From nucleus - winter 2004 - Abortion Law Reform [pp11-19]
On April 27 1938 a girl of 14 was raped by a group of guardsmen at Wellington Barracks in west London. She became pregnant as a result. The first doctor asked to terminate the pregnancy was a Roman Catholic who refused. The second doctor, Aleck Bourne, admitted the girl to St Mary’s Hospital, Paddington, to carry out the operation. English law at the time outlawed abortion unless it was necessary to preserve the life of the mother. Dr Bourne informed the police of his intentions prior to the termination and was subsequently charged with a criminal offence.
The case attracted much media sympathy. Dr Bourne became something of a public hero for challenging the law and risking his career for the sake of a young girl. He was acquitted by the jury under clear direction from the judge. The ruling redefined the boundaries of abortion law and laid the ground for the 1967 Abortion Act.
Bourne went to the authorities to establish the legality of the operation he had performed. He was not a strong advocate of abortion, but he believed it was the compassionate response in certain situations. He had sat on the British Medical Association’s (BMA) 1935 Committee on Abortion and was a member of the Medico-Legal Committee of the Abortion Law Reform Association (ALRA) – the campaign group founded in 1936 to liberalise abortion legislation. However, he only favoured abortion when it was ‘necessary’, believing that it would be unnecessary in a society with adequate wages, education, and improvement in the position of women.
Bourne was later alarmed by the effect of his case on English law. He resigned from the ALRA in 1945 and became a founding member of the Society for the Protection of Unborn Children (SPUC). He was strongly opposed to the 1967 Abortion Act and predicted that it would lead to ‘the greatest holocaust in history.’ This article examines the steps that led from R v Bourne to the 1967 Abortion Act, and beyond, in the hope that we can learn something useful from what is past.
In R v Bourne, Mr Justice Macnaghten brought the OAP and ILP Acts together (see box) and read the ‘preservation of the life of the mother’ clause back into the OAP Act so that it covered all abortion procedures. He then made a ‘wide’ interpretation of that clause in his directions to the jury: ‘It is not contended that those words mean merely for the purpose of saving the mother from instant death…I think those words ought to be construed in a reasonable sense, and, if the doctor is of opinion…that the probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck…[he] is operating for the purpose of preserving the life of the mother.’
1803 - ‘Lord Ellenborough’s Act’ made abortion a statutory felony both before and after ‘quickening’, punishable by death.
1837 (re-enacted 1861) - The Offences Against the Person (OAP) Act, made it illegal to ‘procure a miscarriage’ or provide the means for a woman to ‘procure a miscarriage’, punishable by life imprisonment.
1929 - The Infant Life Preservation (ILP) Act was added to fill a gap in English law in that no statute covered the destruction of a child in the process of being born. It created the ‘fetal viability clause’: anyone who destroyed a child ‘capable of being born alive’ was guilty of a crime, unless it was done ‘in good faith for the purpose of preserving the life of the mother’. The ILP Act set fetal viability at a gestational age of 28 weeks.
1939 - R v Bourne introduced the concept that pregnancy could have detrimental effects on a woman’s mental health such as to pose a significant risk to her ‘life’.
1967 - The Abortion Act provided a defence to the OAP Act, making abortion legal when the conditions of the Act are complied with. The ILP Act still stands, setting the legal upper limit for termination at 28 weeks.
1991 - The Human Fertilisation and Embryology Act amended the 1967 Act to lower the upper limit to 24 weeks. The amendments also overrule the fetal viability clause and permit abortion for fetal handicap up until birth. The ILP Act is now irrelevant in English law.
Case law (law defined by court cases as opposed to parliamentary statute) often seems to be led by pragmatism - a desire for the best outcome. A judge may interpret the law in a ‘new’ way to allow for the situation before him. This is particularly relevant in a case such as Bourne’s, where public sympathy was in his favour and the law seemed out of date. The new interpretation sets a precedent against which future cases can be measured. Following Bourne any doctor could act the same way, under sufficiently similar circumstances, without fearing criminalisation.
There is an old adage that ‘hard cases make bad law’, yet it is often the hard cases that drive law reform. In many ways this is unavoidable as hard cases inherently raise questions about the current law and are effective in proving a point. Lobbying bodies such as the ALRA support difficult cases, firstly because they believe the case is unjust, and secondly because they can use the case to prove that the law is unfair, out of date, and needs to change. This kind of campaigning has been seen more recently with the Voluntary Euthanasia Society’s (VES) support of Diane Pretty.
Before pro-lifers use the ‘hard cases make bad law’ saying as a criticism, we should look at the arguments used by our side. Using hard cases is a common method of fighting causes on both sides: recent coverage of late abortion and abortion for fetal abnormality has been effective in questioning the limits of the current law. However, with any hard case we should consider the various solutions to the problem, and recognise that democratic consensus may be impossible to achieve.
The ALRA was founded in 1936 by a group of women seeking to repeal ‘the present abortion law and substitute one freeing the medical profession from all legal restrictions except those required by medical or humanitarian considerations.’ Although R v Bourne was a triumph for them, abortion was still not widely available. They continued campaigning, but the Second World War and associated population decline meant their cause was not a political priority.
Throughout the 1950s the press became increasingly sympathetic towards the ALRA’s views. Abortion was powerfully brought to the nation’s attention by the thalidomide cases of 1959-62. Thalidomide was introduced to the UK in 1958 as a ‘wonder drug’ for insomnia, colds, coughs and headaches. It was also used to alleviate the symptoms of morning sickness. However, an increase in the numbers of babies born with missing or stunted limbs was linked back to the drug. Pregnant women who had taken thalidomide and were at risk of having a baby with deformities were often keen to abort. It became obvious to the ALRA from the press coverage that their cause was no longer a minority movement, but had mass support.
With abortion back on the agenda, the ALRA was reinvigorated with new, younger members, including men, married parents and a number of high profile figures. They set a clear agenda: to increase their media profile and use the media to gain public sympathy, widen their membership and financial support, and up the ante in Parliament. 1964 saw a change in the Parliamentary make-up as the Labour party returned to rule under Harold Wilson. This government had a strong liberalisation emphasis; the laws on homosexuality, capital punishment, abortion and divorce were all changed during their time in office.
Each year at the start of the parliamentary session, a ballot is held and the twenty Members of Parliament (MPs) whose names come out top are allowed to introduce a Private Member’s Bill to the House of Commons on a subject of their choice. In June 1966 David Steel drew third place in the ballot and introduced the Medical Termination of Pregnancy Bill to the Commons.
Steel’s bill underwent considerable discussion and amendments before it successfully passed into law as the Abortion Act 1967. Its passage was helped by two previous bills that had passed through the House of Lords. In 1965 and 1966, Lord Silkin introduced bills to legalise abortion - the first time Parliament gave significant attention to the abortion laws. The Lords discussed the bills in depth and amended them extensively to try and find a law that would be acceptable. The ALRA assisted Silkin and when Steel agreed to take up their cause, Lord Silkin dropped his bill so they could focus their energy on the Commons. Silkin’s bills meant that those in favour of reform already knew the hurdles they would need to overcome to get a bill passed into law.
Parallels could be drawn with recent attempts by Lord Joffe to get a bill legalising assisted suicide through the Lords. Whether he is successful or not, he has done a lot to raise awareness of the issues, promote debate and provoke public sympathy. If a supportive MP was fortunate in the ballot for Private Members’ Bills, we could see a euthanasia bill successfully pass through the Commons.
A number of lines of argument were used to persuade Parliament that abortion should be legalised. These focussed primarily on the hard cases: rape, extreme poverty, grave risk to the mothers’ life and serious fetal abnormality. The concerns voiced and the assurances given are interesting in light of the way medical practice has developed since.
The ‘social’ clause in Steel’s bill first appeared the previous year in Silkin’s bill. A main argument for the clause was ‘backstreet abortion’ and the dangers inherent in cheap, illegal terminations. Tragic cases were cited and annual numbers ranging from 14,600 to 250,000 estimated. Set against the image of the ‘overstrained wife’ was the injustice of a different rule for the rich - an amenable gynaecologist could always be found to carry out a safe, sterile termination, providing the price was right.
The intention of the social clause was to enable safe and free access to legal abortion for women in difficult situations. Steel asserted that it was not his intention to ‘leave a wide open door for abortion on request.’ Rather he saw this clause as a just response to a social problem.
There were predictions that abortion on demand would inevitably follow. The BMA, Royal College of Obstetricians and Gynaecologists (RCOG) and other professional bodies were concerned that the doctor’s role would shift from medical decision-maker to arbiter of social issues. It was suspected at the time that this would prove unworkable and the woman’s attitude to pregnancy would be the ultimate determinant of whether she received an abortion. The bill’s supporters rebuked these fears: ‘it is only in extreme cases that a woman wants to terminate her pregnancy.’
David Steel recognised the logical force of the two extreme views and argued that the role of legislation was to ‘find a balance between’ the extremes. Perhaps this is inevitable in a society with diverse beliefs. However, when the pro-abortion side continue to lobby for increasingly liberal laws, we must strive for positive law reform, whilst recognising practically that we may never reach an ideal situation.
The social clause was eventually dropped from the bill, but effectively reappeared in section 1(1)(a) of the 1967 Act: ‘continuance of the pregnancy would involve risk… of injury to the physical or mental health of the woman… greater than if the pregnancy were terminated’ with the section 1(2) proviso that ‘account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.’
The passage of time demonstrates that abortion is effectively available on demand. About 98% of the annual 181,600 abortions in England and Wales are carried out under this clause. The RCOG now views abortion as a ‘healthcare need’,and in their About Abortion Care booklet for women using abortion services they state, ‘Most doctors feel that the distress of having an unwanted pregnancy is likely to be harmful and so will refer a woman who does not want a baby for an abortion.’
Section 4(1) of the 1967 Act permits that ‘no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment…to which he has a conscientious objection.’ This does not apply to emergency procedures. This was not in the original bill, but was introduced in response to concerns that doctors would be under pressure to perform terminations against their beliefs. Interestingly, one amendment that didn’t make the final Act proposed that, ‘no person [shall be]…deprived of, or be disqualified from, any promotion or other advantages by reason of the fact that he has such conscientious objection.’
The experiences of doctors practising in this area are difficult to gauge beyond individual reports of discrimination,[14,15] but professionals accept that one of the Act’s consequences is to ‘discourage doctors with certain convictions from attempting to follow a career in hospital obstetrics.’ CMF surveyed its members in 1996 and found that 9% of 372 doctors thought they had been discriminated against in obstetrics and gynaecology or anaesthetics because of their views about abortion. Whilst the BMA ‘abhors’ discriminatory behaviour, others will argue that physicians have a duty to provide socially sanctioned procedures. If there truly is a rising tide among junior doctors against overuse of the Act, this issue will become increasingly salient.
In the 1966 debates one reformer said that, ‘it is quite wrong for any doctor to put his ethical reasons before the consideration of his patient.’ However, the conscientious objection clause was a concession that had to be made in order to get the legislation passed. The ALRA website today states that, ‘The 1967 Abortion Act was a huge step forward, but it does not go far enough…Women should not be forced by law to rely on the decision of their doctors who are sometimes influenced by moral rather than medical judgement.’ Their intention is clear. However much philosophers may try to deny the ‘slippery slope’, and reformers assert that regulations will prevent it, it seems to me they must be either profoundly naïve, or knowingly lying.
With thalidomide fresh in everyone’s memories and new research into the effects of rubella infection on fetal development, there was a general acceptance in the 1966 debate that a woman should not have to continue with a pregnancy so tragically affected. However, there were concerns about how such decisions could be made; would it be a medical decision based on the child’s predicted quality of life, or the woman’s response to the predicted abnormality? If the former, how could ‘quality of life’ be predicted?
The likely increase in ability to detect fetal abnormality, including less severe complications, was recognised. Some questioned what the ‘serious handicap’ and ‘substantial risk’ of section 1(1)(b) would actually mean in practice.’ Reformers assured that abortion would only be allowed for ‘monsters’ and not for minor abnormalities. This remains an unresolved issue, recently highlighted by the case of an abortion at 28 weeks for cleft palate. If tested in court, will the law attempt to define a clear line? Or will they uphold the view of British abortion providers that: ‘When the law was passed it deliberately left this vague for the decision to be made between the woman and her doctors’?
Since the 1967 Act came into practice, we have seen increased acceptance of abortion for fetal abnormality and decreasing acceptance of minor disfigurements. In 2002 there were 1863 terminations for fetal disability (1% of the total); 376 of these were for Down syndrome, one for cleft lip and palate.
A number of the bill’s opponents argued that infanticide was a logical extension of legalised abortion. The bill’s supporters denied these fears; infanticide seemed like an inconceivable option. However, it is currently supported by a number of prominent ‘bio-philosophers’ whose writings are widely used to teach medical ethics to the doctors, lawyers and ethicists of tomorrow, and some of whom sit on key government committees. There seems to be a progression in which the inconceivable ideas of yesteryear become the debated options of today and the common practice of tomorrow. Under this influence, society’s attitude towards infanticide could easily change.
One prime issue that has never been settled is the status of the embryo. Politicians excused themselves from discussing this by admitting that agreement would never be reached. Yet they still felt able to legislate against preserving the embryo in the face of ambiguity, giving the benefit of the doubt to the pregnant woman rather than the embryo.
In some ways this is understandable, the woman is a tangible being who can express her concerns, and the fetus is utterly dependent on her. An influential paper at the time sought to define the fetus as an extension of the woman and therefore something that only she had the right to decide about. Pregnancy was referred to as ‘parasitic’, and the embryo was belittled as nothing more than ‘jelly’. Recent ultrasound imaging techniques reveal a very different reality.
Many express surprise that abortion is still being debated nearly 40 years later. The reformers thought that with time it would become such a part of the social structure it would cease to be questioned. In many ways it has: abortion is deeply ingrained in society. It only continues to be debated because some still believe it is both morally wrong, and damaging to society and individuals.
Pro-abortion groups continue to press for further liberalisation of the law. They argue that access to early abortion should be easier: the morning after pill and RU-486 are key to this side of the debate. It is prominent at the moment because of the media reaction to stories about late terminations. If early abortion was easier, they argue, late terminations would happen less. They still maintain that abortion should remain available up to birth for any reason if the woman desires it, although admittedly some don’t agree with this extreme agenda.
In the face of this ongoing debate, I often wonder what a wise Christian response should be. I sometimes feel a temptation to give up and say ‘this is the way society’s going, so let’s leave it to run its course’. Yet we have a duty to speak out for those who cannot defend themselves. There is also evidence from the recent media furore that the tide of public opinion may be turning in part. We need wisdom to know where to focus energy in the most needed areas.
One theme I picked up while reading about the 1967 Act is the importance of supporting the positive alternative. In the 1960’s the debate was driven by the social problems stemming from unwanted pregnancies. Where were the churches and the Christians then? Instead of helping women in difficult situations, the Christian agenda in part drove legal reform through the moral undercurrents that stigmatised single mums, pregnant teenagers, and family planning.
Concerning his opponents, David Steel said that ‘if they could devise some other means by which abortions would stop tomorrow...they would have a strong case.’ To devise ‘other means’ requires foresight and action on our part. Similarly now, as our government considers legalising euthanasia, we need to support and encourage the palliative care movement. We may well be successful in blocking a change to the law, as happened in the last review in 1994. Even if not, euthanasia would hopefully fail to become mainstream because of better alternatives on offer.
Speaking in the 1966 abortion debate, one MP offered reluctant support for the bill saying, ‘Even if we come to the conclusion that it must proceed, in some measure the passing of the bill is bound to be a proclamation of defeat on behalf of the community...Let no one suppose that a bill of this kind can be a triumph.’ Having seen our community defeated once, will we stand and watch it happen again?