Abortion and Autonomy: the case for decriminalising

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Introduction

“Ireland has changed utterly; The cruel eighth amendment is history” wrote Ivana Bacik for the Guardian in May 2018.[1] The amendment of the Irish constitution granting the ‘legalisation’ of abortion was hailed a constitutional revolution which brought Irish law up to date with that of England and Wales. Ironically, the [2] is thought to have ‘legalised’ abortion in England and Wales; yet it does not permit the termination of an unwanted pregnancy. Thus, despite the long campaigned-for repeal of the eighth amendment, abortion laws are out-of-date across the United Kingdom and Northern Ireland. This essay will argue for the reform of abortion laws to reflect twenty-first century standards and practice, which ultimately demands the decriminalisation of abortion, enabling medical professionals to manage abortion under medical guidelines and not the criminal law. Part one of this essay will review current abortion laws, it will then go on to discuss why abortion is not criminal. Finally, this essay will conclude by proposing the decriminalisation of abortion based on a model such as that in Victoria, Australia.

 

Current Law:

The Offences Against the Person Act 1861 previously made abortion illegal. Any woman who attempted to procure her own abortion and found guilty could be “kept in penal servitude for life.”[3] The 1967 Abortion Act provided some light relief by legalising abortion in a certain set of circumstances which are now inconsistent with modern day demands and practices.

Section 1 of the 1967 Abortion Act states that an abortion is available to a woman when two medical practitioners have determined that the continuance of pregnancy would cause physical and/or psychological harm to the woman, or the child would be born severely handicapped.[4] A literal interpretation of the legislation would prevent abortion on socioeconomic terms. Thus, out of the 19,0406 abortions carried out in England and Wales in 2016, only 2% were carried out on the grounds that the child would be born seriously handicapped; over 97% were under section 1(1)(a), 99.8% of which were due to risk of the woman’s mental health with an unspecified mental disorder.[5] Overwhelmingly, the data illustrates that the law does not reflect the reasons for abortion and thus such interpretations of the legislation circumvents the enacted intention of parliament, namely that abortions are not available when the pregnancy is unwanted.

Abortion is not criminal:

The Abortion Act 1967 does not belong in the realm of criminal law: an abortion is a medical procedure. It is wholly unethical to demand legal authorisation from two medical professionals before an abortion can be legally enabled. The impartial, unbiased requirements the GMC imposes on doctors in their professional capacity is ultimately opposed by the Abortion Act 1967. In effect, bureaucracy takes precedence over medical treatment and care, illustrating why, for both practitioner and patient, the law needs to be reformed and ultimately decriminalised.

In other areas of modern medicine, consent is paramount, as exemplified in cases such as St George’s NHS Trust v S,[6] where a woman who did not consent to a C-section could not be medically forced to endure the procedure, even if refusal risked her own life and that of her child. The case confirmed that a patient with sound mind has the right to refuse medical treatment, the ultimate expression of autonomy. The case further illustrates the law’s prioritisation of the rights of the mother above that of the foetus. Conversely, a woman of sound mind should have the right to ultimate control of her choice to have a child, without refusal from a medical professional. Such a point was respectfully made by Lady Hale in Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland),[7] when she stated that for many women, becoming pregnant is an expression of that autonomy, the fulfilment of a deep-felt desire. But for those… obliged to carry a pregnancy to term against their will there can be few greater invasions of their autonomy and bodily integrity’.[8] Lady Hale’s judgement is a sympathetic view of much larger issues regarding the foetus and its legal protection.

In Glanville Williams’s article, ,[9] Williams dissects the polarised debates of ‘pro-life’ versus ‘pro-choice’. Williams largely confines the discussion to differences in religious ideology, which is centralised in the debate for the legalisation of abortion in a heavily catholic ‘pro-life’ Ireland. Despite such moral, religious disagreement regarding the creation and sanctity of life, life legally begins when the foetus is entirely extruded and can breathe independently.[10] Henceforth, before twenty eight weeks gestation,[12] thus it is perplexing that medical professionals make moral decisions about the autonomy and future lives of pregnant mothers and their unborn children, despite the lack of legal protection afforded by the law. Religion does not necessarily have an exclusive claim on morals, for morality would be giving a woman an autonomous right to access an abortion above her/societies religious preference.

 

The British Pregnancy Advisory Service is calling for a change to the law; Anne Furedi, Chief Executive of the BPAS, says that, “we are a society that trusts women to make their own choices when faced with an unplanned pregnancy or a pregnancy they cannot continue with, and we need an abortion framework which reflects that”.[13] Above all, the law does not need a reason for the authorisation of an abortion; the law should provide a framework in which abortion can be obtained safely, free of judgement, and characterised by choice.

 

Alarmingly, sections 58 and 59 of the Offences Against the Person Act 1861 continue to enforce the highest sanction of a self-procured abortion throughout Europe.[15] The statutory infrastructure which once framed dangerous backstreet abortions in the mid-Victorian era no longer fits modern day practice. As such, there is no longer a requirement for statutory legislation, the Offences Against the Person Act[16] fits no purpose which cannot be achieved by medical guidelines, its archaic language is ill fitting with modern medical practice and social standards alike. By creating more accessible, less personally intrusive abortions, the strains imposed by the law on medical professionals and patients alike would be alleviated.

 

 

 

Abortion treatment across the world:

Evidently, the law of the United Kingdom has developed towards a more legalised framework from absolute criminalisation, but change has stagnated: fifty years later it is time for the decriminalisation of the Abortion Act. Rebecca Gomperts, a Dutch doctor who provides abortion services from her boat by sailing into international waters, commented on the British abortion system saying, “we have British women in abusive relationships, whose boyfriend will beat the hell out of her if he finds out she is pregnant and wants an abortion. Now, that’s in a country where abortion is legal.”[17] Evidently, the progressive stages of total legalisation of abortion is vastly disparate around the world, but the evidence suggests that beyond the current abortion laws in the UK, women who are the most marginalised and vulnerable in society are already fearful of abortion. The process as it stands does not alleviate the discomfort surrounding the situation, which is why women often seek illegal abortions. Sally Sheldon captures this writing, “while women are not harmed by safe, legal abortion, however, they are significantly and demonstrably harmed where the enforcement of restrictive criminal laws obliges them to seek out illegal terminations”.[18]

Whereas, the decriminalisation of abortion in Victoria, Australia has had a profound effect on the health of its women. Section 4 of the Abortion Law Reform Act 2008 made abortion entirely legal in VictoriaClearly the law prevents hindrance to the woman obtaining a safe abortion within the gestational limits regardless of her reasons for abortion. The Victoria model could be used in the UK, to be placed in medical GMC guidelines, and not the criminal law, in order to control safe abortion procedures centred around medical care and not criminal sanction. By implementing a system such as that in Victoria, women in Britain would be liberalised and have greater control over one of the most important decisions of their life, whilst medical professionals could appropriately and impartially do their job without question of their own ethics and integrity. A reform would safeguard women against a law that, in 2018, is fifty years out of date.[19]

 

Conclusion:

The repeal of the eighth amendment in Northern Ireland was a step in the right direction; however, it is evident that the decision to authorise abortion is vested in medical professionals, not for medical purposes, such as determination of gestation, but for reasons which in turn question their ethical conduct not required in any other area of modern medicine. The decriminalisation of abortion would autonomise and empower women to take control of their own bodies against a draconian, punitive law, which fifty years ago brought relief, but now brings trepidation.

[1] Ivana Bacik, Ireland has changed utterly: the cruel eighth amendment is history’ The Guardian (London, 28 July 2018).

[2] Abortion act 1967, s1

[3] Offences Against the Person Act 1861, s58.

[4] Abortion Act 1967, s1.

[5] Report on abortion statistics for England and Wales 2016. (2017). [online] Department of health and social care. < https://www.gov.uk/government/statistics/report-on-abortion-statistics-in-england-and-wales-for-2016 > Accessed 27 Sep. 2018.

[6] St George’s Healthcare NHS Trust v S: R v Collins, Ex parte 2 [1999] Fam 26, [1998] 3 All ER 673.

[7] Re Northern Ireland Human Rights Commission’s Application for Judicial Review (Northern Ireland) [2018] UKSC 27.

[8] ibid, 6.

[9] Glanville Williams, ‘The Fetus and the ‘Right to Life [1994] 53 C.L.J, 71, 80.

[10] C. v. S. [1988] Q.B. 135 (Hcilbron J).

[11] Before twenty-eight weeks gestation the law affords no legal protection to the unborn, as per s1(2) of Infant Life (Preservation) Act 1929.

[12] Attorney General Reference (No. 3 of 1994) [1997] 3 All ER 936.

[13] Abortion rate stable, changes in procedure highlight need for abortion law reform (BPAS, 17 June 2017) <https://www.bpas.org/about-our-charity/press-office/press-releases/abortion-rate-stable-changes-in-procedure-highlight-need-for-abortion-law-reform/ > accessed 1 September 2018.

[14] Offences Against the Person Act 1861, s58, s59.

[15] K Nebel and S Hurka, ‘Abortion: Finding the Impossible Compromise’ in C Knill, C Adam and S Hurka (eds), On the Road to Permissiveness? Change and Convergence of Moral Regulation in Europe (OUP 2015).

[16] Offences Against the Person Act 1861.

[17] Helen Rumbelow, ‘Rebecca Gomperts: If men could get pregnant there wouldn’t be abortion laws’ The Times (London, October 22 2015) < https://www.thetimes.co.uk/article/rebecca-gomperts-if-men-could-get-pregnant-there-wouldnt-be-abortion-laws-d68jmltf9zf >accessed 20 September 2018.

[18] S. Sheldon, ‘The Decriminalisation of Abortion: An Argument for Modernisation’ (2015) 36 Oxford Journal of Legal Studies 334, 365.

 

[19] 2018 marks fifty years since the introduction of the 1967 Abortion Act.

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