Defending abortion -
in law and practice (cont.)
A MORI poll commissioned
in February 1997 by BPAS and Birth Control Trust showed
that 64 per cent of those asked agreed with the statement
'Abortion should be made legally available for all who want
it', while 25 per cent disagreed. The proportion of British
adults who agreed with the statement had increased by 10
percent since 1980, while the proportion that disagreed
had fallen by 11 percent.
Abortion should be made
legally available for all who want it (%)
|Agree very strongly
|Neither agree nor disagree
|Disagree very strongly
Circumstances when people
approve or disapprove of abortion (%)
|When the woman's life is in danger
|When the woman's health is at risk
|In a case of rape
|When the child would have a mental disability
|When the child would have a physical disability
|When the woman was under 16
For further facts and stats about abortion, visit www.bpas.org
2. The case for 'late' abortion
For the reasons discussed
above, there is a high degree of support for access to abortion.
However, the degree of support seems to differ depending
on what stage in gestation the abortion occurs. Public opinion
polls appear to indicate that while most people have no
difficulty accepting the legality of abortion in the earlier
stages of pregnancy, fewer are so sure about their position
as pregnancy progresses. In the UK Parliament, the most
frequent kind of measure to reform abortion law proposed
has been to lower the legal time limit (6).
The difficulty many have
in accepting the case for abortion at later gestations can
in part be explained by people's own experience of abortion.
Given that early abortion (during the first three months
of pregnancy) is extremely common, experienced by 35 to
40 per cent of women by the time they reach 45, the sheer
volume of those with some experience of this kind of abortion
mitigates against claims that it is morally wrong, or should
In contrast, the numbers
of women with experience of abortion at later gestations
is small. In 1999, 89 per cent per cent of abortions took
place in the first 12 weeks of pregnancy (7). Only one per
cent of abortions are carried out at 20 weeks gestation
and beyond: a total of 1745. This means there is no broad
constituency who are sympathetic to abortion at later gestations
as a result of their own experience. In contrast, there
is a widespread experience of what it means to have a wanted
pregnancy at this stage.
Abortions in England
and Wales 1999 by gestation (total 173, 701)
||% of total
|Under 9 weeks
|| 80, 800
|20 weeks and over
Public unease about late
abortion is shared by some in the medical profession. Developments
in neo-natal medicine have created a situation where, sometimes
- albeit rarely – babies born as early as 22 weeks gestation,
two weeks earlier than the legal time limit for most abortions,
can be kept alive.
Influential columnist and
science writer Greg Easterbrook has unsettled both pro-
and anti-choice lobbies in the US with an article in a recent
edition of The New Republic (8), which calls for
a reshaping of the abortion debate to incorporate new scientific
understanding. Easterbrook argued that, in the past, law
and religion defined our understanding of abortion because
science had little to say.
This, he claims, has changed.
The case for liberal provision of early abortion is strengthened
by evidence that the natural termination of potential life
through spontaneous miscarriage in early pregnancy is far
more common than previously assumed - but discoveries about
the brain activity of the more developed fetus stand as
an argument against late abortion. Easterbrook believes
this is a message those of us who support women’s right
to abortion are keen to ignore, in case we are compelled
to trade off liberal earlier abortion for restrictions on
those in later pregnancy.
As Easterbrook contends,
published studies of fetal brain activity and neurological
responses have helped to create a sense that post 21 week
fetuses should be treated like new-born babies. The fact
that these studies are contested has failed to halt a sense,
even within the medical profession, that the termination
of fetal life at this stage is something in need of review.
The number of gynaecologists prepared to carry out late
abortions is declining, and increasingly NHS trusts refer
their ‘late cases’ to the specialist abortion provider,
Under British law, the shift
of concern as pregnancy progresses away from the woman,
and towards the fetus, is in fact already formalised. 'Fetal
viability', is accepted as A CRITERION by which the legality,
or illegality, of abortion is determined, and as a result,
after 24 weeks, abortion is in general not legally permissible.
(a) Fetal viability and
third trimester abortion
According to the 1967 Abortion
Act (as amended), the point at which abortion ceases to
be legal in most cases, is at 24 weeks.
The 1967 Abortion Act (as
amended) (main clauses)
Section 1(1) Subject to
the provisions of this section, a person shall not be guilty
of an offence under the law relating to abortion when a
pregnancy is terminated by a registered medical practitioner
if two registered medical practitioners are of the opinon
formed in good faith -
(a) that the pregnancy has
not exceeded its twenty-fourth week and that the continuance
of the pregnancy would involve risk, greater than if the
pregnancy were terminated, of injury to the physical or
mental health of the pregnant woman or any existing children
of her family; or
(b) that the termination
is necessary to prevent grave permanent injury to the physical
or mental health of the pregnant woman; or
(c) that the continuance
of the pregnancy would involve risk to the life of the pregnant
woman, greater than if the pregnancy were terminated; or
(d) that there is substantial
risk that if the child were born it would suffer from such
physical or mental abnormalities as to be seriously handicapped.
1(2) In determining whether
the continuance of a pregnancy would involve such risk of
injury to health as is mentioned in paragraph a) or b) of
subsection (1) of this section, account may be taken of
the pregnant woman's actual or reasonably forseeable environment.
The specification of a time
limit of 24 weeks was added to the Abortion Act in 1990,
as part of the Human Fertilisation and Embryology Act (HFEA).
The key argument made for doing so was that at this point
in gestation it becomes possible for a fetus to be kept
alive outside of the womb. Aiding the survival of the fetus,
it was suggested, becomes at this point more important than
a woman's desire to end a pregnancy. Previously, the upper
time limit had been 28 weeks as this was seen to be the
time at which a child would have a reasonable chance of
survival if born alive.
The criterion of fetal viability
thus introduces an ethical distinction in abortion law between
second and third trimester abortions, which is essentially
centred on the fetus. The 'interests' of the fetus are
allowed to take priority over those of the woman.
Yet the viability distinction
is not something that can be precisely defined. It is determined
not only by the state of the biological being of the fetus,
but also the way society can provide mechanisms to enable
the severely premature baby to survive. It is not the case
therefore, as many would suggest, that at this point the
fetus is a 'life', but rather that medical technology can
intervene to enable it to survive. Viewed in this way, making
viability a point of great moral and ethical significance
is in some ways arbitrary and random. It is possible to
point to number of other points in the progress of a pregnancy
which you could be given moral weight.
In fact the Human Fertilisation
and Embryology Act highlights a very much earlier point
as being of great moral significance. It draws attention
to the development of the primitive streak. This is the
point at which certain cells in the embryo differentiate,
at about 14 days after conception. Traditional Catholics
pinpoint the point of conception as the point at which a
human life develops, on the grounds that at this point the
fertilised ovum is genetically distinct.
It could also be argued
that, within UK abortion law, the point of implantation
is given weight, which is usually a couple of days after
conception. This legally determines the difference between
abortion and contraception. It is legally accepted that
contraception is something that prevents pregnancy before
implantation, which is not seen as a matter for legal regulation.
In contrast abortion ends pregnancy after implantation,
and this is subject to regulation. Ultimately pregnancy
is a progression, a continuance of life forming and many
points of development can be identified.
Arguably, there are three
defining moments in pregnancy. The first is conception,
which is where something genetically distinct emerges. The
second is implantation - the point at which the woman becomes
pregnant. The third is the point of birth, which is morally
significant for the simple reason that at this point action
can be taken that was not possible previously. The woman
and baby are separate, and the baby can be looked after
without imposing on the autonomy of the woman.
One reason why it is unethical
for late abortion to be restricted is that such restrictions
undermine the principle of bodily autonomy, now accepted
in the medical law that states no woman or man should be
forced to undergo medical procedures against their will
(9). In this light, it is problematic that a woman should
remain pregnant and undergo childbirth out of an obligation
to maintain the life of the fetus.
Society does not impose
this obligation even in respect of born children. There
is no law that can obligate a person to undergo medical
treatment in order to save the life of another person. Many
people may not agree with a woman's reasons for seeking
a late abortion, and may think it wrong for that woman to
end her pregnancy. But others' agreement and approval should
be of no consequence.
Abortion should be subject
to no more legal constraints than any other clinical procedures.
It is important to recognise
that, even if the law were different, there is no reason
to believe that many women would opt for a third trimester
abortion. Prior to 1990, in Scotland, unlike England and
Wales, no time limit for abortion could be inferred from
existing abortion law - since the 1929 Infant Life Preservation
Act (from which a time limit of 28 weeks was inferred, prior
to the HFEA) did not apply there. The rate of later term
abortion did not suddenly decrease in Scotland after 1990,
which indicates that it is not the law which prevents women
from aborting late in term.
The reason there are relatively
few late abortions, even before 24 weeks, is not because
women are refused such operations, but because few requests
are made. Late abortion is not an easy option for women.
Often, and almost always in NHS
hospitals, late abortion involves an induced labour similar
to that which the woman would have experienced at term -
the difference being that, prior to the induction, a doctor
will have passed a needle through her abdomen into the fetal
heart, to ensure there is no live birth. Those women, fortunate
enough to be cared for in services where they are offered
a surgical alternative under general anaesthetic, still
endure a emotionally taxing time.
requesting such procedures are not a callous breed set apart
from other women. Abortion counsellors confirm that women
frequently want to know details of the procedure, and what
the fetus will feel. Often they want to know what will happen
to the fetal remains and they are concerned that they will
be treated with respect and not just discarded.
1998, of the 88 abortions carried out after 24 weeks, six
were at 35 weeks or later. The latest was carried out at
38 weeks. There are two ways to respond to women undergoing
this type of abortion. Either the woman concerned can be
considered as somebody who needed to be constrained by law
and forced to complete the rest of her pregnancy. Alternatively,
one can ponder the awfulness of the situation that made
this woman, undoubtedly with the approval of her doctors,
decide that it was better that the pregnancy ended without
a live birth, even so close to term - in which case you
might conclude that she must have been the most desperate
woman in the world.
access to late abortion should be defended both in law and
in practice. The few women that request abortions later
on in pregnancy do so because they have specific circumstances
that drive them to conclude that it is better if their pregnancy
does not result in a child. Neither advances in fetal physiology,
nor the development of fetal medicine and neonatal intensive
care, will affect these circumstances. These medical advances
have wonderful implications for those with problem pregnancies
where the baby is wanted – but have little relevance to
women who feel unable to carry their pregnancy to term.
A woman who feels repulsed by her pregnancy ONCE she has
learnt that her partner is leaving her for another woman
is unlikely to be moved by the latest knowledge about nociception.
do not request late abortions because they are ignorant
of fetal development. Science may now be able to tell us
more than ever before about fetal development, and there
is clearly lots more to learn, but it is arguable whether
this is relevant to abortion decisions, and that such decisions
will be – or should be – affected by it.
is not only third trimester abortion which has come to be
considered less acceptable than early abortion. Second trimester
abortion is also seen as less justifiable than abortion
early in pregnancy. ‘If a woman needs an abortion why doesn’t
she request it earlier?’ is the often-asked question.
organisations often suggest that their aim is in part to
eradicate later abortion, and claim that if it were made
easier for women to get abortions at early gestations, later
abortions would become unnecessary. Whilst of course it
should be made as easy as possible for women to access early
abortion, it is misplaced to suggest that late abortion
might, on this basis, disappear.
the past, later abortion could be justified through pointing
to delays in the system. A woman might request an abortion
at ten weeks pregnant and suffer months of delays while
she waited for an appointment. Today such delays are far
less common. One recent study showed that only 13 per cent
of second trimester abortions could have been managed earlier
by service improvements (10). Most women requesting later
abortions had not realised they were pregnant, had denied
the pregnancy or were in circumstances where a wanted pregnancy
had become unwanted.
study also reported on reasons women gave for late abortions.
Reasons given were grouped into unpreventable or preventable.
The records of all 111 women who had an appointment during
the first year of a second trimester Unplanned Pregnancy
Counselling Clinic (UPCC) were examined retrospectively.
Ninety women received counselling. Seventy one of the 90
women counselled had reasons recorded for late presentation.
Just 12 potentially preventable late presentations were
found. Reasons for late presentation were various: concealed
teenage pregnancies, perimenopausal women, or women with
irregular menstrual cycles, who did not associate amennorhea
with pregnany, pregnancies that were initially wanted.
after the first twelve weeks of pregnancy, will not become
unnecessary, however much access to abortion improves. It
is essential that those women who find themselves needing
abortion when their pregnancy has reached the second, or
third trimester, can avail themselves of the service they
require. In a context where support for abortion seems to
be increasingly dependent on the extent of fetal development,
rather than what women need, it is more important, not less,
that those who are pro-choice make the case for late abortion.
focus for the discussion of the 'problem' of late abortion
has been based on the claim that a fetus feels pain. The
debate about fetal pain originated with discussion that
began in the late 1980s, as a consequence of research which
indicated that a fetus is capable of a behavioral response
to sensory stimulation (11).
in fetal surgery, which include placing valves into the
heart and injecting red blood cells into the liver to prevent
anaemia, meant that neonatal surgeons and experts in embryology
were becoming more and more concerned about the potential
consequences of invasive fetal surgery. This concern was
given a major boost when Dr Anand, then of the John Radcliffe
Hospital, Oxford, demonstrated that new-born babies (neonates)
undergoing surgery did better if they were given anaesthetics
of a kind usually used only in adult surgery (until very
recently, neonates were not given anaesthetic before surgery).
1992, the New England Journal ran an editorial calling
on clinicians to 'Do the Right Thing' concluding that 'it
is our responsibility to treat pain in neonates and infants
as effectively as we do in other patients' (12). Since this
time, and extensive discussion has taken place in the pages
of medical journals, about the nature of pain, with many
eminent scientists concluding that they have much more to
learn about this phenomenon.
knowledge about the causes of pain can only be beneficial
to society, and it is important that clinicians do 'do the
right thing' where neonates and infants are concerned. It
is, however, extremely unfortunate that a discussion about
best clinical practice for new-born babies has led to a
debate, based on the notion that a fetus can feel pain,
about the 'problem' of late abortion.
far as late abortion is concerned, medical practitioners
have only one patient: the woman. In this respect, the only
ethical issue at stake is how to ensure she gets the best
care possible, and that the abortion is carried out in a
way that does not damage her health. Given that the object
of the exercise in late abortion, unpalatable as many may
find it, is to ensure that the fetus is not born alive,
discussions of fetal pain are substantively irrelevant in
this context. The only sense in which 'fetal pain' matters,
with regard to abortion, is where (as we discuss later)
women express concern about it.
would be easy to imagine that the reason why the question
of pain and late abortion have become connected is because
the anti-abortion lobby have exploited the issue. Undoubtedly
this has happened to some degree, especially in the USA.
But more recently, anti-abortion activists have distanced
themselves from argument against abortion made on the grounds
of fetal pain. For example, in an article written in anticipation
of a conference about fetal pain to be held in November
2000 at the prestigious UK Royal Institution, Jack Scarisbrick,
chairman of the UK anti-abortion organisation LIFE, made
it clear that fetal pain is irrelevant to the anti-abortion
cause: 'Our primary objection is that abortion is wrong
because it is a violation of the right to life' (13).
main cause of the debate about abortion and fetal pain is,
in fact, public pronouncements made by scientists with no
connection to the anti-abortion lobby. For example, Professor
Vivette Glover of Queen Charlotte's Hospital has ensured
that this issue has stayed in the news, with her frequently
expressed concern that fetuses undergoing late abortion
may feel pain. Her case is that the present state of knowledge
about pain does not allow us to be sure that fetuses do
not feel pain, hence we should 'err on the side of caution'
and give fetuses anaesthetic when a late abortion is to
be performed on a woman (14).
associated with the science of pain have been discussed
extensively elsewhere (15). In this paper, we will state
our position very briefly.
the term ‘pain’ has been ascribed to the responses a fetus
has to stimuli has less to do with an objective analysis
of pain than it has to do with the emotional processes of
those who use the term ‘fetal pain’. Since a fetus moves,
or screws up its face, it can appear to be 'suffering
pain'. However, the fact that nobody has any memory of being
born - which if a fetus can indeed feel pain would be expected
to be a very painful process indeed - suggests that there
is a great deal of difference between what might look like
pain, and what the experience in fact constitutes. What
needs to be said is that fetuses do not, an cannot, feel
pain - not at 10 weeks, 26 weeks or 30 weeks - because pain-experience
depends on consciousness and fetuses are not conscious.
key issue for us, and one which is simply not taken seriously
in most debates about fetal pain, is the implications of
'erring on the side of caution' for women undergoing abortion.
Professor Glover has stated that she does not want to alarm
women who have late abortions, with her pronouncements about
the pain abortion may cause to their fetuses. But this is
inevitably the outcome the kind of statement she makes.
is much evidence now to attest to the fact that women presenting
for abortion, in fact at earlier and earlier gestations,
are now extremely concerned about whether their action in
choosing abortion will cause a fetus to suffer. It is important
to remember that those women who attend for late abortion
will frequently be aborting a much-wanted pregnancy, where
disability has been diagnosed in the fetus. The procedure
they will undergo is long and arduous - much like labour.
The emotional strain is surely enough already, without the
additional (albeit unintended) strain of believing they
are causing the fetus to suffer by opting for abortion.
all abortion, but perhaps especially in the case of late
abortion, ensuring clinical practice takes steps to reduce
the concerns of the woman is paramount. It is for this reason
that in the UK, RCOG guidelines recommend that measures
to stop the fetal heart should be taken in all terminations
after 21 weeks gestation. This is to ensure that there is
no possibility of the abortion resulting in a live birth
26 weeks, the guidelines suggest that it is not possible
to know the extent to which the fetus is aware; and so after
this gestation it is suggested that ‘methods used during
abortion to stop the fetal heart should be swift and involve
a minimum of injury to fetal tissue.’ Even if the fetus
is not aware, these guidelines are appropriate to avoid
unnecessary distress to the woman, and it is this concern
that should be at the centre of abortion practice. The paramount
interests of the woman in abortion procedures is an important
principle. The pregnant woman is the patient while the fetus
is cared for on her behalf.