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Abortion law

Abortion - Whose Rights?
By James Heartfield


What follows is a transcript of papers given at a seminar held at Kent University Law School in the Autumn Term 1997. The seminar was organised by Ellie Lee, a student at Kent University and Co-Ordinator of Pro-Choice Forum, to give staff and students the opportunity to discuss issues surrounding fertility, ethics and the law.

James Heartfield

Abortion has been a contentious issue in British politics for a long time. This week saw the 30th anniversary of the 1967 Abortion Act which first legitimised abortion in this country and gave abortion legal status. The event of the anniversary generated two public demonstrations of current attitudes towards abortion, and as you might expect those demonstrations represented the two wings of the debate about abortion. The first was a 'Right to Life' demonstration, which was sombre and determined, as it sought to draw attention to the extraordinary number of abortions (as the demonstrators saw it), that are carried out in Britain today. Motivating those demonstrators in the main was a traditional religious attitude about the 'right to life'. This is an attitude that has a fairly robust conception of life, and its sanctity as a gift of God. What motivated people to demonstrate against the 1967 Abortion Act, was to point out that as they see it, literally thousands of unborn children are being murdered every year. They argue, those unborn children are living creatures, their life is a gift of God, and abortion is an abomination for that reason.

The opposite point of view was expressed in a demonstration generally in support of the 1967 Abortion Act. The central proposition of this demonstration was about choice, about the right of women to choose whether to proceed with a pregnancy or not. This is an equally robust attitude, forcefully arguing that any State restriction on a woman's right to choose abortion, is an incursion on her rights and her freedoms. Those two viewpoints have pretty much encapsulated the debate over abortion for the last thirty years.

I was struck by something when I looked at those two demonstrations, and that was just how low-key they were. Compare these demonstrations to those in the past in opposition to the Alton Bill. Protests against that bill were often very large and very vocal, as were the counter demonstrations by those who wanted to see the Alton Bill in place. In comparing today with the past you can see this is an issue that now fails to arouse passions, at least in the explicit public form that was the case in the past. People do still have strong feelings about abortion law, but there is a sense, I would suggest, that the old debate has more or less fallen away.

You can see this in the various demands that are put forward today. It is quite pointed that Cardinal Basil Hume, for the Catholic Church, did not the make the principal demand of his demonstration the absolute end to the 1967 Abortion Act. He chose instead to focus on the number of abortions taking place. In effect this was a concession on his part. He made this the focus understanding that there is not the public sentiment to reverse the 1967 Act, but suggesting that nontheless, it would be wise thing to seek to reduce the number of abortions, and especially late abortions. It was pointed that his attitude was not that 'We should have nothing to do with the 1967 Act'. Rather it was that even if he wanted nothing to do with the Act, the debate has been effectively won in support of some abortions at least for the mean time. In this circumstance the proper intervention for somebody of his perspective would therefore to limit the number of abortions. This is a tactical attitude if I can say that, not wishing to offend any Catholics here.

Equally, if we look at the other side of the debate, those people who are generally in favour of choice are themselves moderate in their demands compared to the past. It is striking just how much seasoned campaigners for choice, and feminist campaigners for 'A Woman's Right to Choose', have taken on many of the objections raised against them. Today vary few campaigners will avoid making qualifying statements, such as 'Of course abortion is a terrible thing' or 'Abortion is very traumatic for the woman'. Many intelligent, incisive feminist campaigners now make the point that it is not sufficient to say that the fetus has no rights, rather there is a desire on their part to show how fetal rights are expressed through the mother.

If one looked at those now more moderate voices on both the 'right to life' and the 'right to choose' sides, you might say that understandably thirty years of campaigning has taken its toll on both sides. Having been one-sided in their arguments in the past, they have listened carefully to each other and tried to dodge each others most argumentative standards, equivocate a little where it is tactically useful, and not put the case in too extreme a fashion, for fear of losing support. All these things are true - debates that are well worn tend to lose some of their sharper edges. Perhaps its is just the length of time that explains that these debates are less heated than in the past.

I would like to suggest that something else has taken place, which means that the discussion is almost bound to have moved on from where it was. The debate on abortion is no longer contained in the traditional or religiously inspired view of the sanctity of life on the one hand, and the more liberal right to choose argument on the other. The reason that those two sides have fallen away is in part to do with what is in the 1967 Abortion Act itself. There is something about this Act that removes the debate from traditional standpoint on the one hand and liberal free choice on the other. This is what has been called the 'medicalization' of abortion. This is the removal of the debate from political alternatives, to a medical paradigm.

The specifics of this are fairly straightforward. It is often said loosely that the 1967 Act enshrines in law a woman's right to abortion. What it does in fact is give two doctors the right to grant a woman access to abortion if they see fit. The right is within the hands of the doctor, or that at least is the legal position. Practically of course it is not generally that difficult for a woman to get an abortion in this country. I must express some caution in saying that however, because some women do face problems when they seek abortion. Some Health Authorities and doctors have been particularly hostile and put barriers in the way. But generally, doctors have taken a pragmatic attitude, where they read the legal provision in a fairly loose way and will tend to allow the woman to have an abortion where it is seriously sought.

It is important to stress though, that although it is relatively easy to get an abortion, this does not mean there is a right to it. There is no sense in which this right exists for women. A woman cannot procure an abortion at will, she has no such right in the law. She can only have that abortion where two doctors agree to it, on the grounds that pregnancy represents a threat in some way to the physical or mental health of the woman. It is therefore supposed to be a medical judgement (which is a tenuous proposition). So the woman has no right to seek an abortion in this country.

This is important because it means that although the 1967 Act was largely embraced by 'Right to Choose' campaigners, it itself does not enshrine a right to choose in the law. In fact it removes choice from the woman and gives it to the doctor, at least in a formal sense. This is interesting because it means firstly that the liberal attitude to the right to choose has been effectively undermined. The pressure for reform has been accommodated by the willingness of doctors to grant access to abortion.

Secondly, at the same time the traditionalists have also lost some of their argument. Their arguments which are not entirely of a religious character it should be said, but also embrace a fear of the perceived social disintegration resulting from easy abortion, have themselves been displaced. They have seen the traditional sources of authority displaced by the new source of authority, the doctor. What the 1967 Act does in a very intriguing way is undermine both arguments. It takes the authoritative component of the debate away from traditional sources of authority such as the Church and puts it in the hands of a secular authority, the doctor. At the same time it also undermines the choice demanded by 'Right to Choose' campaigners and puts it in the hand of the doctor.

I must stress that in current practice this does not mean doctors deny women abortion routinely. In the past this has happened and there has been resistance. At the moment there is not great hostility to abortion on the part of doctors. But that right, or the possibility for a woman to get a legal abortion is conditional upon the medical attitude of the time. It is not a right that woman have enshrined in the law. It is a gift, or a privilege if you like, conferred by the doctor.

I suspect that when historians look back, they will see the 1967 Act in some ways as a milestone in the legal and public administration of this country. I say that because I feel sure that this kind of medical regulation of social life that we will see a great deal more of. It is interesting in its own right that in this Act, doctors are placed in the position where they are making public administrative choices about people's needs and demands, in a way we would have thought was normally reserved for courts and judges and lawyers. It is interesting that we see the medicalization of this process.

My attitude is for choice. I am not a Catholic, although I entirely respect people's religious beliefs. I believe that women should have a right to choose whether to proceed with an abortion. Medicalization, enshrined in the 1967 Act overrides this choice. To finish I want to concentrate on what this says about rights.

The traditional opposition to abortion is not one that enshrines rights at its centre, although it does take account of this. Rather it enshrines life at its centre, and it does this because it sees life as sanctified as a gift of God. It draws the absolute lesson that we may not, in any circumstances, interrupt life. To kill an unborn child is an act of murder. That is a coherent attitude, whether you agree with it or not. It has as its core the idea of personality as something that is there from the beginning. Personality is there from the point of conception.

The liberal attitude has a very different conception of personality, which sees personality not as a gift of God or nature, but something that is acquired through life. Persons are persons through their experiences and development. For that reason it does not see the unborn child as a person at all. I think the right to choose position, if put coherently, would have to say that the unborn child is not a person, but rather a potential person, the biological precondition of a person, but not a person. For that reason there is no sense in the right to choose position, that would say the rights of the unborn can trump the rights of the woman where she considers whether or not to continue with the pregnancy.

It is my view too that 'unborn child' is a misnomer. I prefer the word fetus. You could say I am hiding behind words, but I do that because for me the essence of personality is choice, and being a person is defined by being free to choose and make decisions about your life. It seems quite false to me that you could qualify that choice and personality through pregnancy. I prefer not to see a medicalized solution, where the doctors supplant the priests as the custodians of our moral behaviour. I think this is bad for doctors as well as women. The right to choose for me must be the winning argument in this debate because it puts us, as freely choosing personalities at the centre.

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