Too long in gestating: an overdue inquiry into the Abortion Act

Whatever your view of abortion, there are too many abortions, and too many of them are too late. Even abortion’s fiercest advocates don’t pretend that it’s a Good Thing – just the lesser of two evils.

In 2010 there were 189,574 abortions in England and Wales – an 8% increase in a decade. The tightly policed regime envisaged in 1967, when the Act became law, hasn’t existed for ages, if indeed it ever did. There is abortion on demand, whatever the statute book says.

1967 was a long time ago. There have been many medical advances and societal changes since then. It’s time to take stock of the Act.

That’s what a recently announced cross-party commission, to be chaired by Fiona Bruce MP, will do.

It will focus, rightly, on two issues: medical advances and attitudes to discrimination.Section 1 of the Act provides that:

‘(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 opinion, 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 a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.’

Why, if abortion is prima facie justifiable, should there be any limitation by reference to gestation? (s. 1(1)(a)). The usual justification is in terms of fetal viability. If that’s the case, then, since fetuses are, with the help of modern medical technology, capable of surviving if delivered before 24 weeks, the 24 week limit should be revised downwards.

That’s not the only way of justifying the limitation, though. It might be justified by reference to the physical or emotional damage that would be done to the mother by late termination (the psychological bond between mother and fetus tends to strengthen as pregnancy advances), or by the emotional damage done by late terminations to the clinicians who would have do them. There is widespread distaste for late procedures, even among those clinicians who are wholly committed to the practice of abortion per se.

What about the discrimination issue? Well, one way of re-framing s. 1(1)(d) is: : ‘a ‘normal’ fetus is protected by the law from 24 weeks of gestation, whereas a seriously physically or mentally handicapped fetus can lawfully be killed.’ Again, one doesn’t have to be an opponent of abortion for that proposition to raise legal eyebrows. It is not ethically satisfactory (and should not be legally satisfactory) to say simply: ‘The 24 + weeks fetus is a non-person, and so the usual criteria which forbid discrimination in the case of a born human should not apply.’ That 24  week fetus might be pushed immediately a few inches southwards, survive, and thus be invested with all the protection of the law, including Article 2 of the ECHR (the right to life), Article 14 (which prevents discrimination in the way that Convention rights are considered), and the Equality Act 2010.

Of course there is lots to say about all this. Should one, in the name of one’s liberal attachment to the principle of non-discrimination, force a woman to shoulder the physical, emotional and financial burden of bringing up a badly disabled child? Should the State, if it wishes to enshrine its own respect for that principle, take that burden upon itself? And so on. The answers are not obvious. But it is obvious that the questions should no longer be dodged, and it is encouraging that they are finally being faced.