
an update on this case).
Last week there were around 50 people gathered at the Court,
which is quite a crowd on these matters in a northern, very
conservative part of Portugal. The prosecutor has been very
quiet, which is absolutely not normal. The judge, who is a female,
is very tense, is asking lots of questions, which is very unusual,
and I hope is doing this because she wants to be very clear
when she passes judgement that there is a lack of evidence.
The question of the nurse is difficult. It could be considered
that she provided a service which is illegal but very useful
and should be offered our support. However she has been accused
of performing abortion for profit which is a criminal offence
with up to four years in prison. She has also been accused of
the theft of medical supplies from the hospital and of instruments
with which she performed the abortions which cannot be obtained
outside hospitals. Since she had drugs like morphine she is
also accused of dealing with drugs. She faces a very stiff sentence.
This trial will have a positive side, however, because nobody
ever expected this to happen and I expect that there will be
public outrage if anybody is convicted. On the other hand the
political classes at the moment are utterly silent about the
issue and the medical profession is also not very vocal at the
moment. The media are in a way more pro choice than they were
when we had the referendum on abortion in 1998. But if anybody
is convicted it will make people notice the law. Many do not
care about the law and did not even vote in 1998. This is because
women do have access to abortion very easily either in Portugal
or in Spain. This case may, however, put the issue on the agenda.
The aim of the FPA is to bring about legal change to have a
law that states abortion is a right for women, or at least have
abortion on request. We are fairly hopeful because the media
is more pro choice than before, and the Government is scared
because this situation is very unpopular. If women are convicted
because they had an abortion, it will be considered very bad
by most people and the Government will look terrible because
when the referendum did not lead to legal change, the government
promised solemnly that no woman would ever be accused of illegal
abortion.
EL Why has this case been brought at all?
CB-L It is a ridiculous situation, and I am sure the
Government regrets it. The Government has behaved very badly
on the issue for some time. Before the referendum, the governing
Socialist Party did not campaign at all, but just before the
vote, the Prime Minister said he would vote No, but said, 'I
promise you no woman will ever be indicted under this law'.
The approach taken by the Government is ridiculous. The law
is there, and if there is a complaint the judge must do something,
and may convict women.
Comments from the Floor
Floor Are there many people like the nurse you spoke
of who are performing illegal abortions in Portugal? And whatever
the outcome of this particular case, what will the next step
be for the FPA and other pro-choice organisations? Will there
be another referendum on abortion?
CB-L There is many women like this nurse, mainly midwives,
because it is more usual for midwives than nurses to perform
abortions, and there are doctors who perform illegal abortions.
They might just leave a note in the hospital, which lets women
know they have a private clinic where they can get an abortion.
It is very difficult to get a legal abortion. There are no facilities,
and at most hospitals doctors refuse to do abortions, saying
they have conscientious objections. There is now a law that
obliges hospitals to organise themselves so that women can get
abortions within the time limits allowed. But there are very
few hospitals that do so. There are hospitals in the three main
cities in Portugal in the north and centre of the country, and
in Lisbon, but not in the south. In other areas there are no
hospitals that provide abortions. If a woman tries to get a
legal abortion she wastes much time, so it is better and easier
to get one illegally. There is a serious need for trained people
to provide abortions in hospitals, clinics and even illegally.
Only a few people do it, especially legally. So women go to
Spain or to a private clinic.
So there is a real lack of facilities and almost no information
about abortion. Women cannot get information about what an abortion
is, how to get one or where to go. Even getting information
about contraception has been difficult. There is some information
now but 30 per cent of Portuguese women do not know anything
about the menstrual cycle and they do not know how to take the
pill. There is no sex education and family planning is not very
good.
We are afraid that the Government will ask for another referendum
on abortion. The leftist parties, the communist parties and
another party, have submitted a bill to change the law to provide
for abortion on request. They have done this, although if the
anti choice movement make a lot of noise, and suggest that abortion
will become common and be seen as no more significant than having
a cup of tea, they will accept abortion not on request but for
socio-economic and health reasons because this might be easier
to obtain. The FPA is very much afraid that the Government,
in order to stay as far out of the debate as possible, will
call for a referendum. We will campaign against this, because
the last referendum was a real flop. 70 per cent of voters did
not vote because they could see no need for the referendum.
We want legal reform as a first step, and the next step will
be to have no law at all. We do not want abortion to be a legal
issue, but to be considered like any other medical procedure.
Floor I think we are in a fools' paradise in Britain
at the moment. We have a government which does not want to address
the issue, but as Ann has so correctly pointed out, the fact
that we do have a medicalised law is a hindrance and not a help.
We should be moving towards a rights-based law and abortion
on request. Having said that, there has been progress of sorts,
but it is a typically British kind of pragmatic progress and
nobody talks about it. Abortion is still not talked about by
women. We have had legal abortion since 1968 and women still
cannot talk about the fact that they've had an abortion. But
it is so common for women at some stage of their reproductive
lives to have an abortion. It is now treated as a fairly normal
part of their reproductive behaviour but that is not recognised,
publicly at least, at the highest echelons.
Floor The point, surely, is that the Government in Britain
wants the availability of abortion for practical reasons, not
for women's reasons. They are prepared to move to make abortion
easy to get for other social goals, not because they are interested
in women being in control of their lives. From Marilyn's assessment
of the Canadian situation, it seems that there too, there is
choice for hospitals, choice for doctors, choice for the provinces
on whether they are going to fund abortion, but the one person
who should be at the centre of the debate is missing. I think
this is a common problem we face in all countries.
AF I very much agree with that point. It does seem that
the reason why it is easier to get abortion in Britain may not
be because of respect for women's autonomy in reproduction,
but because of other social priorities. I have argued that with
teenage pregnancy it is often seen as preferable for a young
woman to have an abortion and not a baby. This is fine when
a young woman does not want to continue her pregnancy. But many
young women feel very strongly that they want to have a child
and it is as inappropriate to attempt to encourage them into
having abortions as it is to deny women access to abortion.
Discussions about the relatively low abortion rate in ethnic
minority communities sometimes seem tinged with a hint of eugenics
- a sense that these people would fare better if they had fewer
children, and that better contraception and abortion have a
role to play in alleviating their poverty and reducing the number
of the needy. This social engineering agenda can be a conservative
(sometimes racist0 argument for liberal argument to abortion
and it carries with it a negative and destructive social agenda.
Floor That is an important observation. It does seem
that there is an increasing research interest in why young women
are not having abortions and a concern about doing something
to make it more likely that they go and have abortions because
the problem is that they are having babies. This has been a
constant theme in the discussion since 1967 - about what sort
of women should be having children. This argument for abortion
has very little to do with women's rights.
I was very interested in the discussion of Portugal. Can you
say more about how on the one hand there is no information about
where to go for abortion, but on the other there is social acceptance
that if you want an abortion you should just go and get one.
The social stigma around abortion in Britain is not something
this Government is going to do anything about, no matter how
much it wants to improve the services on the quiet. It is yet
another example of policy by stealth where the real issues are
ignored. This must be one of the most puritanical governments
we have seen for a very long time so the issues we might be
concerned with are not very likely to be not on their agenda.
MW At CARAL we believe that choice is choice is choice.
Some people consider that something of a copout because we do
not make any statements or any judgements about sex selection
or late term abortion. But we believe the decision is up to
the woman based her own moral judgement and she can consult
with her church, her conscience, or whomever. Often people do
try to draw us into debates, for example about whether it is
right for a woman to abort on grounds of the sex of the fetus.
Our view is that we feel badly that the girl child is not esteemed
in our society and in certain cultures and there should be a
move to change that. But that is another social issue. Our issue
is that she has the right to choose and that is it.
In discussions within CARAL we have considered whether it would
be better if we brought the abortion issue into the mainstream,
by arguing the case on health grounds. And every time we decide
not to, because the issue of women's rights and the issue of
choice must be key. I am glad to hear people think that here
too.
Floor Is abortion for fetal abnormality legal and available
easily in all of the different countries?
MW It is legal and practised in Canada. The Colleges
of Physicians and Surgeons set the limit at 22 weeks. Beyond
that, it can be carried out, but whether it is, is ruled by
the medical profession.
JO'B It is legal and available in the US.
AF In Britain a specific clause in the Abortion Act allows
abortion beyond the legal limit of 24 weeks that applies to
other abortions, where there is substantial risk that the fetus
is seriously abnormal. There is no clear definition of either
substantial risk or serious abnormality. Ultimately this is
defined by the doctor on a case-by-case basis.
CB-L In Portugal abortion is legal up to 24 weeks if
there is a serious malformation of the fetus or if the newborn
will suffer a serious incurable disease. But for instance if
the fetus is ancephalic [has no brain] it will be possible to
have an abortion later in pregnancy because even the older conservative
Catholics think that in this case it is not a viable baby and
it does no good to let the woman suffer, go through the pregnancy,
and give birth only to see the baby die. It was the case in
the past that this kind of abortion was only permitted within
16 weeks and it was impossible because the pre-natal testing
took much longer to complete. Surprisingly it was the medical
profession who started the movement to change the law to 24
weeks. Their argument was that because they had so little time,
they were performing abortions where in fact the fetus was healthy,
or where it could have been treated within the womb or immediately
after birth. So their main case was that a later time limit
would mean there were fewer abortions.
Floor In relation to the discussion about health and
rights, in Northern Ireland we are actually one step further
back still. It is considered a moral issue, and we are struggling
to get the issue of women's health taken seriously.
Floor In Scotland, although the Abortion Act applies,
there are significant cultural differences compared to England
and Wales. GPs act as gatekeepers, and many morally object to
abortion. Although women in Scotland do not have to pay for
abortions - over 90 per cent are carried out on the NHS and
we do not have independent clinics - this should not be taken
to mean we don't have problems. The problem we encounter all
the time is of women saying they have been made to feel really
bad, been judged, been denied a service, and wanting to know
what to do. Many women do not get told that in one health authority
they can get a termination up to 12 weeks but will not be able
to anywhere else, because there is no-one to do it. As a result
women go to 14 weeks or more, and have to travel to a clinic
in England. In practice in Scotland it is almost impossible
to get a termination, unless it's on the grounds of fetal impairment,
after 18 weeks.
AF The Scottish situation has been considered excellent
because such a large proportion of abortions takes place very
early in pregnancy and more than 98 per cent are funded by the
NHS. But the figures are deceptive. A higher proportion of abortions
take place in the first trimester because few units will perform
abortions at later gestations - in effect women either have
an early abortion or they don't get abortion at all. Almost
all abortions take place in NHS units because women have no
other choice as there are no specialist providers in Scotland
offering an affordable alternative. The reason why they all
take place in the NHS is because there is not anywhere else
to go to because there are not any other clinics up there. This
does illustrate some of the problems that can occur when abortion
posed as a health issue because it can be under-resourced since
it is up to local health authorities to decide whether or not
they fund it. If abortion is situated as a rights issue there
may be more leverage in terms of ensuring that it is properly
provided.
JOB Diane Munday, who was a prominent member of the group
that worked to change the British Abortion law in the 1960s,
has described the law that resulted as a comprise and has said
she bitterly regrets that compromise was made in some ways,
because now she says 'We're stuck with it and we really have
never been able to advance forward'. I wonder if looking at
change as progression, from illegal abortion, to legal for women's
health, to a question of rights, might be really flawed, in
that if there are compromises at the start, it becomes impossible
to move forward and win people over to the idea that women should
have a right to decide on abortion.
AF That is a good point, but I think the reason why the
discussion is absent in Britain is because there is no body
of opinion within our society that is taking the issue forward
or discussing the question in these terms. Ministers responsible
for women's issues, in the Women's Unit in the Government, pass
on letters about abortion to the Department of Health. There
may be all sorts of reasons for this response, but it is likely
to be most of all because this is politically the safest response.
We have not managed to find a way to change this agenda, and
generate a different way of thinking about abortion. Our problem
is that we have not got an educated enough or a committed enough
group within society working to do this. Perhaps it is the job
of younger women to make this happen.
Floor Is there a danger, if the emphasis is on rights,
of immediately opening the floodgates to discussion of fetal
rights?
AF This is a very important issue. In Britain in the
1970s and 1980s there was extreme polarisation of the abortion
debate, perhaps similar to debate in the States, precisely around
this issue of competing rights. In this sense it is important
that we bring other issues into the debate. Talking about bodily
autonomy and about women's equal citizenship is part of the
rights dialogue, but we also need to explain why women seek
abortion, and what society gains from allowing women to control
their fertility.
Floor I just wanted to add one point about we have not
got a climate of reform. I think part of the problem is the
situation which Ann has described, where women do have good
access to abortion. We got the Abortion Act in the first place
because of horror stories of women dying in the back streets.
Possibly part of the problem for both the North of Ireland and
the Republic of Ireland is that there is an escape valve of
women being able to travel to England or Scotland to terminate
their pregnancy. So women do not suffer and face the terrible
problems they did in Britain, which forced the medical profession
to move to support reform of the law.
Floor Since the 1967 Act was passed, at least five women
have died in Northern Ireland due to back street abortions.
Now you may say that is a very small number of people over 30
years but it is five too many. We do also know that a caretaker
from a school was recently prosecuted because it was found that
he had instruments that could be used to procure an abortion.
Floor There are young women who obviously cannot access
abortion, who cannot tell anybody they are pregnant, so they
have a baby in a field. We know this happens. And we are seeing
instances such as the baby found dead in black plastic bin liner
bag. Whilst it may not be a daily occurrence, such occurrences
do happen, and show that it is not enough that women can go
to Britain for abortions.
Floor There is no midwife practising in Northern Ireland
who has not at some stage tended somebody with a concealed pregnancy
either when the birth is imminent with the mother having received
absolutely no care at all or, as in one case I remember vividly,
of a 14-year-old who had delivered just after Christmas with
her parents having no idea at all that she was pregnant. She
was severely hypertensive, on the point of fitting, and had
had no ante-natal care.
EL Are there concluding remarks from the panel?
MW I think we might try to use all kinds of arguments.
We should point to illegal abortions, and state that women die
from abortions. We should also make it clear that the choice
women make is often a very highly moral decision.
AF In Britain the medicalisation of abortion has provided
a convenient, if opportunistic, defence against some assaults
on women's choice. For example, on several occasions, when a
man has tried to prevent a woman from aborting 'his unborn child',
they have been defeated by the argument that two doctors have
agreed in good faith that the procedure is in the woman's medical
interests.
The downside of the medicalised context is that women are placed
in a degrading situation where they present themselves as unable
to cope mentally with having a child, the doctor pretends to
believe them and everybody pretends this situation is adequate.
This is degrading to doctors and degrading to women. And it
does give credence to the argument that there is dishonesty,
since pregnancy does not really damage women's health that much
and abortion does not either.
I think the most compelling argument for choice in abortion
is to emphasise the way in which society now regards the individual
bodily autonomy of women and men. As Emily
Jackson has argued, the law has made it clear that women
have the right to refuse treatment, even if others consider
this morally wrong. For example when a caesarean section is
advised, but the woman does not want to undergo that procedure,
we will allow her to 'kill her baby' in giving birth because
we recognise that she is competent to make choices about her
treatment. This view can be and should be extended to abortion:
woman should have to undergo pregnancy and childbirth if she
does not wish to.
Appendix
Subsequent to the seminar, the court case in Portugal was
decided. A decision was made on 18 January 2002. The nurse was
given a prison sentence of eight and a half years. Only one
woman of the 17 was found guilty, and she was issued with a
prison sentence or a fine of 120 Euros. Of the other 25 defendants,
six received light prison sentences or alternatively a fine,
and the reminder were acquitted.
More information can be found at www.ippf.org
The following article about the case appeared in The Guardian
on 19 January 2002.
Nurse who ran abortion clinic from home jailed
All 17 women accused of using illegal Portuguese clinic walk
free
Giles Tremlett in Maia, northern Portugal
The trial of 17 women accused of having abortions at a backstreet
clinic in a northern Portuguese town ended yesterday with a
prison sentence for the nurse who ran the clinic, but only one
of the women found guilty. Sandra Cardoso, 21, who had tearfully
pleaded that extreme poverty, the violence of her partner and
sickness of her daughter had driven her to seek out the clandestine
clinic in Maia three years ago, was ordered to pay a small fine
or spend four months in prison. The judges could have sentenced
Cardoso to up to three years in prison.
They were not so lenient with Maria do Ceu, the nurse who ran
the clinic. She was sentenced to eight-and-a-half years in prison.
Three of those years were for breaking the notoriously strict
abortion laws in this strongly Roman Catholic country. The rest
were for stealing morphine and other dangerous drugs from a
hospital. Six other people who worked with her were given the
option of paying fines or serving up to six months in jail.
Before handing down the sentences, the panel of three judges
said: "We are aware of the political, social and scientific
debates surrounding this matter, but must stick to the law."
The mass trial was held in a packed marquee at Maia's tennis
club, because the town's ordinary courts were not big enough.
Supporters of the accused women had mixed reactions to the judgment.
"We are glad for these women, because none of them will
go to jail now," said Silvestrina Silva, of the Right to
Choice group. "But that does not stop it being shameful
that they have been put through this trial with all the pain
that involves". "The trial shows that clandestine
abortions in this country are a fact, and that people are still
punished for aborting in this country," she said.
Dina Nunes, a psychologist, said: "The court could have
put thousands of women on trial because there are many, many
more who have illegal abortions". "This is the 21st
century but women in Portugal still do not have the right to
decide what they do with their own bodies and lives."
The court heard that women who became pregnant in Maia or nearby
Oporto and did not have the money to travel to abortion clinics
in Spain were told about the clandestine clinic by hospital
personnel, chemists, taxi drivers or their own friends or relatives
- many of whom were also on trial yesterday.
At the clinic set up in the nurse's home, in exchange for the
equivalent of £300, the pregnant women were given an injection
that knocked them out for the duration of the operation. None
of the women, however, had enough money to pay the nurse the
full fee. All left items of jewellery - wedding rings, necklaces
or earrings - as surety while they tried to scrape together
the remaining cost.
Campaigners immediately demanded a new abortion law for Portuguese
women yesterday, saying that the current law put lives at risk
and was ignored by up to 40,000 women who visited illegal clinics
every year.
Helena Gradim, the lawyer for one of the accused, said: "Before
punishing anybody, it should be recognised once and for all
that economic and social conditions push thou sands of women
into risking their lives by having abortions every year."
Duarte Vilar, the director of Portugal's Family Planning Association,
said: "Clandestine abortions have caused a number of deaths
and thousands of hospital admissions". "It is time
this was treated as a matter of public health," he added.
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