The Construction of Woman in Abortion Law
By Sally Sheldon

The following paper was given as part of a day of discussion for staff and students at Kent University Women's Studies Centre held in the Autumn Term 1997. The day was about reproductive choice and was organised by Ellie Lee, a student at Kent University and Co-Ordinator of Pro-Choice Forum.

Introduction

There are various reasons to oppose the law regulating abortion in Britain today as inadequate and inequitable.(1) Here I want to focus on just one of those reasons, which I would describe as the argument from principle. My argument is that the current regulations governing abortion are fundamentally predicated upon a particular way of thinking about women in general and, in particular, the kind of woman who would seek access to abortion services. I argue that this vision of women should form the basis of a principled rejection of the current law.

Regulations governing abortion.

Under the Abortion Act 1967, abortion is legal when a pregnancy is terminated by a doctor, and where two doctors certify that one of the following conditions is met:

a) risk to the woman's health or the health of any existing children of her family (within a 24 week time limit)

b) risk of grave permanent injury to the physical or mental health of the pregnant woman (no time limit)

c) risk to the life of the pregnant woman (no time limit)

d) substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped (no time limit).

In ascertaining the existence of these conditions, doctors are entitled to look at the 'actual or reasonably foreseeable environment' of the pregnant woman. This law does not apply to Northern Ireland where access to abortion remains extremely restricted.

If these regulations are examined within a comparative European context, two things appear significant. First, is the question of time limits. An upper time limit of 24 weeks, with abortions available after that time in certain, extreme circumstances, gives the impression of a comparatively liberal law. In contrast to this, however, it is striking that there is no provision for abortion on request in early pregnancy. This is different from many of our European neighbours who allow women a considerable degree of autonomy in early pregnancy.(2) There is an apparent paradox then, between the relatively liberal upper time limit and the illiberal refusal to recognise women's autonomy in early pregnancy. Secondly, there are some significant omissions from the 1967 Act. Many other countries which have adopted the same model of regulating abortion (a blanket ban with specified contraindications where abortion will be permitted) also make provision for abortion where the pregnancy results from either rape, or where the socio-economic circumstances of the woman make it impossible for her to have a child. These provisions are here notable by their absence.

Having given a very brief outline of the British law, I will now attempt to offer some explanation for why it took this form. My claim is that the Abortion Act is influenced by some fundamental assumptions regarding the kind of woman who would seek access to abortions and the doctors who would provide them. In particular, I will argue that the two features which I have identified above as unusual in our legislation - the seeming contradiction of the time limits and the 'missing clauses' - can best be explained in this way. First then, I will look at how women (and to a lesser extent doctors) are constructed in the Parliamentary debates leading to the introduction of the Abortion Act. I will then go on to outline how the assumptions which are made about both women and doctors are reproduced in the text of the Abortion Act.

Constructions of women.

It is possible to identify two quite distinct images of the woman seeking an abortion, as she is seen by the opponents of reform and as she is constructed by the reformers.

The opponents of reform

The opponents see the woman as a minor in terms of immaturity or underdevelopment with regard to matters of responsibility, morality, and even to her very femininity or `womanliness'. Her decision to abort is trivialised and denied rational grounding, being perceived as mere selfishness: she will abort, 'according to her wishes or whims', (3) for example, in order to avoid the inconvenience of having to postpone a holiday. She is immoral for being sexually active for reasons other than procreation; she is irresponsible for not having used contraception, and now for refusing to pay the price for her carelessness; she is unnatural and `unwomanly' because she rejects the natural outcome of sexual intercourse for women: maternity. There is a hint that one day she will come to realise the error of her ways and want children, yet may be unable to have them as a result of the abortion. (4)

Jill Knight (Con., Edgbaston), one of the leading opponents of reform, plays heavily on the idea of the woman as selfish and irresponsible within the debates leading to the 1967 Act. She reveals an image of women seeking abortion as selfish, treating '[b]abies ... like bad teeth to be jerked out just because they cause suffering ... simply because it may be inconvenient for a year or so to its mother'.(5) She later adds that '[a] mother might want an abortion so that a planned holiday is not postponed or other arrangements interfered with'.(6) The ability and willingness of the woman to make a serious decision regarding abortion, considering all factors and all parties is dismissed. Rather (like a child) she will make a snap decision for her own convenience. The task of the law is thus perceived essentially as one of responsibilisation: if the woman seeks to evade the consequences of her carelessness, the law should stand as a barrier.

People must be helped to be responsible, not encouraged to be irresponsible ... Does anyone think that the problem of the 15-year-old mother can be solved by taking the easy way out? ... here is the case of a perfectly healthy baby being sacrificed for the mother's convenience ... .For goodness sake, let us bring up our daughters with love and care enough not to get pregnant and not let them degenerate into free-for-alls with the sleazy comfort of knowing, "She can always go and have it out".(7)

As another MP comments, again with regard to whether abortion should be allowed to a fifteen year old girl, 'one needs to think twice before one removes all the consequences of folly from people'.(8)

Several participants in the Parliamentary debates give voice to an implicit assumption that it is morally wrong for women to make a distinction between sex and procreation - women should not indulge in sex, if pregnancy is not desired. William Deedes (Con., Ashford) makes these sentiments clear in expressing his concern that: 'science and its little pill will enable so-called civilised countries to treat sex more and more as a sport and less and less as a sacrament in love, a divine instrument of procreation'.(9) Perhaps the single most telling quotation here comes from David Steel himself, defending a clause to allow abortion in cases of rape, which was eventually dropped after debate in Parliament, for reasons which will be further developed below. He states,

[m]ost honourable Members would agree that to have a woman continue with a pregnancy which she did not wish to conceive, or in respect of which she was incapable of expressing her wish to conceive, is a practice which we deplore, but the difficulty is to find an acceptable wording which will enable termination to be carried out following sexual offences of this kind but which does not allow an open gate for the pretence of sexual offences.(10)

What is startling here is Steel's correlation of 'a pregnancy which she did not wish to conceive' with conception following rape. Steel fails to imagine that the vast majority of requests for abortion will be for pregnancies that the woman did not wish to conceive. In using this argument to justify abortion in cases of rape, he implicitly equates consensual intercourse with desired conception. Wanting sex equals wanting pregnancy equals wanting motherhood.

The reformers

The second narrative account strongly present in the Parliamentary debates is that of the woman as a victim of poverty and harsh social circumstances.(11) This construction is typically that of the reforming forces, where the woman and her social situation enjoy a far more central place. The reformers here seek to capitalise on the public sympathy for women facing unwanted pregnancy. Newspapers, magazines and books had reported horror stories of backstreet and self-induced abortions and, as David Steel tells the House of Commons, in the years preceding the introduction of the Abortion Act, an average of thirty women per year were dying at the hands of criminal abortionists.(12) Further, the well publicised thalidomide cases had contributed to public sympathy for the woman carrying a handicapped foetus.

The image of the woman seeking abortion here draws her as 'not only on the fringe, but [as] literally, physically inadequate'.(13) She is presented as distraught, out of her mind with the worry of pregnancy (possibly because she is young and unmarried, but normally because she already has too many children). She is desperate, and should the doctor not be able to help her, her potential actions are unpredictable (suicide is discussed).(14) Her husband is either absent or an alcoholic, her housing situation is intolerable. She is at the end of her tether simply trying to hold the whole situation together. As Madeleine Simms, of the Abortion Law Reform Association, later wrote: '[i]t was chiefly for the worn out mother of many children with an ill or illiterate or feckless or brutal or drunken or otherwise inadequate husband that we were fighting'.(15)

Lord Silkin was one of the most eloquent exponents of this narrative, and he had many opportunities to develop it during the passage of his Bill through the House of Lords.(16) The following letter, which he read to the House of Lords during the second reading of his own Bill, provides a typical and tragic illustration of the woman to be helped as she was envisaged by the reformist forces.

Dear Lord Silkin, I am married to a complete drunk who is out of work more than he is in. I have four children and now at 40 I am pregnant again; I was just beginning to get on my feet, and get some of the things we needed. I've been working for the last three years, and cannot bear the thought of that terrible struggle to make ends meet again. I've tried all other methods that I've been told about; without success, so as a last resort I appeal to you - please help me if you possibly can.(17)

Worries for the health of the woman are related back to concern for the well-being of the family. One particularly tragic story is told by Lena Jeger, MP. An 'honest young woman' with five children, recently deserted by her husband, was refused an abortion because 'she did not seem quite depressed enough'. The woman was forced to continue the pregnancy, and her depression following the birth of her sixth baby was so extreme, that she killed the baby by throwing it on the floor. The woman was now in Holloway prison, the children in care.(18) Lord Strange notes that 'nearly every woman in this condition [of unwanted pregnancy] would be in a state bordering on suicide'.(19) The woman's irrationality is sometimes conceptually linked to her pregnant condition, as David Owen states, for example, '[t]he reproductive cycle of women is intimately linked with her psyche'.(20) This pathologises women, playing on the notion of female behaviour as dominated and controlled by biology.

Women as natural mothers: opponents and reformers.

Both reformers and opponents of reform are united in a view of women as mothers. For the conservatives in 1966-7, the woman who rejects maternity is seen to reject the very essence of womanhood. Kevin McNamara (Lab., Hull N) provides a strong account of woman's maternal instinct,

[h]ow can a woman's capacity to be a mother be measured before she has a child? Fecklessness, a bad background, being a bad manager, these are nothing to do with love, that unidentifiable bond, no matter how strange or difficult the circumstances, which links a mother to her child and makes her cherish it.(21)

This implicit assumption of woman as mother is further reflected in the consideration of her existing responsibilities to children and family (and an apparent inability to see her outside of this role of wife and mother). Jill Knight informs us that, 'if it comes to a choice between the mother's life or the baby's, the mother is very much more important'. This is not, according to Knight, because she is more important in her own right, but rather because '[s]he has ties and responsibilities to her husband and other children'.(22)

The reformists seek to capitalise on the idea of maternity as the female norm. In defending the need for a social clause (to allow abortion where the woman's social and economic circumstances are deemed inadequate) within the Act, Roy Jenkins (Lab., Birmingham, Stechford, Home Secretary) argued that without the presence of such a clause, 'many women who are far from anxious to escape the responsibilities of motherhood, but rather wish to discharge their existing ones more effectively, would be denied relief'.(23) Another MP asserts in similar vein that,

in many cases where we have over-large families the mother is so burdened down physically and emotionally with the continual bearing of children that it becomes quite impossible for her to fulfil her real function, her worthwhile function as a mother, of holding together the family unit, so that all too often the family breaks apart, and it is for this reason that we have all too many problem families in many parts of the country.(24)

The construction of the doctor.

These images of the woman as selfish irrational child and desperate victim are contrasted against the cool impassive figure of the doctor. The doctor represents a calm, responsible, rational and reassuring figure - everything that the woman is not. He is without doubt a male figure(25) who is perceived as the epitome of maturity, common sense,(26) responsibility and professionalism. He is a 'highly skilled and dedicated',(27) 'sensitive, sympathetic'(28) member of a 'high and proud profession'(29) which acts 'with its own ethical and medical standards'(30) displaying 'skill, judgement and knowledge'.(31)

Regulating abortion/regulating women

The abortion decision.

On the basis of these constructions of women and doctors, the reformers were successfully able to argue that it was better to get women into the safe hands of their GPs, who could take control and `manage' the pregnancy in the best interests of the woman herself, her family and the broader society. 'If we can manage to get a girl such as that into the hands of the medical profession, the Bill is succeeding in its objective', argues David Steel.(32) And as Dr Winstanley points out, '[i]n every case the duty of the medical practitioners should be, wherever possible to encourage aid and support the mother towards term with the pregnancy'.(33)

Given the assumptions made regarding women seeking abortion in these debates, it is not surprising that Parliament agrees that abortion decisions are best located in the hands of doctors. The female subject conceived of within the Abortion Act is clearly someone who cannot take decisions for herself. Rather responsibility is handed over to the reassuringly mature and responsible (male) figure of the doctor. Thus, the legislation here assumes that the doctor will be better equipped to judge what is best for the woman, even though he may never have met her before and may have neither knowledge of, nor interest in, her concrete situation. The entrenchment of such a construction in law fits precisely with the images of woman deployed in the debates. If the woman is distraught and irrational, then she is an unsuitable party to take such an important decision. Indeed she inevitably and inherently lacks the necessary emotional distance to make such a choice in a considered way. Equally, if she is selfish and self-centred, intellectually and morally immature, considering only her own needs, and giving no weight to other factors (such as the claims of the foetus) in her snap decisions, she is again incapable of making such an important choice. She is thus in need of the normalising control of the doctor to impose either calm and rationality or moral deliberation and consideration of the interests of others.

Time limits.

On the basis of these constructions of women and doctors, the 1967 Act adopts a model of medical control of abortion. The abortion is seen as falling within the competence of doctors, as being a decision which is too important or difficult to be taken by women. In this light, the seeming paradox of the liberal upper time limit and illiberal failure to recognise women's autonomy in early pregnancy loses its mystery. By maintaining a high upper time limit, the autonomy of doctors to act in the best interests of their patients is protected. This is completely consistent with a refusal to recognise women's autonomy in early pregnancy.

The 'illiberal' refusal to allow women to make choices in early pregnancy and 'liberal' upper time limit both serve to protect and entrench medical control and to ensure that doctors are not reduced to the role of mere technicians. The effect of the concern with protecting medical discretion can be seen even more clearly in the 1990 parliamentary debates, when the Abortion Act was reformed.(34)

'Missing Clauses'

The two clauses allowing termination where pregnancy resulted from rape or where the woman's social or economic situation made it difficult for her to care for (another) child were included in the original Steel Bill, but were eventually deleted following opposition from all of the major medical bodies. The bodies were concerned that women might interpret the clauses to mean they had a right to demand abortions where the circumstances outlined were met.(35) For example, the Royal Medico-Psychological Association warned that:

[s]pelling out in detail when a doctor should or should not have the right to induce abortion, even if the legislation is cast in permissive terms, would have the effect of introducing an element of coercion in the sense that in each defined situation the patient might reasonably expect the doctor to acquiesce and the role of the surgeon or gynaecologist would be reduced that of a technician carrying out an objectionable task.(36)

Accordingly, in the words of two commentators, the law was left 'vague and fuzzy so that doctors would have total discretion in the matter of abortion and so that patients would be unable to argue.'(37)

It was also argued that in case of rape, abortion would already be available under other provisions, notably the risk to the woman's mental health. To remove the clause would mean that women would not feel they had an automatic right to termination in these circumstances and would minimise the risk of their fabricating stories of rape in order to qualify for an abortion.(38) One academic commentator explains the decision not to include a specific rape clause in that were it to be included: ' women would have a stronger inducement to allege that an unwanted or embarrassing pregnancy had been imposed by rape.' He goes on:

[t]his crime always poses problems of definition. The differences between rape and determined `masculine' seduction can be fine, and the presence or absence of consent can sometimes be impossible to find conclusively. Further, a woman may provoke her own rape by finally withholding consent from a man who is unable to control the passion she has deliberately aroused. At present, charges of rape are occasionally found where a woman wishes to protect her reputation, for example, where she is unmarried, but the prospect of having the pregnancy terminated, without anyone having to be prosecuted or convicted, would be an attraction which some women might find hard to resist.(39)

Just a history lesson?

In this paper, I have identified certain constructions of women and doctors which are present in Parliamentary debates and have attempted to show how these have impacted on the form taken by one statute: the Abortion Act 1967. The fact that I have dealt with events which are now some 30 years distant, however, should not suggest that the above is little more than a history lesson. Indeed, it is possible to identify the same assumptions regarding women who seek abortion in current media representations of women seeking abortion.(40)

More important, though, is the fact that the 1967 Act continues to provide the basis for the regulation of termination services in Britain. It has been modified only once, in a way which fully accepted the general form of the legislation voted onto the statute books in the 1960s. The law which is based on these assumptions about women is still in force and continues to have a major impact on the lives of hundreds of individual women every day. If the assumptions upon which the 1967 Act is predicated are accepted to be inaccurate, sexist and offensive (as I believe they are), then there is every reason for a principled rejection of the law.

Finally, I believe that there are also more practical reasons for challenging the 1967 Act. The effect of the Act has been to deliver women from the backstreets, into the hands of the medical profession: to enforce a medicalised understanding and control of abortion. This medicalisation has had advantages in ensuring, entrenching and protecting some access to abortion services whenever this has been challenged in either Parliament or the courts. However, medicalisation also presents enduring problems. Notably, it has left access to abortion services dependent on the vagaries of medical goodwill. This has meant that whilst some women have good experiences of abortion services, others most certainly do not. Access to abortion services in Britain remains characterised by large regional variations in NHS funding, leading to gross unfairness between individuals. And the whole experience of seeking an abortion remains a far more unpleasant, intrusive and traumatic one for some women than it should be.(41)

(1)The arguments in this paper are explained in considerably more detail in S. Sheldon, Beyond Control: Medical Power and Abortion Law, London: Pluto.
(2) For example, in France the woman is legally entitled to a termination within the first 12 weeks of pregnancy where she defines herself as being in a 'situation of distress'. This does not mean that she will not face considerable practical difficulties in obtaining a termination. See D. Simmonot, 'Avortements: le retour a l'étranger', Libération, 3 March 1993.
(3) Mahon, H.C. Deb. Vol. 750, Col. 1356, 1967 (13 July).
(4) See for example the comments of Knight, H.C. Deb. Vol. 749, Col. 932, 1967 (29 June), Glover, H.C. Deb. Vol. 749, Col. 971, 1967 (29 June).
(5) Knight, H.C. Deb. Vol. 732, Col. 1100, 1966 (22 July).
(6) Knight, H.C. Deb. Vol. 749, Col. 926, 1967 (29 June).
(7) Knight, H.C. Deb. Vol. 732, Col. 1101, 1102-3, 1966 (22 July).
(8) Maude, H.C. Deb. Vol. 732, Col. 1121, 1966 (22 July).
(9) Deedes, H.C. Deb. Vol. 732, Col. 1092, 1966 (22 July).
(10) H.C. Deb. Vol. 730, Col. 1075, 1966 (22 June).
(11) It seems clear that not all of those active in the debates shared the vision of those women seeking abortion as somehow deviant and aberrant which I will discuss below. Madeleine Simms was a founding member of the Abortion Law Reform Association, which spearheaded the campaign for the decriminalisation of abortion. In 1971, in a book co-authored with Keith Hindell, she notes that the reformers did consider the situation of the ordinary woman who simply did not want to give birth, and that one wing of the reform movement did feel there was a need for abortion for all on request. They acknowledged, however, that politically this idea was far too radical to gain public acceptance and parliamentary approval. It was obvious throughout the reform campaign that they would only be able to carry the country with them if they concentrated on the hard cases. See K. Hindell and M. Simms (1971) Abortion Law Reformed (London: Peter Owen) at p. 25.
(12) H.C. Deb. Vol. 750, Col. 1350, 1967 (13 July).
(13) V. Greenwood and J. Young (1976) Abortion in Demand (London: Pluto) at p. 76.
(14) See for example, Strange, H.L. Deb. Vol. 274, Col. 1235, 1966 (23 May).
(15) Simms, M. 'Legal Abortion in Great Britain', in Homans, H. (ed.) The Sexual Politics of Reproduction (Hants, Gower) p. 81.
(16) Silkin dropped his Bill so that the reformers could concentrate on getting the Steel Bill through the House of Commons (see Hindell and Simms, op. cit., 1971, p. 154).
(17) Cited in Hindell and Simms, op. cit. 1971, p. 80.
(18) H.C. Deb. Vol. 749, Col. 977-8, 1967 (29 June).
(19) H.L. Deb. Vol. 277, Col. 1235, 1966 (23 October).
(20) H.C. Deb. Vol. 732, Col. 1113, 1966 (22 July).
(21) H.C. Deb. Vol. 732, Col. 1129, 1966 (22 July).
(22) H.C. Deb. Vol. 732, Col. 1104, 1966 (22 July).
(23) H.C. Deb. Vol. 732, Col. 1144, 1966 (22 July).
(24) Dunwoody, H.C. Deb. Vol. 732, Col. 1098, 1966 (22 July).
(25) Doctors are referred to as 'medical men', 'professional medical gentlemen' and 'professional men'. They are always referred to as 'he' within the 1996-7 debates.
(26) Steel, H.C. Deb. Vol. 747, Col. 463, 1967 (2 June).
(27) Mahon, H.C. Deb. Vol. 750, Col. 1352, 1967 (13 July).
(28) Raglan, H.L. Deb. Vol. 274, Col. 591, 1966 (10 May).
(29) Lyons, H.C. Deb. Vol. 732, Col. 1090, 1966 (22 July).
(30) Steel, H.C. Deb. Vol. 747, Col. 464, 1967 (2 June).
(31) Hobson, H.C. Deb. Vol. 747, Col. 531, 1967 (2 June).
(32) H.C. Deb. Vol. 750, Col. 1349, 1967 (13 July).
(33) H.C. Deb. Vol. 749, Col. 1055, 1967 (29 June).
(34) See Sheldon, op.cit., chapter 6.
(35) Keown, J. (1988) Abortion, Doctors and the Law: Some Aspects of the Legal Regulation of Abortion in England from 1803 to 1982 (Cambridge: Cambridge University Press), at p. 87.
(36) Keown, ibid., at p. 89. Keown provides examples of the same objects from a host of other medical organisations.
(37) Hindell and Simms, op.cit. at p. 185.
(38) The idea that the women might fabricate charges is put forward several times in the parliamentary debates.
(39) Dickens, B.M. (1966) Abortion and the Law (Bristol: MacGibbon and Kee Ltd) at p. 139.
(40) See for example the Bennett and Allwood cases, discussed in Sheldon, op. cit., at pp. 90-5. 41.
(41) Ibid.