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Abortion law

Ethics and British Abortion Law
By Emily Jackson, lecturer in law, London School of Economics

For most British women, access to abortion is relatively straightforward. It would also probably be true to say that the anti-abortion lobby has no chance of persuading this or any government to ban abortion. Instead, where opponents of abortion are now most active is in relation to certain sorts of abortion, which are regarded as more problematic than normal. For example, one area where the anti-abortion lobby has been active recently is in relation to reproductive technology. One reason why they are anti-IVF is that the risk of multiple pregnancies brings with it the possibility of fetal reduction, that is the termination of one or more fetuses while leaving one or two fetuses alive. Anti-abortion groups are also critical of abortion following prenatal diagnosis, where they are attempting to ally themselves with disability rights groups who are anxious about the implications of increasingly sophisticated prenatal screening techniques. Similarly, anti-abortion groups have seized upon the opposition expressed by some feminists to sex selection abortion.

In this short paper, I intend to suggest that British law encourages this idea that some abortions are morally worse than others. Under the Abortion Act 1967, two doctors must be satisfied that an abortion is necessary in order to protect the health of a pregnant woman, or that of her existing family, or to prevent the birth of a child who would be severely handicapped. Access to abortion is then contingent upon two doctors' approval of the woman's reasons for wanting to end her pregnancy. This approach to abortion is largely the result of the context in which the 1967 Act was passed, where the chief strategy of the reformers was to argue that abortion needed to be available where the birth of a child would jeopardise the health and well-being of a woman and her family. The resulting law converted this argument in favour of legalisation into a condition, so that a woman is not entitled to terminate a pregnancy unless she can establish that her health or that of her children would be injured

And the idea that the legitimacy of an abortion depends on a woman's reasons for wanting to terminate a pregnancy commands widespread support. This is apparent in the alarmist media reports that tend to follow news of the discovery of a gene linked to a particular condition. For example, ill-informed conjecture about the possible future identification of a gene "for" homosexuality or obesity is often accompanied by speculation that abortion could be used for reasons that might seem trivial or grounded in prejudice. As the Human Genome Project is completed, the moral legitimacy of abortion following prenatal detection of increasing numbers of genetic markers is likely to become the subject of even fiercer debate.

There are two related assumptions underlying these fears. First, it seems to be taken for granted that a woman's reasons for wanting to terminate a pregnancy are the subject of legitimate public interest. Second, it is assumed that a woman's access to abortion should depend upon whether her reasons are judged acceptable. I want to consider whether there might be a way to reorient abortion law so that a woman's reasons for wanting to terminate her pregnancy become irrelevant. In order to do this, I want to think about whether a law which depends on two doctors judging a woman's reasons for wanting to terminate a pregnancy might be inconsistent with the priority given in other areas of the law to the common law principle of self-determination.

In recent years, the primacy of patient autonomy has become an over-arching theme in medical law, and in the context of the refusal of medical treatment, it is now absolutely uncontroversial that a medical practitioner has to comply with the instructions given by a competent adult, whether those instructions are rational or irrational. And one essential feature of this respect for the patient's right of self-determination is that it extends to decisions of dubious moral quality. I want to consider whether this growing emphasis on a patient's right to make irrational choices about their treatment has any implications for the regulation of abortion. Should this right to make foolish or disturbing decisions be confined to the refusal of medical treatment, or could it have a broader scope? Might the concept of patient autonomy be useful in rethinking abortion law?
A liberal conception of autonomy is rooted in the idea that an individual should be able to pursue their own goals according to their own values, beliefs and desires. The individualism of liberal political theory has been criticised by many feminist theorists who have argued that it is insufficiently attentive to the importance of connections with others. I want to argue that respect for autonomous decision-making does not have to be incompatible with acknowledgement that a person's social, cultural and economic context will inevitably shape their decisions. A recognition that the woman should be the primary decision-maker in relation to abortion does not have to involve an unqualified embrace of individualism. An argument from autonomy may fail to capture the rich network of relationships in which decisions are taken, but I would suggest that it can nevertheless provide a useful tool for comparing abortion law with the regulation of other sorts of medical treatment. In particular, it might be worth noting the conspicuous absence of a robust concept of autonomy in relation what is an exclusively female medical procedure.

I want to suggest that the right of every adult to have some sphere of autonomy or self-government might be especially important for women who are deciding whether or not to carry a pregnancy to term. Protection of a pregnant woman's bodily autonomy should perhaps include her right to decide whether or not she has a baby. If in other contexts the law recognises that safeguarding self-determination is incompatible with the scrutiny of a person's reasons, then the Abortion Act's continued reliance on professional assessment of a woman's reasoning might seem rather outdated.

In the last few years the need to respect a patient's right to autonomy has emerged as a central organising principle of medical law. In the early 1990s there were two judicial statements that appeared to suggest that this right might be restricted for pregnant woman, particularly in the later stages of pregnancy. The first was Re T (Adult: Refusal of Treatment) [1992] 3 WLR 782, a case involving a woman who, for religious reasons, wanted to refuse a blood transfusion. Lord Donaldson's envisaged one hypothetical exception to a patient's right to autonomy: 'the only possible qualification is the case in which the choice may lead to the death of a viable fetus'. T's baby had been stillborn, so Lord Donaldson's observation was not directly relevant to the case before him. A year later in Re S (Adult)(Refusal of Medical Treatment)[1993] Fam. 123, a born-again Christian woman wanted to refuse a caesarean section. Following a two-hour ex parte hearing, Sir Stephen Brown relied upon Lord Donaldson's caveat, and the American case of Re AC [1990] 573 A 2d 1235 and granted a declaration that a caesarean section could be lawfully performed on a competent woman without her consent.

The decision in Re S was extraordinary. Sir Stephen Brown's reliance on Re AC was especially bizarre because although there had been a series of court-ordered interventions in pregnancy in the U.S., most of them involving women from ethnic minorities, in Re AC, which incidentally involved a white middle-class woman, the decision of the Columbia Court of Appeal was that the caesarean section should not have been performed on Angela Carder. The Court held that a refusal of consent must be inviolable in virtually all cases. In addition to this misreading of an American case. the decision in Re S also represents an extraordinary exception to the ordinary principles of English medical law. I would like to draw attention to two particularly striking anomalies. First, according to the decision in Re S, a woman's responsibility to her fetus would far outweigh a mother's responsibility to her children. Second, restrictions on the use of organs from corpses would mean that a cadaver would have a greater right of veto over unwanted surgical intrusion than a woman in labour. So, for example, if a woman who had expressed a clear desire not to be an organ donor dies suddenly, and her child is in urgent need of an organ transplant, it would clearly be unlawful for a doctor to remove her organs in order to save her child's life. Respect for the dead woman's wishes would trump the doctor's duty to act to preserve life. In forcing a competent adult woman to undergo unwanted surgery in order to save fetual life, Re S was undoubtedly an extraordinary decision. Unsurprisingly it has been heavily criticised both for its substance and its procedural shortcomings.

Guidance issued by the Royal College of Obstetricians and Gynaecologists, for example, states that: 'It is inappropriate and unlikely to be helpful or necessary to invoke judicial intervention to overrule an informed and competent woman's refusal of medical treatment, even though her refusal might place her life, and that of her fetus, at risk'. The College has also said: 'If the patient has an advance directive which specifies refusal of treatment, this should be honoured, even at the expense of the fetus'.

And in St. George's Healthcare N.H.S. Trust v S [1998] 3 W.L.R. 936, The Court of Appeal found that a competent adult woman was entitled to refuse a caesarean section even if her decision would lead to the death of a 36 week old fetus. Judge L.J. said: 'The autonomy of each individual requires continuing protection, particularly when the motive for interfering is as readily understandable, and indeed to many would appear commendable'. He also suggested that 'Pregnancy does not diminish a woman's entitlement to decide whether or not to undergo medical treatment. Her right is not reduced or diminished merely because her decision to exercise her right may appear morally repugnant.'

Following the decision in St. George's, it would be very difficult to force a competent adult woman to undergo a caesarean section without her consent. And a statement from a 1999 Department of Health Circular is unequivocal that 'A competent woman is entitled to make a decision which will lead to the death or serious handicap of a fetus, even if that choice is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it'.

These statements seem to confirm that a robust concept of patient autonomy applies to pregnant women at all stages of pregnancy. It has to be acknowledged, however, that this strong commitment to patient autonomy extends only to competent patients. There is not space here to address the complex issues which arise in relation to the treatment of incompetent women, but it is perhaps important to acknowledge that there have been a number of cases in which it has proved relatively easy to establish that the pain and stress of childbirth may cause a woman to become temporarily incompetent, thus making it easier to justify treatment without consent.

Rather the significance of the decision in St. George's lies in its articulation of an extremely strong presumption in favour of patient autonomy. In particular, in relation to the competent refusal of medical treatment, they indicate that the death of a fetus is less important than the protection of patient autonomy. And there may be some tension here with current abortion law. If the law has established that a woman's decision should be respected, even if it will cause the death of a 36 week old fetus, is there some inconsistency with the Abortion Act's requirement that a woman's reasons for terminating a pregnancy of much shorter gestation must be judged acceptable by two medical practitioners?

There will be those who will argue that refusing an unwanted caesarean section is entirely different in kind to wanting to terminate a pregnancy. While both decisions may cause the death of a fetus, there are plainly some crucial differences. My argument is not that the similarities in outcome efface these differences, but rather that we should be concerned about the overriding priority given to patient autonomy in relation to refusal of treatment, and the prevailing indifference to patient autonomy in relation to abortion.

I shall address several possible objections to the analogy I have drawn between the principle of patient autonomy and abortion law. First, according to the conventional liberal harm principle, an individual's freedom to act can be restricted only in so far as it is necessary to prevent harm to others. Could it be argued that unrestricted access to abortion would cause harm to others? It would be difficult to argue that the harm to the fetus itself justifies the limits to abortion. As we have seen, the law seems clear that the wishes of a pregnant woman should take priority over the protection of fetal life. Similarly, it is hard to see how society in general could be harmed by the wider availability of abortion. Again, in other contexts, the law seems to be clear that the moral repugnance of an individual's choice is not a sufficient reason for restricting their autonomy. So instead, I think the distinctive harm that some might argue would be caused by unrestricted access to abortion would have to be located in the differences in intention, and in the means of death. For example, in the St George's case, S did not intend to cause the death of her fetus, she intended to refuse surgical delivery. If her refusal had been respected, and the fetus had died, then the death would have been caused by an omission, rather than by the positive action of health care professionals.

A woman who has an abortion, in contrast, intends to end the fetus's life, and she is assisted by the positive action of medical practitioners. This difference between intentionally acting to end life and failing to save it is critical. English medical has relied on this act/omission distinction in relation to decisions about euthanasia. So doctors must not deliberately cause death, but they need not 'strive officiously' to keep someone alive.
This act/omission distinction undoubtedly has intuitive appeal. The obligation not to harm people does seem more compelling than an obligation to benefit people. But this apparent clarity may be misleading. In relation to the withdrawal of medical treatment from terminally ill patients, reliance on the act/omission distinction has led to some rather dubious and arbitrary decisions. While a doctor's duty to 'above all do no harm' may be considered central to ethical medical practice, it is not the only important consideration. Respect for bodily intergrity; patient dignity or self-determination might be equally important principles of medical ethics. Forcing a woman to carry, deliver, and bear responsibility for a child she does not want could be characterised as a potentially harmful interference with her interest in making significant choices about her life according to her own values. So to talk about the duty to do no harm simply begs the question, what do we mean by 'harm'?
The usefulness of the act/omission distinction with respect to fetal life is further undermined by the fact that it is lawful to deliberately end fetal life in accordance with the Abortion Act. So it already seems to be accepted that the arguments from first principles of medical ethics against deliberately ending a person's life do not apply to fetuses. Abortion is the most common surgical operation for women of reproductive age, and between 35 and 40 per cent of all women will have at least one abortion during their lives. Deliberately acting to end fetal life is then a routine medical procedure.

The act/omission distinction is, of course, not the only way that an abortion can be distinguished from a caesarean section. It could also be argued that the protection of medical discretion means a pregnant woman cannot insist that a doctor carries out a particular operation, whereas she should be able to refuse unwanted surgery. This would effectively limit a patient's right to self-determination to a right of veto, rather than a more general right to make positive choices about one's medical treatment. In relation to the management of childbirth, there is increasingly emphasis on the importance of a woman being able to make positive choices about her obstetric care. A pregnant woman's involvement in drawing up a birth plan is now widely assumed to be good clinical practice. These preferences are not confined to refusals of unwanted obstetric intervention. Instead women are, in the context of childbirth, entitled to make positive choices about the management of their labour according their own convictions and values. So in relation to obstetric care, the right to self-determination does seem more extensive than a simple right of veto.

Scarce resources, and the inevitability of rationing are often cited in order to reject any idea that a person might have a right to a particular sort of medical treatment. But those arguments do not work for abortion. The average abortion costs less than £300. The health care provided during an average pregnancy costs nearer £2000, and the costs of a child's upbringing are obviously considerable. There is clearly no economic justification for limiting access to abortion.

A related argument would be that doctors are not mere technicians whose duty is merely to comply with any patient's request for any operation. But it will seldom be the case that carrying out an abortion would run counter to a doctor's clinical judgment. Rather, a doctor's willingness or reluctance to perform an abortion will derive from his or her convictions about the moral legitimacy of abortion. A conscientious objection clause in the statute is then adequate to prevent a doctor being forced to act contrary to his or her ethical or moral values.

A further objection to the analogy between abortion and forced caesarean section is that the bodily autonomy of the pregnant woman is more severely jeopardised by the performance of an unwanted surgical procedure than it would be by refusing her an abortion. And it is of course true that the performance of an operation without a patient's consent is both a tort and a crime, whereas denying a woman an abortion would only be unlawful if her life was in danger. A forced caesarean is then a more serious legal wrong than forcing a woman to carry a pregnancy to term and go through an unwanted delivery. However, the fact that compelling a woman to carry an unwanted pregnancy to term is not regarded as a derogation from her right to make decisions about her medical treatment may reveal a network of assumptions about the naturalness of maternity, rather than an objective assessment of its relative intrusiveness. Pregnancy, especially in its later stages, is a uniquely invasive experience, and for many women labour is exceptionally gruelling and painful. Unless the baby is immediately given up for adoption, carrying a pregnancy to term will also result in the extremely onerous and long-lasting obligations of parenthood. So insofar as a non-consensual operation is illegitimate because it interferes with a person's right to make significant decisions about their life, requiring a woman to carry an unwanted pregnancy to term could be similarly disruptive.

A competent woman in labour is then treated as a patient with full rights of self-determination, even where exercising those rights will cause the death of a viable fetus. But a pregnant woman who has decided to terminate her pregnancy is instead someone whose potentially illegal act can be legitimised by the beneficent exercise of medical discretion. So she has no right to make this particular decision about her medical treatment, despite the fact that it seems now to be a firmly established principle that the choices of competent adult patients must be respected even if they are foolish, misguided or immoral. As John Harris, the bioethicist, has eloquently explained:
"we should be prepared to tolerate both some degree of offence, and some social disadvantages as the price we should be willing to pay in order to protect freedom of choice in matter of procreation."

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