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Opinion, Comment & Reviews
Abortion law

The 1967 Abortion Act: Four reasons to fight for choice
By Ellie Lee
22 October, 2007

The contest about abortion in Britain has shifted in recent years, with debates about 'the science' increasingly taking centre stage. This month sees the 40th anniversary of the 1967 Abortion Act, and discussion so far has again been dominated by arguments about fetal viability, and the psychology and biology of fetal pain.

A set of factors has generated this type of debate the least important is anything to do with science itself. In so far as there have been scientific / medical developments in recent years they are incremental not dramatic. What is far more important is the degree of importance that social actors have come to attach to 'science', reflecting what might be termed the de-moralisation of the abortion issue. The rise of 'science' as the reference point in the abortion debate reflects the decline of other lines of argument.

This shift is most obvious in the case made by anti-abortionists. They have come more and more to couch their arguments in the language of science and medicine and organise their campaigns accordingly. By the 1980s anti-abortionists knew that they were making little headway in turning clock back to days of illegal abortion, and so they sought to 'medicalise' their arguments. They started to make a big deal out of ultrasound images to suggest this technology has proved the fetus is 'a baby', and developed a raft of medical sounding arguments about the effects of abortion for women's health. They claimed, for example, abortion causes an as-yet-unrecognised mental illness, 'Post Abortion Syndrome' (1). Claims about a link between abortion and breast cancer, fetal viability, and fetal pain have all become standard aspects of anti-abortion rhetoric.

It is hard to overestimate how far this transformation in anti-abortion argument has gone. This was brought home at last week's Science and Technology Committee hearings held in the UK Parliament, set up to assess extent of scientific developments since the British abortion law last amended in 1990. Those attending these hearings were given opportunity to listen to a parade of dedicated men of God (members of Christian Medical Fellowship and the Society for the Protection of Unborn Children) attempt to present scholarly arguments to those assembled about methodology of breast cancer studies, the neurobiology of the fetus, and the design of studies assessing fetal viability. Since this indicated the degree to which the anti-abortion movement has opted for a craven retreat from making its case on moral and religious rounds, it was ironic indeed to also hear witnesses from SPUC go on to complain that in these hearings there was not enough 'ethics'.

Dedicated opponents of abortion are, however, not the only social actors who now oppose abortion by suggesting its regulation should be all about 'the science'. Some journalists have also made great efforts to stir up concern about legal abortion on this basis (2). This process reached a new nadir with the Channel 4 Dispatches programme broadcast on 18 October, a programme that spent a great deal of time and energy inventing scientific controversy where there is none, in order to make legal abortion look bad.

The approach taken by journalists like those involved with Dispatches draws attention to the wider context for the de-moralisation of the abortion debate. This is cultural ambivalence about the moral importance of choice. A central reason why it has become possible for the abortion debate to develop in the way it has, is because although legal abortion is widely grudging accepted in Britain on pragmatic grounds (as the 'lesser of two evils') free choice as a matter of principle is held in lower and lower regard. The vocabulary of 'science' provides for language for those who have distaste for freedom and liberty.

In this sense, the current abortion debate has much in common with wide range of others - from that about what British people eat and drink, to the use of CCTV surveillance. In all these cases, claims about 'scientific evidence' is used as stick with which to beat those who dare make the case for freedom of choice and civil liberty. The associated sensibility that has come to dominate culture is 'yes there should be freedom of choice, butů'. Very rarely is the word 'choice' mentioned without qualification and a health warning. This approach is very evident in the abortion debate, where the dominant position articulated by those who are not paid up members of Life of SPUC, is 'I'm pro-choice butů', and the 'but' these days usually revolves about raising qualms about the upper limit for abortion in the grounds of ill-defined 'new medical evidence'.

It now looks certain that abortion law will be debated by Parliament early in 2008 as part of debate about the Human Tissues and Embryos Bill. It is of course welcome if this debate is well informed about scientific and medical issues. It would be quite another outcome altogether, however, if discussion about what the abortion law should be like is stultified by the notion that law should be dictated by 'the science'. Such an approach would constitute nothing progressive, but rather would reflect the degradation of the idea of freedom dressed up in the garb of 'evidence based policy'. This possibility is real one however, because one arena where ambivalence, and often negativity, about choice has become the norm is in the sphere of formal politics. These days it sticks out like a sore thumb when a British politician defends the right of choice in any significant area of life (and when they do, they immediately get shouted down as irresponsible).

In this context it is worth restating why the British abortion law should be subject of a battle waged in favour of freedom of choice. Here are some key points about the law:

In Britain abortion is still formally illegal. Abortion, in early pregnancy at least, is now relatively easily available to British women. This makes it easy to forget the archaic backwardness of the abortion legislation. Indeed, many people do not realise just how backward it is. Abortion has never been de-criminalised in Britain. It still remains regulated by the 1861 Offences Against the Person Act, which makes it a criminal offence punishable by imprisonment to procure or perform an abortion. The 1967 Abortion Act legalises abortion (but does not decriminalise it) by creating a legal defence for doctors against the 1861 Act. In the current political climate, bizarre as it may sound, it appears unlikely as things stand that the current Government will grasp the nettle and move a century and a half forwards. Nevertheless, a basic condition for legal reform should be the decriminalisation if abortion, and the reformation of abortion law in line with the law regulating other medical procedures (3). Canada provides and interesting example of the positive effects of this approach (4).

Women have no right to decide. A distinctive feature of the British law is that throughout pregnancy, abortion only legal where two medical practitioners declare they have formed the opinion 'in the good faith' that a woman should be able to terminate her pregnancy. This state of affairs appears acceptable to almost no-one, and has been criticised endlessly over the years for a range of reasons. Yet 40 years after the 1967 Act passed, the two doctors rule remains.

Problems raised time and time again about this part of the law concern the administrative burden created (a lot of form filling when usual consent procedures would suffice, given abortion is very safe medically), and the huge disparity between law and practice (the law appears to make a big deal of the fact that it should be doctors, not women, deciding whether abortion should be carried out, but doctors' assessments are very frequently a formality). The law thus creates unnecessarily cumbersome and uncomfortable situations for those who provide abortions.

It seems clear that the requirement for doctors' signatures is not as much of a barrier in practice to women obtaining abortion as it once was. Abortions services now work in such a way that most women can access abortion in a relatively speedy fashion. (Although it is important not to understate the practical problems this rule continues to create. Some doctors continue to make it very difficult for women, especially when they present at later gestational stages (5)). This does not take away, however, from the fact that the two doctor rule has huge symbolic and cultural significance. The message it gives out is that women do not have moral and intellectual capacity to decide whether abortion is best thing for them. Women, the law tells us, should not be given authority to decide about whether to 'end a life', regardless of the fact that a) the fetus is in their womb and b) the continuance of the pregnancy will result in a child they have responsibility for.

This level of distrust of the competence of women should remain a key focus for discussion, regardless of how accessible abortion becomes. It abridges a key tenet of medical law accepted for every other medical procedure (6). The approach the law continues to take to abortion also reinforces one of most troubling wider aspects of our culture, namely the notion that individuals cannot be trusted to make sensible choices and decisions, but rather should be guided by an expert of some kind (a sensibility evident in the exponential explosion of experts of all kind in Britain, from 'parenting experts' to 'life coaches'). This means the abortion law as it stands should be contested by anyone who values autonomy, and who wants to uphold the idea that adults should be considered responsible and competent.

The legal grounds for abortion bear little relation to why abortion happens. The law eschews a woman's authority to decide whether a pregnancy should be aborted in favour of doctors' assessments, and in line with this the Abortion Act makes the legal grounds for abortion medical.

There are five main medical grounds for abortion set out in the Abortion Act. They do reflect possible reasons as to why a woman might seek to end a pregnancy. This is clearest for Ground E, which makes abortion legal where 'there is substantial risk of serious abnormality' in the fetus. This does describe why about 1% of abortions each year are performed, following results from antenatal screening and diagnostic tests. The vast majority of abortions are carried out under Ground C, which allows abortion where it is the considered the case by two doctors that the risk of continuing the pregnancy is greater than abortion. Part of the reasons why abortion is now relatively accessible is because the medical profession considers this to be generally the case for all abortions. The risks of both childbearing and abortion are now smaller for women's health than ever before. But it is widely accepted that the risks are relatively less for abortion than childbirth. This is considered clear cut for physical health, and also for mental health, especially where comparison group to women having abortions is women with unwanted pregnancies, who are denied abortion.

All of this really misses the point, however, about why women have abortions. Women seeking abortion do, of course, take into account the effects for abortion for their health and need to be given accurate information. But as studies of abortion decision making show, what really goes on for women is consideration of whether to have a baby (or another baby if they are already mothers). Abortion decisions are about much more than health. Decisions about whether to have an abortion or a baby are about individual women considering a whole complex of aspects of their family life, relationships, aspirations and perceptions of what they want for the future. This process of weighing up is at the heart of abortion decision-making, and it this that the law should reflect and recognise.

What the law should to is celebrate and uphold the right for women to make decisions about all of this; a right usually termed that of 'decisional autonomy', a freedom which determines that people should have the right to decide and act according to their perception of what is best. For abortion, it is without a doubt that sometimes making the decision about what is best can be very difficult for women and choosing abortion can be upsetting and hard. Indeed it the hardness of choosing that explains in part why women have abortions later on pregnancy, as they struggle to make their decisions (8). But recognition of a person's the right to make (an often very hard) choice should be a taken for granted part of the law. The law should reflect the truth of abortion decision making by defining unwanted pregnancy itself, a status of a pregnancy determined by the woman, sufficient grounds for abortion.

The law as it stands prevents best practice. While much energy has been expended debating medical advance and its effects for fetal viability, the real medical advance which is of significance for abortion since the law was last reformed in 1990 has been the advent of Early Medical Abortion (EMA). EMA works by using a combination of drugs taken by the woman up to 63 days gestation, which induce a miscarriage. It is widely recognised as a safe, effective abortion method, acceptable to women. The extent to which the British law holds back innovation that would assist women is demonstrated by the fact that while Britain was the first country after France to licence the drugs used in EMA (in 1991) it has now fallen way behind many counties in the world in this area of abortion provision.

British women are still denied access to EMA in many parts of the country because NHS services are not properly geared up to provide it. The key barrier however is the law, for two reasons. First, EMA is best provided though a nurse-led service, and which should include nurse-prescribing of the drugs. But this is illegal in Britain because the law states abortion can only be performed where it its deemed need by 'two registered medical practitioners', and this is taken to mean doctors. Second, it has been comprehensively shown by abortion practice in the US and South Africa that it is best to give women the option of taking the second part of the EMA treatment at home. This works very well and many women prefer it, since they miscarry in the comfort of their own home, not in a clinic (8). Yet in this country we are still nowhere near being able to provide EMA this way, because the law does not permit women to take the drug at home. At the current rate of progress, is sometimes seems as though British women will have to wait until the whole of the rest of the world has changed its practice before policy makers are willing to deem home use of EMA 'safe'. Even if policy makers prove too yellow to do what makes sense, and make abortion per se a matter of choice for women in law, the very least we should expect of law reform next year is changes that make home use of EMA possible.

1. Lee, E. 2003. Abortion, Motherhood and Mental Health, medicalizaing reproduction in the United States and Great Britain. Aldine Transaction.

2. Lee, E. 2007. 'The Abortion Debate Today'. In K. Horsey and H. Biggs (eds). Reproducing regulation. Cavendish.

3. 'Let us decriminalise abortion altogether'.

4. 'Canada, the civilised outlaw'

5. 'Abortion, better 'late' than never'.

6. See Professor Sally Sheldon's contributions to:
Written evidence to the Science and Technology Committee

Late Abortion, A Review of the Evidence (Pro Choice Forum)

7. 'What's wrong with 'do-it-yourself' abortions?

8. 'Abortion, better 'late' than never'.

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