Abstract
The Government has recently blocked the possibility of reforming UK abortion law, removing a valuable opportunity to improve a desperately outdated piece of legislation.
The Abortion Act 1967: an outdated law
The roots of the Abortion Act 1967 lie in a series of stereotypes about the kind of woman who would seek to terminate a pregnancy. In just one example taken from the vivid imagery that pervades the parliamentary debates of the late 1960s, Lord Silkin paints a striking picture of the kinds of women who seek to terminate pregnancies.
There are women who suffer from illnesses, which … will … make [them] less able to bear the burdens of motherhood… There is the case of the woman who is in prison, serving a long term commencing between the beginning of the pregnancy and the time at which she will give birth. Obviously that woman is inadequate to be a mother of a child. There is the persistent offender, or the shop-lifter, and there is the mother who has in the past been found guilty of neglecting or ill-treatment of her existing children. These are some of the cases I have in mind. There is the drug taker or the alcoholic. … There is the woman who already has a large family, perhaps six or seven children … There is the question of the woman who loses her husband during the pregnancy and has to go out to work, and obviously cannot bear the strain of doing a full day's work, and looking after a child. There is the woman whose husband is a drunkard or a ne'er-do-well, or is in prison serving a long term, and she has to go out to work. These are the cases I have in mind … 1
The sad and desperate images relied upon by the liberalizing reformers of the 1960s can be contrasted against the kinds of women envisaged by those who opposed reform of abortion law, who tended to offer a rather different depiction of such women as selfish, irrational and immature.
People must be helped to be responsible, not encouraged to be irresponsible. … Does anyone think that the problem of the 15-year-old mother can be solved by taking the easy way out? … For goodness sake, let us bring up our daughters with love and care enough not to get pregnant and not let them degenerate into free-for-alls with the sleazy comfort of knowing, ‘She can always go and have it out’. 2
While Parliamentarians thus offered varying accounts of the typical woman seeking abortion, it is not surprising that they found common ground in the view that such a woman was not capable of making her own reproductive decisions. At no stage of pregnancy, they legislated, should a woman be legally entitled to an abortion. Rather, she should be encouraged to visit her GP, who could help and support her, ultimately deciding on her behalf whether termination of the pregnancy was justified. In making these decisions, doctors were charged to take account of women's actual and reasonably foreseeable environment. This indicates a belief that doctors remain the best judges even when abortion is sought not for medical reasons but also, as is far more commonly the case, when the decision is grounded in a complex set of social and personal considerations. Other provisions of the 1967 Act equally reflect the popular anxieties and medical practices of the 1960s: only doctors should perform abortions and then only in a limited range of kinds of places. Further, the Act was only to apply to England, Wales and Scotland. Northern Ireland was left with an almost complete ban on abortion.
How different do things look 40 years on? Apart from some minor amendments, introduced in 1990, the Abortion Act survives unaltered. Some 2000 Northern Irish women each year are forced to travel substantial distances to terminate pregnancies. The question of who can perform abortions and where they can do so is determined not merely with reference to patient safety and welfare, as is the case for most other procedures, but remains restricted. And finally, women still have no legal right to make their own termination decisions at any stage of pregnancy. Yet while the Abortion Act has remained largely unchanged, the kinds of stereotypes upon which it was predicated are far from persuasive to modern ears. What we know about the women who choose to undergo abortions is that, while some demographic groups (in particular younger women) are more heavily represented, women who choose to terminate pregnancies come from all fertile age groups, all social classes and all income brackets. Indeed, some of the resistance to a liberalization of abortion law appears to stem precisely from distaste for the fact that abortion has become part of the mainstream, an accepted and necessary – if often painful – part of contemporary life.
Forty years on, it is not only these stereotypes regarding the ‘kinds’ of woman who would seek to terminate a pregnancy which are dated and unconvincing. We also think rather differently about the appropriate conduct of the medical relationship, being less accepting of the ‘doctor knows best’ brand of medical paternalism prevalent in earlier decades. Today, good medical practice attaches far greater weight to patient autonomy. Autonomy is not the only significant ethical principle at play here and respect for autonomy does not require a doctor to offer a patient a treatment that is not medically indicated or is prohibitively expensive. However, when society has long accepted that abortion should be permitted within certain time limits, taking women's reproductive autonomy seriously does mean that it should be women who make their own decisions within those limits. Abortion should be treated like other medical interventions, both insofar as any restrictions would have to be justified by considerations of patient welfare (or rationing in the NHS sector) and insofar as there should be patient choice within the clinically accepted options.
This is not to suggest that abortion decisions do not differ in important ways from other medical treatment decisions: they are, of course, distinguished by the fact that they involve deliberately ending the life of a fetus. Here, I share the view of the majority of the British public that while the fetus is not a full moral person of equal status to the pregnant woman, embryonic human life is morally significant. It is also true that abortion decisions are distinguished from many other medical decisions in another sense: they will often involve a deep reflection on the desired shape of one's future life. (Am I ready to become a mother? Would we be good parents? How would having another child affect my existing children and my ability to care for them?) But while these important differences exist, they cannot support the utterly disparate treatment of abortion and other medical procedures reflected in the existing legal framework. These differences mean that abortion decisions are morally significant. Yet where we should beg to differ from the Parliament of the 1960s is in challenging its view that women are not capable of being trusted with morally significant decisions.
Indeed, the fact that abortion decisions are serious, with potentially far-reaching implications is all the more reason for believing that it is pregnant women themselves who must make them. The women concerned are more likely to agonise over abortion decisions and they are better placed than doctors to be able to understand the implications of the decision for their own lives and the lives of those closest to them. It is these women, moreover, who will live with the consequences of the choice made. Doctors are not always well-placed to make the fine-grained social judgements currently demanded of them by the 1967 Act. Further, any perception of a need to convince the doctor of the merits of one's case is hardly conducive to the medical encounter functioning as an occasion where one can discuss frankly one's concerns, doubts and options. Finally, it should be noted that the majority of doctors agree that the legal right to make these decisions would best be taken from them and given to the women concerned: both the British Medical Association and Royal College of Obstetricians and Gynaecologists are in favour of substantial liberalization of the law. 3
A missed opportunity
Given the above, it is deeply regrettable that the first realistic opportunity in almost 20 years for MPs to discuss liberalizing the Abortion Act has recently been lost. Amendments, which had been tabled to the Human Fertilisation and Embryology Act (2008), would have allowed Parliament to vote on the removal of the need for two doctors' signatures to authorize abortions performed before 24 weeks; the extension of the Abortion Act to Northern Ireland; permitting suitably trained nurses and other health-care professionals to carry out abortions; the extension of the range of locations where abortions can take place to primary care level; and permitting women the choice to be at home to complete early medical abortions. 4 These amendments were supported by an evidence base which suggests that such reforms could contribute to easing access to abortion services, enhancing patient choice, reducing waiting times and bringing down the gestational age at which abortions are performed. 5 Their net effect was to ensure that abortion services could be provided in line with good medical practice, prioritizing patient autonomy, safety and welfare.
Rather than allowing Parliament to vote upon liberalizing reform, however, the Government chose to table (and whip support for) a programme motion, changing the order in which amendments would be called for discussion. Combined with a guillotine on the time allowed for debate, the result was to ensure that there would be no chance to discuss the abortion law amendments. In blocking any chance for these amendments to be discussed, the Government showed scant concern for the right of a democratically elected Parliament to debate and decide a matter which is accepted by all sides to be of profound importance. And, with Parliament set to take its longest Christmas break since records began, it is clear that ample time could easily have been found to accommodate this discussion. 6
Supporters of the programme motion have suggested that including amendments relating to abortion law might have led to the derailing of this flagship piece of Government legislation in the House of Lords. Yet it is impossible to find any empirical basis for such assertions in previous Lords' voting patterns. 7 Concerns were also expressed that, as a matter of principle, amendments relating to abortion had no place in this particular Act and that an issue of such importance is worthy of careful deliberation and debate in its own right. Yet, successive governments have refused to allow parliamentary time for such discussion to take place and the present Government is no exception, clearly stating that there are no plans to introduce a Bill dealing specifically with abortion. 8 As such, the issue at stake was not so much whether abortion might properly be discussed in the context of the 2008 Act; it was whether such discussion should be permitted at all. Furthermore, it is strange that these same concerns did not lead to the blocking of a number of amendments which sought to limit the 1967 Act by bringing down the upper time limit in the legislation: a series of restrictive amendments were voted on – and defeated – during the Bill's second reading. Those who wished to restrict women's access to abortion services were thus able to air their arguments in Parliament, while those who voiced the need to extend it were blocked.
Why then did a Government keen to assert its record on women's rights and public health seek to block this reform? With no official explanation provided, we are left to speculate. It has been rumoured that blocking liberalizing abortion law reform (including the possibility of extending the Abortion Act to Northern Ireland) was the necessary quid pro quo for securing the successful passage of the Government's controversial provision allowing 42 days detention without charge, which was only attained with the support of the Democratic Unionist Party.
9
This has been denied.
10
Yet if this rumour is unfounded, that leaves us with the more mundane but equally shameful explanation that the Government simply does not accept that the 1967 Act is in pressing need of reform. Ann Furedi, Chief Executive of the UK's largest abortion service provider, reports that:
Ministers and officials at the Department of Health have repeatedly said to us that they see no need to change the law because it is possible to ‘work around’ its deficiencies. This is not good enough. The law as it stands undermines the delivery of safe, evidence-based abortion services.
11
If this is the real explanation, it means that the Government is happy to ignore the recent, evidence-based finding of the House of Commons Science and Technology Committee regarding the lack of justification for current restrictions requiring two medical signatures, and limitations on who can perform abortions, and where they can be performed. 12 It also suggests that the Government believes that the fact that most doctors take a permissive interpretation of the terms of the Abortion Act means that we need not worry too much about the scope which the legislation clearly offers for the exercise of discretion of those who are less liberally inclined, regardless of the possibility that this may impact most heavily on the most vulnerable women. 13 Finally, it means that the Government is not concerned by the point of principle: that the regulatory framework established in the Abortion Act is grounded in tired, inaccurate and sexist stereotypes of female irrationality, selfishness and moral immaturity.
On the most innocent interpretation of the Government's motivation for derailing these amendments, then, we see a casual brushing aside of Parliament's right to debate this issue, and scant regard for women's health and women's rights to make their own reproductive decisions. It appears to have been very clear to those behind the programme motion that reform of abortion law was of less significance than the important changes to the regulation of infertility treatment services and embryo research introduced by the Human Fertilisation and Embryology Act. This will be far less clear to abortion service providers left to ‘work around’ the deficiencies of the 1967 Act, or the 200,000 women each year who rely on their help.