Abortion, mental distress, and litigation
By Ellie Lee
June 14, 2002

Litigation based on the consequences of reproductive choices has become something of a fashion in the UK. Class actions have been brought by Pill users against the manufacturers of oral contraceptives, and women have brought a case against the company that makes the natural family planning device 'Persona'.

BBC Radio Four's flagship news programme, Today, broke the story on 12 June that a woman intends to sue the NHS because of the mental distress that followed her decision to have an abortion - distress that she believes could have been prevented if she had had more counselling before her abortion.

It is becoming commonplace for people to sue public and private bodies for the psychological effects of their experiences. Cases where litigants (often successfully) make claims on the grounds that they have post-traumatic stress, or simply 'stress', mean that compensation based on harm to our minds has taken its place alongside compensation based on physical harm.

This putative case has a particular dynamic. The anti-abortion organization Life is supporting the woman bringing the claim. In both the USA and Britain, anti-abortion organisations have made the issue of mental distress following abortion - often labelled 'post-abortion trauma' or 'post-abortion syndrome' - central to their arguments. Women, these organisations claim, are often traumatised by abortion and respond by 'repressing' or 'denying' their negative emotions.

One counsellor from Life told me that: 'Post-abortion syndrome is what happens to a woman when she's had an abortion, she hasn't recognised she is traumatised by it, she's pushed it under and hasn't been allowed to grieve, and she gets post-abortion stress. Some can have really serious psychological disturbances.'

This argument about the effects of abortion adopts the fashionable tendency to present many people as 'in denial'. On the basis of this, anti-abortion organisations engage in two kinds of activities. They offer women post-abortion counselling, through which women are encouraged to 'bring their negative feelings about abortion to the surface'. And they argue that women should sue abortion providers on the grounds that they were not warned about their 'negative feelings' in advance of abortion.

In 1998, Life announced they were setting up a 'helpline' for women to call, when have suffered emotionally after abortion. April 1998 was the tenth anniversary of the implementation of the 1967 Abortion Act, and Life used this occasion publicise its new 'service' for women. Jack Scarisbrick, Life's national chairman, claimed that a growing body of medical evidence showed that abortions left women at 'vastly increased risk of conditions including cancer, infertility and increased incidence of later miscarriages as well as psychiatric illness.'

Scarisbrick said: 'We want women who have suffered either physical or mental trauma as a result of abortion to contact us. We will encourage them to take the doctors responsible to court. We believe the only way we are going to get the medical profession to acknowledge the truth is by going to the courts and forcing the issue out into the open. It will have a deterrent effect on all sides. We already have enough to conclude that procured abortion is one of the most dangerous things that can happen to a woman'.

What is going in here? Anti-abortionists' moral objection to abortion relies on the belief that a fetus is a person and should be offered legal protection. This position has consistently failed to win support and undermine the legal provision of abortion. So it seems that opponents to abortion have turned to other means to further their cause. They are attempting to use the distress women feel into a legal strategy to undermine the provision of abortion.

Back to the case of the woman suing the NHS for mental distress. This is not the first time a case of this kind has been muted (although it is the first against the NHS). In 1999 a woman said she had been diagnosed with post-traumatic stress disorder after an abortion performed at a private clinic, and issued High Court proceedings against the clinic and two of its doctors. In 2001, a mother of six threatened to sue an abortion provider for failing to give her adequate counselling before she terminated a pregnancy.

But these cases came to nothing. And it seems unlikely that this recent case will get very far.

The information that women receive as part of procedures to establish 'informed consent' prior to abortion are guided by 'evidence based' approach to medicine. The Royal College of Obstetricians and Gynaecologists (RCOG) has an 'evidence-based' guideline that shapes the way in which abortion services are provided. This provides guidance for abortion providers on what information to give to women about both the physical and mental health effects of abortion. It has become standard practice to treat the 'psychological effects of abortion' like the 'physical effects of abortion', and to look to the available research evidence to provide information about the risks of the procedure.

On this basis, women who request abortion are informed that, for the vast majority of women, there is no risk that their mental health will be damaged by abortion. The RCOG guideline, for example, includes information about the psychological effects of abortion alongside that for risk of haemorrhage, uterine perforation and so on. The guideline draws on a review of published research evidence, in particular a well-regarded study by the psychiatrist Paul Dagg, and recommends that abortion providers inform women that 'only a small minority of women experience any long term, adverse psychological sequelae after abortion'.

Were there space to do so, the guideline could justify this approach in relation to an extensive, well-established field of research, which emerged in the 1960s and which expanded rapidly in subsequent decades when abortion had become legal. By the late 1980s it was estimated that there were over 1000 published pieces of research on the subject, making the psychological effects of abortion according to one North American obstetrician, 'the most extensively researched of all medical procedures'.

This body of research was partly impelled by the growing sense that abortion should be approached as a health issue, and its risks assessed scientifically. This approach emerged against a prior view, based on a cultural assumption rather than research evidence, that motherhood was psychologically harmless and abortion would make women mentally ill.

The accumulation of research during this time was given a further impetus in the USA in the late 1980s. As part of his campaign against abortion, then US President Ronald Reagan commissioned a review by then Surgeon General Everett Koop about the health effects of abortion. Reagan's reasoning was that was opposition to abortion would be boosted by the finding that abortion was bad for women's health. In the event, even though Koop was well known for his strongly anti-abortion views, the enquiry found that its mental health risks were 'miniscule from a public health perspective'. Research that endorsed this view has subsequently accumulated.

It is surely unreasonable to ask that abortion providers could do anything other than to go by this evidence. Abortion in Britain is considered a medical procedure, and providers of a medical service can be expected to base the information they give on the best available evidence. Current practice in abortion provision can therefore be considered entirely appropriate.

The only alternative to informing women in line with the current RCOG guideline would be for abortion providers to provide information that emphasises the experience of the minority - in other words, to emphasise the fact that some women do find it impossible to 'get over' their abortion. But what would this mean for those women who experience no such thing? Should they sue for being 'over counselled' and encouraged to feel miserable and guilty when they really feel no such thing?

Whatever the outcome of this recent case, it focuses attention on the issue central to the inclusion of mental distress as a ground for litigation. To what extent should other parties be expected to take responsibility for our state of mind? The abortion issue addresses this question so directly because abortion is an elective procedure. Women request to terminate pregnancies, they are not compelled to do so. If the outcome of that request is that the woman concerned intensely regrets her decision, and experiences all of the negative feelings that accompany this, should another party be held accountable?

It is surely unreasonable to expect that third parties should be accountable for women's decisions. This would deny the fact that when women request abortion we are making a choice - and we should take responsibility for its outcome. Most people will sometimes reconstruct and reinterpret past events in the light of subsequent experience. Some people may do so to the extent that they become unable to move on from the past, and experience extreme negative feelings as a result. But to say this is someone else's fault is a highly problematic approach.

The fact that women can get abortions legally depends in large part on the idea that it women are best placed to decide whether it is better to bear a child or have an abortion. While the law in Britain does not provide for 'abortion on request', in practice abortion provision takes place on the basis of the assumption that reproductive decisions are private ones, best made by those who will bear the consequences of them. This idea - usually termed reproductive autonomy - is crucial in any civilised society.

The zone of freedom in this area of our lives is something we should cherish - and this means us accepting that if things go wrong, it is part of parcel of the great advantage given to us when we are free to choose. Ultimately the notion that somebody else is liable when we feel badly after the exercise of choice is tantamount to saying we are not capable of making the choice - which is precisely why the discussion of the mental distress allegedly caused by abortion is so attractive to opponents of legal abortion.

The claim that more should be done to respond to the possibility of negative psychological responses to abortion constitutes an assault on the idea of choice, and degrades the notion that women are responsible adults who can act autonomously when making decisions about their reproductive lives.

Dr Ellie is a sociologist at Southampton University. She is editor of Compensation Crazy: Do We Blame and Claim Too Much, published by Hodder & Stoughton, available at any good bookshop and via the Institute of Ideas.