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.
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
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
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.