Abortion ‘on grounds of gender’: Like it or not, the DPP was right

There has been a recent storm over the DPP’s decision not to prosecute two doctors in relation to their referral of two women for abortion. The cases were widely represented as cases of abortion on grounds of gender. They came to light in the course of an undercover investigation by the Daily Telegraph of practice in English abortion clinics ( see also here and here).

The DPP has published detailed reasons for his decision. They are well worth reading.

An abortion is only lawful if two medical practitioners are of the opinion, held in good faith, that one of the lawful grounds for abortion is made out. One of the grounds (overwhelmingly the commonest, and the one said to be relevant in both of the cases considered by the DPP), is that ‘the pregnancy has not exceeded its 24th 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.’: Abortion Act 1967, s. 1(1)(a).

The Act does not say anywhere that the gender of the fetus is a relevant criterion. But it plainly could be. Take two examples:

(a)        The fetus might have a very high chance of suffering from a profound sex-linked disorder.  

In such circumstances it may be possible to invoke another of the grounds for abortion. Section 1(1)(d) permits abortion where an opinion has been formed, in good faith, ‘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.’ But s. 1(1)(a) may also be in play. The woman and/or any existing children she may have, may be demonstrably unable to cope physically and/or mentally with a child with such a disorder.

(b)        The woman may have been told by her partner that, if she has a girl, the partner will kill both her and the girl.

Assume that abortion is performed. Each of these cases might look, at first blush, like a request for abortion on grounds of gender. But neither really is. Both are cases of abortion on grounds of ‘risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman’. Depending on the facts, the physical or mental health of existing children might fall to be considered too.

In one of the cases considered by the DPP (Dr. S), the doctor said that she did not believe the woman when she told her that she had discovered that the fetus was female. The doctor knew of no test that could demonstrate gender at the relevant stage. The woman told the doctor that she had had a previous pregnancy with a female fetus who proved to have a chromosomal abnormality, and that that pregnancy miscarried at 22 weeks. The doctor said: ‘A woman claiming to have discovered that the fetus is female when that is a scientific impossibility is plainly hiding the truth. It follows that the truth is likely to mean that there are serious problems surrounding the pregnancy such that a termination would be in accordance with the Act.

The doctor was accordingly saying that on the evidence available to her, the statutory criteria set out in s. 1(1)(a) were present.

One might question whether the doctor had conducted a sufficiently diligent enquiry into the evidence. But assuming she had, she was squarely within s. 1(1)(a).

In the second case (Dr R), the woman told the doctor the same story that she had told Dr. S. The woman said, according to Dr. R: ‘We don’t want a girl again because of the last time.’

Dr. R’s response was: ‘It’s like female infanticide, isn’t it?’, whereupon the woman asked if Dr. R could put another reason down. Dr R said that fetal gender as ‘not a good reason any time’, and put down on the statutory form that the woman was too young for a pregnancy.

It may be that Dr. R’s reasoning (although poorly expressed), was akin to Dr. S’s. If so, then, again, the main potential criticism is of the adequacy of the enquiry into the real reasons why the woman wanted an abortion.

The Code for Crown Prosecutors contains a two stage test for deciding whether or not there should be a prosecution. First: the evidential stage: is there sufficient evidence to provide a realistic prospect of a conviction? And second: if there is sufficient evidence, does the public interest require a prosecution?

The DPP concluded that in both cases ‘….there is just sufficient evidence to provide a realistic prospect of a conviction.’ But in neither case did the public interest require a prosecution. As noted, any prosecution would be based on the assertion that the doctors failed to carry out a sufficiently robust assessment of whether the risks to the woman’s health associated with continuation of the pregnancy were greater than those associated with termination. But it is not clear just what is expected of doctors undertaking the assessment.

‘….there was no guidance on how a doctor should go about assessing the risk of physical or mental health, no guidance on where the threshold of risk lies and no guidance on a proper process for recording the assessment carried out. The discretion afforded to a doctor in assessing the risk to the mental or physical health of a patient wanting an abortion is wide and, having consulted an experienced consultant in Obstetrics and Gynaecology, it appears that there is no generally accepted approach among the medical profession.

The expert makes clear that “The Abortion Act does not state explicitly that both or either medical practitioners are required to examine or indeed have any direct contact with the woman requesting the abortion, and this is reflected in the contemporaneous official certification….” This conclusion is drawn from form HSA/1 itself [the form used to record the decision of the two medical practitioners] which, on its face, permits a doctor to certify that he or she has formed an opinion about the patient’s reasons for wanting an abortion without either seeing or examining her.’

It is unclear to me why the vagueness of the obligation on doctors should be regarded as primarily relevant at the ‘public interest’ stage. I would have thought that this is an evidential issue: can the prosecution prove beyond reasonable doubt that the doctor’s decision was not reached in good faith? Indeed that appears to be recognised elsewhere in the DPP’s reasons. But, in fairness, the DPP said also that evidential and public interest criteria are unusually closely interwoven in such cases.

Unless you think that abortion should be wholly unregulated, you will have concerns about the findings of the Daily Telegraph and the facts about the practice of abortion revealed by the DPP’s investigation. These are the concerns:

(a)        The inquiries carried out by doctors into the question of whether the statutory criteria for abortion are met are often cursory.

(b)        The Daily Telegraph’s investigation found that HSA/1 forms were pre-signed. The DPP’s own enquiries revealed that this practice is widespread. .

(c)        Doctors have no clear guidance about what to do when assessing for abortion.

(a), (b) and (c) are worrying:

(i)         For women: there is often no well informed determination of whether abortion is in their best interests.

(ii)        For the rule of law: decisions about abortion seem often to be made without the degree of medical scrutiny envisaged by the legislature.

Anti-abortion activists will say that this debacle is a consequence of the elasticity of s. 1(1)(a), and that the section should be tightened, or at least that its exercise should be more rigorously policed. They are right about the policing. I make no comment on the elasticity, as drafted, of s.1(1)(a).  But they are wrong to claim that the Daily Telegraph’s investigation produced compelling evidence of abortion for gender per se. That claim misunderstands the mechanics of s. 1(1)(a). The DPP was right to conclude (or at least not obviously wrong to conclude) that there should be no prosecutions.  

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