The Association of Lawyers for the Defence of the Unborn
M. N. M. BELL, M.A.(Cantab.) Chairman
T. G. A. BOWLES, M.A.Cantab.) Hon. Secretary
40 BEDFORD STREET
LONDON
WC2E 9EN
Spring 1979
Number 1
The Structure of the Association
Since this Association was set up it has doubled its membership every two months, thus amply demonstrating the very wide concern felt in the profession about the appalling consequences of the Abortion Act 1967.
The Committee of the Association at present comprises four Solicitors, four Barristers, one Lecturer in Law, one Legal Executive and one Law Student.
It is intended that each of us will try to build up the membership of the Association within his or her branch off the profession. Any suggestions as to how this can be achieved more effectively would be most welcome.
Regional Organisation
Members of the Committee act as regional representatives for different areas of the country, though obviously we hope every ALDU member will take responsibility for building up membership in his or her town.
With this in mind, members are asked to plan, in liaison with the Committee, to hold regional meetings and eventually meetings in towns. One such meeting is planned for the Manchester area in the near future. We want to build up an active branch of ALDU in every town, and members prepared to undertake the formation of local branches are asked to contact our secretary.
Why such a Programme?
Because nothing less will enable us to achieve our aims. In effect we want to see the whole profession concerned about, and striving for, justice for the unborn child.
The present situation, where the protection of the criminal law is denied to a large section of the community, should be quite intolerable to professional lawyers.
To bring about such an attitude of mind in the profession. nothing less than a national network of lawyers committed to this objective is going to be adequate.
Our aims are not a dream. We intend to achieve them. Our planning is geared realistically to this.
Our Education Programme
This has two immediate aims :—
1. To distribute the pamphlet "Justice for the Unborn Child".
2. To persuade the profession of the injustice inherent in abortion through the legal press.
Distribution of Literature
We ask all members to make every effort to distribute "Justice for the Unborn Child", and where appropriate this newsletter, as widely as possible among their colleagues and friends.
In one town. Hull, it was recently sent to every solicitor. and new members were speedily enrolled as a result. The same sort of initiative is now being shown in other towns. and we very much hope members will consider doing this. So far over 2,000 copies of the pamphlet have been distributed, 5,000 have been printed. Our aim must be that every lawyer in the country should read it. Please write to our secretary and order as many free copies as you can use.
Educating the profession
We have had letters about the Association published in the Law Society's Gazette, the New Law Journal, the Solicitor's Journal, the Legal Executive and the Guardian Gazette.
The response to these letters has been most encouraging, and indicates clearly that there are large numbers of lawyers who share our views and are merely waiting to be contacted.
We ask members to take every opportunity to write letters in their individual capacity to these and other publications. Every letter makes a further impact on the profession and thereby makes the profession more and more aware of the injustice inherent in all direct abortion.
Advertising Programme
We are also mounting an advertising campaign in the main legal journals. Advertisements will be appearing every month while funds last. Their purpose is primarily to convince the profession that there is no way in which abortion can be reconciled with natural justice, or with the high traditions and principles of our profession and legal system.
No defence can be entered
Our opponents have no defence to our pleadings on behalf of the unborn, as is shown by the way in which they are forced to rely on slogans, and mere abuse, in their efforts to justify their indefensible position.
Our advertising will cost some £1,500 over the next twelve months. Needless to say donations from members towards the cost of this will be most gratefully received. A good numbers of members have sent a donation to ALDU on joining. To them we extend our most grateful thanks. But if we are to achieve our objectives we will need to be really generous. Donations are, of course, our only source of income.
The Erosion of the Rule of Law
There is no doubt that in the field of abortion, more than in any other area, the executive government of this country is at present driving a coach and horses through the intentions of the legislature.
It is quite obvious that the framers of the 1967 Abortion Act never intended that the Act should impose a duty on the N.H.S. to provide free abortions ad lib for 50,000 women a year. If they had so intended they would have said so.
In this newsletter some of the various ways in which the intentions of the legislature have been disregarded or deliberately flouted will be made clear. In brief, they are as follows :—
(a) The failure to stop the giving of medical certificates for abortions "on demand", although abortions following such certificates are clearly illegal.(b) The way in which the Secretary of State has blatantly disregarded his statutory duty towards the unborn child.(c) The way in which medical certificates given on grounds of mental health by people with no qualifications in this field are used to justify abortions.(d) The fact that the protection given by statute to a child capable of being born alive has been largely ignored.(e) The fact that certificates are so often not given "in good faith" as required by statute.(f) The way that the question of "viability" has been introduced, in complete disregard for the express words of the relevant statute.(g) The way in which the protection given by the Act to doctors and nurses whose consciences prevent them from participating in abortions has been rendered worthless.
(h) The way in which advertisements offering abortions without qualification have been condoned.
Such deliberate circumventions of the law by the Government are really an attack on the Rule of Law. Our section of the community is better placed than any other to recognise this. That is why we have a clear responsibility to oppose it. This Association accepts that responsibility.
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An examination of the alleged duty of the N.H.S. to provide free abortions
In effect the N.H.S. says that it need not look further than a certificate given by two doctors, stating that the balance of risk favours abortion, to found a duty to provide the operation.
ALDU believes that, for the reasons stated below, in the vast majority of cases no such duty exists, and that to provide abortions in such cases is accordingly a misuse of taxpayer's money.
Furthermore it is a misuse of hospital beds and facilities urgently needed for operations, which the State does have a duty to provide.
A certificate given "on demand" is not a certificate given "in good faith"
The 1967 Act provides that if two doctors are of the opinion formed in good faith that the balance of risk favours an abortion, then the surgeon who performs it is protected from prosecution.
However if one of the doctors makes clear (as many do) that he will always give a certificate to any woman who demands it, up to 28 weeks from conception, that is not a certificate given "in good faith" for the purposes of the Act.
The only way in which a doctor who signs a certificate "on demand", or without even seeing the patient, could claim good faith would be if he could show that there was no duty on him to form a clinical judgment in every case. But the fact that the Act requires a certificate to be signed by a doctor, rather than by a hospital official, implies that there is a clinical judgment to be made, and the further fact that it requires him in every case to obtain a second opinion only emphasises the importance it attaches to this.
Abortions following certificates given "on demand" are illegal abortions.
If either doctor signing a certificate lacks good faith the operation that follows is completely illegal (R. v. Smith (John) [1973] 1 W.L.R. 1510; [1974] 1 A.E.R. 376, C.A.).
Clearly the N.H.S. has a duty not to perform illegal abortions, and therefore a duty to be reasonably satisfied that neither doctor has signed the certificate on demand. Yet no such check is made. This in itself represents a breach of duty.
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The duty of the Secretary of State towards the unborn child
The Secretary of State has a statutory duty to provide proper facilities for the care of young children throughout England and Wales (see s. 3 (1) (d) N.H.S. Act 1977).
In acknowledgment of the fact that this duty extends to the child while still in the womb, he does in fact provide facilities for the care of the health of the unborn child in many hospitals.
Unless he alleges that the deliberate killing by direct abortion is one of the "facilities" which he has a statutory duty to provide for young children, which is absurd, every abortion represents an extremely grave dereliction of duty on his part.
Incredible though it seems, it is the Secretary of State himself, in his N.H.S. hospitals, who is deliberately, carefully and systematically providing the staff and equipment to kill the very people whom he is duty bound by statute to care for.
In another age this would have been grounds for an impeachment. In the reign of Elizabeth II it is the voice of this Association which will be heard ever more loudly demanding justice.
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An opinion about mental health given by a person unqualified in the subject cannot place on the N.H.S. a duty to provide an operation
The duty of the N.H.S. to provide an operation only arises where a properly qualified person has indicated that an operation is desirable.
If a chiropodist expressed an opinion that a man should have his appendix removed this would not justify the N.H.S. in providing an appendicectomy.
The 1967 Abortion Act provides various grounds on which a certificate may be given. Unless there is something physically wrong with a woman the certificate is usually given on the ground of the "risk to her future mental health" if the pregnancy continues (see s. 1 (1) (a) of the Abortion Act 1967). The woman is usually described as suffering "transient non-psychotic disturbance".
Nearly all such certificates are given by doctors with no qualifications whatever in the field of mental health. Maybe in some cases the doctors concerned could show good faith, so that the surgeon would be protected from prosecution. Nevertheless, such a certificate about mental health, given by a doctor with no qualifications in matters of mental health, cannot place on the N.H.S. a duty to provide an operation.
Government statistics indicate that this is the situation in over 80% of abortions performed, representing an appalling dereliction of duty and misuse of public funds.
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A child "capable of being born alive"
The Infant Life (Preservation) Act 1929 s. 1 (1) provides that "any person who with intent to destroy the life of a child capable of being born alive by any wilful act causes a child to die before it has an existence independent of its mother" is liable on conviction to life imprisonment.
The Abortion Act 1967 s. 5 provides that nothing in that Act shall affect the provisions of the 1929 Act.
From this it follows that if the child in the womb is capable of being born alive, he or she is given complete protection against abortion by the present law.
You can fool some of the people ....
The D.H.S.S. tries to get round this by saying that resuscitation facilities are available in abortion clinics for infants who survive abortion operations. Of course the whole point of this operation is to make sure the child does not survive, and an abortionist who saved a child would be regarded as having bungled the job.
In any event, no lawyer could be deceived by this argument. The Act protects children capable of being born alive, not just children who survive an attempt to kill them.
The opinion of a leading Gynaecologist
So the question is, when is a child in the womb capable of being born alive?
ALDU has obtained the opinion of a leading Gynaecologist on this point. He advises that with, e.g. a prostaglandin-induced labour, he would expect the baby to be alive when born, provided that the baby was aged 10 weeks or more. It would seem, therefore, that all abortions of babies aged 10 weeks or more are completely illegal.
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The risks involved mean that the requirement of good faith is almost always absent
"The Secretary of State has a duty to secure improvement in the physical and mental health of people." N.H.S. Act 1977, s.1.
The risk which pregnancy represents to the life and health of a normal healthy woman under 30 is statistically negligible. The likelihood that an abortion will do some damage to such a woman is quite high. In as many as 20% of cases the woman suffers some form of physical or mental damage.
These facts are so well known to everybody working in this field that it is difficult to see how a doctor could ever give a certificate in such a case in good faith.
Even if such a certificate were given in good faith, so protecting the surgeon, the Secretary of State could not possibly believe that to provide an abortion in such a case was a performance of his duty under s. 1 of the 1977 Act.
Yet many thousands of abortions are performed on such women in N.H.S. hospitals every year.
The surgeons who perform them must know that there is nothing physically wrong with the woman on whom they are operating, and they must know the risks involved in the operation. Why do they not question the good faith of the doctors? Surely their failure to do so must make them a principal party to the illegality.
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Viability irrelevant
The exact words of s. 5 (1) of the Abortion Act 1967 are :
"Nothing in this Act shall affect the provisions of the Infant Life (Preservation) Act 1929 (protecting the life of the viable foetus)".
The words in brackets are very strange. As already shown, the 1929 Act protects a child "capable of being born alive". It does not use the word "viable", a word which implies that the child can survive after being delivered and have a normal life span.
It looks as if someone was trying by the addition of the words in brackets to limit the protection given by the 1929 Act to viable children. However the words in brackets cannot affect the provisions of the 1929 Act, because they are immediately preceded by words saying that nothing in the 1967 Act shall affect the provisions of the 1929 Act.
Incidentally the statement in s. 1 (2) of the 1929 Act, that evidence that a woman has been pregnant for 28 weeks is prima facie proof that she is pregnant of a child capable of being born alive, is based on the medical knowledge of fifty years ago. 10 weeks would have been more accurate.
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The Role of an Independent Legal Profession
As an Association, and as individuals, we have a duty to oppose the misuse of its powers by the Government, in its promotion of policies not envisaged by the legislature. In particular we have such a duty when those who are victimised are unable to speak for themselves.
This is in the great tradition of the independent legal profession of this country. Lawyers have ever been the staunchest opponents of an executive which does not respect the law. and which has scant regard for the lives and liberties of its weakest subjects.
Making the truth known
What can we do as individuals? We can make the situation known as widely as possible, until this injustice is recognised as a national scandal and reproach. Members of ALDU should seek speaking engagements with all manner of organisations, not as representing ourselves, but the Association. We must never tire of pointing out the facts to our M.P.s, to our professional colleagues, to the D.H.S.S. (and to the D.P.P. if there is clear evidence of a specific illegality), to the national and local press, and to every forum of opinion with which we are associated.
When you have read this letter, please pass it on to your friends and colleagues. Further copies are available from the Hon. Secretary at the address at the head of the newsletter.
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The Victimisation of Conscience
By Section 4 (1) of the 1967 Act, those who have a conscientious objection to what the Act euphemistically calls "treatment", meaning the direct killing of children, are relieved from any duty to participate in abortion.
Yet on 19th February 1975 the Chief Medical Officer of the D.H.S.S. wrote to all Regional Medical Officers indicating that in certain cases the job description given to all doctors applying for a post should explicitly state that the post included a duty to undertake termination of pregnancies.
The South East Thames Regional Health Authority recently advertised for a consultant in obstetrics and gynaecology to commence work in January 1979. The job description stated "the consultant appointed will be required to participate in termination of pregnancies".
No room in the N.H.S. for honourable men?
The claim that there is a "duty" to provide abortions is examined elsewhere in this newsletter. But even if such a duty could be shown to exist, it is quite obvious that the D.H.S.S. is depriving conscientious gynaecologists of the protection the Act intended to confer, and sometimes depriving them of their very livelihood.
If members of ALDU have to advise a gynaecologist in such a situation, the opinion of one of our members, who is a Leading Counsel with experience in this field, is that the applicant would be entitled to take proceedings against the Authority for a declaration that they were acting ultra vires.
Meanwhile, we should all be very much aware of the shabby and disgraceful way in which honourable men are being excluded from the N.H.S. posts, regardless of their attainments and qualifications. We should take every opportunity to draw the attention of our colleagues and the public to this, because of the grave threat to the unborn, which this policy necessarily involves.
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Advertisements offering abortions
Advertisements which offer abortions without qualification continue to appear in magazines, in newspapers, in the London Underground, etc.
"An abortion is unlawful unless it complies with the conditions prescribed by the 1967 Act", para. 2628 Archbold, 39th edition.
Therefore such advertisements are, on the face of it, an offer to perform an illegal act. Protests to the Authorities bring the bland reply that the advertisements must be deemed to offer legal abortions only.
If someone advertised that he would perform break-ins for members of the public, would the Authorities say that such advertisements must be deemed to offer legal break-ins only? Of course not.
Therefore any member of ALDU seeing such an advertisement is asked to write to his M.P., or the prosecuting authorities, and demand action. If we all do it, there are enough of us to bring substantial pressure to bear.
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Aims of the Association
1. To uphold the honour of the legal profession by opposing forthrightly the erosion of human rights and natural justice which abortion necessarily represents.
2. By lucid presentation of the facts, to help all members of the profession to appreciate why no lawyer can in good conscience support abortion.
3. To oppose any further erosion in the protection which the criminal law still affords to the unborn child.
4. To strive to create a climate of opinion in the profession which will support full statutory protection against abortion for all human life from conception.
The Association of Lawyers for the Defence of the Unborn accepts the undisputed findings of modem embryology that human life begins at conception. The Association therefore holds that natural justice requires that a duty of care is owed to the unborn child from that moment no less than to the mother or father or any other human being.
