Monday 8 July 2013

Britain’s Abortion Law: What it says, and why

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.

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