By Dr Liz Wicks, Reader in Human Rights Law, School of Law, University of Leicester
Abortion is an emotive and controversial topic. It is the type of issue with which the law must grapple in order to reconcile the conflicting views held by members of society. The law cannot avoid the issue for a deliberate termination of pregnancy must either be a lawful act, perhaps viewed as within the scope of a woman’s personal autonomy, or it must be legally regulated so that some (if not all) such procedures are unlawful. If it is to be regulated, there are many questions to be confronted, such as whether the criminal law should be involved, whether the legal position should change as the pregnancy progresses and, most challenging of all, the grounds on which a termination of pregnancy should be permitted.
The law on abortion in England and Wales can be found in a series of Acts of Parliament. It reflects, therefore, the majority views of our elected representatives at the time the Acts were passed. The framework of the relevant law is set by the Offences Against the Person Act 1861 – yes, 1861 – which creates a criminal offence of ‘procuring a miscarriage’. This old law remains in force meaning that, in practical terms, every abortion today (although not, incidentally, the use of the so-called morning after pill) is, prima facie, a criminal offence for which both the doctor performing it and the woman choosing it may face significant criminal penalties, including imprisonment. If this scenario does not match your impression of the legal position, it is because of the broad statutory defences to this criminal offence, subsequently created by Parliament in the twentieth century.
The Abortion Act was initially passed in 1967 and then later amended in 1990. Its current form permits lawful abortions on a number of grounds, any of which must be certified by two registered medical practitioners in order for the doctor and the woman to avoid criminal responsibility. The grounds relate mainly to the pregnant woman’s health, so that if her physical or mental health would be harmed by continuation of the pregnancy, an abortion will be permissible. (There is also a, frankly bizarre, reference to the health of any of the woman’s existing children). The other justifying factor for a lawful abortion is the so-called ‘foetal abnormality’ ground. This enables a termination of pregnancy to be legally permissible if 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.’ A lawful abortion can be obtained within England and Wales, therefore, if the health of either the pregnant woman or the foetus justifies it, in the view of two doctors. It is a long way removed from abortion on demand.
This account of the legal position may still not accord with your intuitive sense of what is permitted in contemporary society and that it because the law’s emphasis on health has been interpreted in an extraordinary manner so as to permit, in effect, abortion on demand in the early stages of pregnancy. This is because, within the terms of the Abortion Act as amended, there is a partial time-limit. Many people have heard of the 24 week limit and may perhaps assume that this stage marks the boundary between when an abortion is permitted and when it is not. That is not the true legal position, however. The 24 week limit relates to only one ground for abortion. If the abortion is chosen on the basis of a risk to the life of the woman, or to grave and permanent injury to her physical or mental health, or on the foetal abnormality ground, then there is no time limit imposed by the law. The pregnancy could be legally terminated at 40 weeks in a manner that led to the death of the foetus and that procedure would be entirely lawful. (There may well be both ethical and clinical limitations, of course.) The 24 week limit does, however, prevent lawful abortions on the lesser grounds of a mere risk to the physical or mental health of the pregnant woman falling short of grave and permanent injury. This ground, with its 24 week limit, has been interpreted in such a broad manner that it is now widely labelled as the ‘social ground’. It appears that in practice it is easily satisfied if a pregnant woman requests an abortion. Continuation of an unwanted pregnancy might well be regarded as posing a threat to the woman’s mental health. In practice, it appears that an abortion in the early stages of pregnancy is relatively easy to obtain (in legal terms). In each case, however, two doctors are signing forms certifying that the abortion is on the grounds of the woman’s health; if they failed to do so, the woman would face conviction and possible imprisonment alongside the doctor performing or overseeing the procedure.
I suspect that there are a number of misconceptions about the legality of abortion. At no stage during a pregnancy is abortion available for any reason other than health (of the woman or foetus or her existing children); there is no strict time limit after which an abortion is not permissible; every abortion is a criminal offence unless the proper documentation is filed. The law is, it seems to me, both stricter (by focusing upon the woman’s health rather than her autonomy) and more lenient (by permitting abortions, on the more series grounds, at any stage in the pregnancy) than is widely perceived. The misconceptions are not surprising. The current law (which has been unchanged, despite much political bluster, since 1990) is inherently ambiguous. It strives to protect the foetus by continuing to utilise the criminal law to regulate a (common) medical procedure and yet prioritises the woman’s interests over that of the foetus throughout the pregnancy. The ambiguous legal position extends beyond the UK’s borders. The European Court of Human Rights, after over sixty years interpreting the European Convention on Human Rights, has yet to decide whether a foetus has any protection under the right to life.
The reason for such ambiguity, or indecisiveness, is, of course, obvious: society, both within the UK, and across Europe and the world, is divided on the issue. Until a consensus can be reached about whether, and in what circumstances, a termination of pregnancy is a matter of personal autonomy or a killing of a potential person (or, if both, which interest we are to prioritise), both the legal and the ethical position will remain ambiguous, inconsistent and frequently misunderstood. Perhaps it is time for us to decide.