In this
new pamphlet, legal scholars explain why the attacks on Britain's abortion
service in 2012 were based on a misunderstanding of the law, both in spirit and
in practice.
Since the
1967 Abortion Act became law in April 1968, millions of women have had access
to safe, legal abortion in Britain. The Abortion Act made abortion legal when
two doctors agree in good faith (a) that the continuance of the pregnancy would
involve risk to the life of the pregnant women, or risk of injury to the
physical or mental health of the pregnant woman or of any existing children in
her family, greater than if the pregnancy were terminated; or (b) that there
was a substantial risk that if the child were born it would suffer from such
physical or mental abnormalities as to be seriously handicapped. The law
allowed doctors to take into account the woman’s ‘actual or reasonably
foreseeable environment’.
The 1967
Abortion Act, which still regulates abortion practice, did not grant women the
right to end an unwanted pregnancy. The Act gives doctors the discretion to
decide whether there are medical grounds to support a woman’s request for
abortion. The law does not allow a woman to end her pregnancy simply because
she wants to; there must be evidence that the pregnancy would threaten her
physical or mental health or that of her children.
Nevertheless
the law can be interpreted liberally by doctors who understand that it is
detrimental to a woman’s health to force her to endure a pregnancy and to
become a mother against her will. The vast majority of abortions end unwanted
pregnancies and are carried out by doctors who accept that it is damaging to
the physical or mental health of a woman to force her to endure a pregnancy
against her will. The papers in this publication explain that this
interpretation is entirely within the spirit of the Act. Indeed, it is arguable
that without such liberal interpretation the Act would have been unworkable.
Events in
2012, however, appeared to throw into question the interpretation of the
Abortion Act, as it has stood for over 40 years. This questioning was prompted
by a ‘sting’ operation launched by the Daily Telegraph newspaper in
February 2012, which claimed
to find that
three doctors acted illegally by authorising abortions for reasons of ‘sex
selection’. The newspaper investigation was followed by a three-day series of unannounced
inspections by the
healthcare regulator, the Care Quality Commission (CQC), in March 2012 –
instigated by the Secretary of State for Health Andrew Lansley in response to
concerns that some abortion doctors were signing the HSA1 abortion forms in
advance of the patient having been assessed.
Over the
course of these events, many statements were made about the legality of current
abortion practice that were based on a misinterpretation of both the letter and
the spirit of the 1967 Abortion Act. The ensuing confusion has had two
significant consequences.
One is
that doctors involved in abortion care have become nervous about their everyday
practice, as it no longer seems clear what is legal and illegal, or which
aspects of standard abortion practice may be suddenly highlighted as
problematic by the regulators. This extends throughout the abortion service, to
nurses, midwives and managers; and to other doctors working in gynaecology or
psychiatric services, who are not directly involved in abortion care but may be
called upon to provide the ‘second signature’ on HSA1 forms.
Another
consequence has been that some critics of abortion law feel justified in
criticising the British abortion law for being ‘badly drafted’, or the abortion
regulations for being weakly enforced.
The
papers in this booklet have been written by academics and lawyers to clarify
the British abortion law, through explaining both its origins and its
application today. These papers explain that, far from being ‘badly drafted’,
the 1967 Abortion Act was very carefully worded to provide doctors with the
discretion to manage the abortion question, according to their own professional
judgement. The abortion regulations, similarly, are designed to support the
law, which has at its heart the discretion of the doctor.
There is
no ambiguity to the law, nor has there been any failure in its ability to act
as Parliament intended when it was passed in 1967. Where there has been a
failure is in the ability of many in 2012 to understand the law correctly. This
booklet aims to correct this failure of understanding, and reassure medical
professionals where they stand in relation to the authorisation of abortions in
Britain today.
We begin
with a ‘Q&A’ section designed to correct some of the recent confusions.
This is followed by four short papers, written by academics and lawyers and
which were presented at a briefing for doctors and policymakers at the Medical
Society of London on 27 June 2012. Other material in this booklet includes the
text of relevant law and regulations pertaining to abortion, official
correspondence, and letters written to official bodies and to the press in
order to correct the misinterpretations of the law.
In 2013,
rumblings are beginning of further attempts to distort the facts around
abortion law and practice, as it relates to terminations of pregnancy for fetal
anomaly. For this reason we include a commentary by Jane Fisher, director of
the charity Antenatal Results and Choices, explaining the legacy of the Joanna
Jepson case of 2003, following which doctors have become more wary about
carrying out lawful terminations on these grounds.
Download Britain’s Abortion Law: What
it says, and why for free here.
This article was originally written by Jennie Bristow, bpas conference and publications manager, for bpas Reproductive Review.