The Association of Lawyers for the Defence of the Unborn
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| Newsletter No 10 Summer 1981 |
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
Summer 1981
Number 10
News and Comment
Congratulations and Criticisms
Congratulations to our members in Scotland, in the Isle of Wight and in Scarborough. In all these places our members have been active in sending out our blue leaflets "Justice for the Unborn Child". As a result we now have more than 42 Members in Scotland, and the Scottish branch of the Association is going ahead with all possible speed. We have also doubled the membership in the Isle of Wight. Results from Scarborough are not yet in. We repeat our request to members in other towns to adopt this policy, and we hope that as a result many more members will be enrolled before our next newsletter.
Congratulations also to the French Public Prosecutor, as a result of whose firm action eight doctors from a Paris abortion clinic were given prison sentences in March. "The Times" report of the case said :-
"in his summing up the Public Prosecutor condemned all who practised illegal abortion habitually. He rejected the political argument that the clinic had dealt with cases of distress which state hospitals refused to handle".
How fortunate are the people of France, where prosecutors enforce the law regardless of political arguments, and state hospitals apparently refuse to accept any trivial reason as justification for providing criminal abortions. When will the prosecuting authorities and hospitals in this country follow suit?
We must once again criticise the Department of Health and Social Security for disregarding breaches of the law relating to abortion. Recently the Department investigated the activities of a certain Welsh hospital, which provides abortions. The investigation revealed that only about 30% of abortions performed in that hospital are notified, as required by s.2 of the Abortion Act 1967. In each of the remaining 70% of cases, amounting to around 200 a year, the serious criminal offence of failing to notify an abortion had been committed. The D.H.S.S. had all the details of each of these criminal offences, but so far as we have been able to discover the evidence has been suppressed, and these summary offences have all gone unpunished. This is one more piece of evidence that far more abortions are being provided by doctors than are actually notified. The fact that the D.H.S.S. apparently wishes to conceal this from the public must also be a cause for grave concern to those who wish to see the rule of law upheld in this area.
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The Nature of the Unborn Child
We can only hope to achieve our objective of defending the unborn child, if we clearly understand the nature of the unborn child. We are not concerned to defend what has been variously described as "a blob of jelly" or "a part of the mother". By the unborn child we mean a human life in being before birth.
In the course of the debate last year on Mr. Corrie's Bill, Mr. David Ennals compared the unborn child to the kidneys or the eyes, and said that although the kidneys and the eyes were alive no one would put forward the argument that no part of a live human being should be removed in any circumstances. A live child, he said, was a child capable of sustaining a separate and independent existence from the mother. This specious argument showed a total ignorance of the true nature of the unborn child. An eye or a kidney is an organ of the mother's body, and will never become anything but an eye or a kidney. An unborn child is never an organ of the mother's body. From conception he or she exists as another human life in being, and will in due course become an adult human being, unless death intervenes. This point was recently put very well by Professor Sir William Liley, F.R.C.O.G., in a speech in which he said as follows:
"One hour after the sperm has penetrated the ovum the nuclei of the two cells have fused, and the genetic instructions from one parent have met the complementary instructions from the other parent to establish the whole design, the inheritance of a new person. The one cell divides into two, the two into four, and so on, while over a span of 7 or 8 days this ball of cells traverses the fallopian tube to reach the uterus. On reaching the uterus, this young individual implants in the spongy lining, and with a display of physiological power suppresses his mother's menstrual period.
This is his home for the next 270 days, and to make it habitable the embryo develops a placenta and protective capsule of fluid for himself. By 25 days the developing heart starts beating, the first strokes of a pump that will make 3,000,000,000 beats in a lifetime. By 30 days, and just 2 weeks past mother's first missed period, the baby, one quarter of an inch long has a brain of unmistakeable human proportions, eyes, ears, mouth, kidneys, liver and umbilical cord and a heart pumping blood he has made himself.
By 45 days, about the time of the mother's second missed period, the baby's skeleton is complete in cartilage not bone, the buds of the milk teeth appear, and he makes the first movements of his limbs and body — although it will be another 12 weeks before mother notices the movements. By 63 days he will grasp an object placed in his palm, and can make a fist".
The life of every one of us can be traced back to one starting point and one only, the moment described by Professor Liley when the sperm penetrates the ovum.
It is this young individual which this Association exists to protect from the moment of conception, and all the efforts by Mr. Ennals, and his successors at the D.H.S.S., cannot prove that the child is anything other than a human being from that moment.
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Annual General Meeting 1981
Saturday 20th June at 2.00 p.m.
Our Annual General Meeting this year will be held in the Canterbury Room of the Charing Cross Hotel in the Strand, adjoining Charing Cross Underground Station in London. As members who have attended previous Annual General Meetings will know, this is a practical working meeting at which important decisions affecting the future of our Association are taken. We hope all members who are concerned to see the Association grow and flourish and succeed in its objectives will attend. Please give as much advance notice of your intention to attend as possible to our secretary, so that the appropriate arrangements for seating and a cup of tea can be made.
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A Report on action taken by A.L.D.U. to implement our third aim
The following article by our secretary Mr. Bowles sets out some of the work done by the Association in seeking to uphold the Rule of Law.
From the time that eight lawyers, most of us strangers to one another, set up A.L.D.U. in May 1978, A.L.D.U.'s Committee has worked hard to implement the Association's four Aims. Now that three years have gone by, we feel that not only our members (whose number is rapidly approaching the 1,000 mark), but also the many other readers of these A.L.D.U. Newsletters, may like to know something of our efforts in connection with our third Aim, namely
"to oppose any further erosion in the protection which the criminal law still affords to the unborn child".
It will be seen at once that efforts to implement this Aim of ours are, in essence, simply efforts to uphold the Rule of Law, about which we published important articles on the inner pages of our Winter 1979-80 Newsletter (Number 4) and of our Summer 1980 Newsletter (Number 6). We hope that what follows will show that the Committee has taken all reasonable steps open to it, even if the story does little or nothing to increase anybody's confidence in the competence and integrity of those public figures whose duty it is to see that the law is properly enforced in an impartial and disinterested way.
Firstly, let us recall that by section 2 of the Prosecution of Offences Act 1979, the Director of Public Prosecutions is "superintended" by the Attorney General. In 1978, when A.L.D.U. was founded, the position was the same; the Attorney General who then superintended the D.P.P. (Sir Tony Hetherington Q.C.), was Mr. Sam Silkin Q.C., while since May 1979 the superintending Attorney General has been Sir Michael Havers, Q.C.
Government policy and the Rule of Law
Secondly, let us recall some words from the Conservative Manifesto 1979 (on which the present Government won the May 1979 General Election) and some subsequent authoritative words. In an important chapter entitled "the Rule of Law", to be found on page 19 of the Conservative Manifesto, we read that
"the most disturbing threat to our freedom and security is the growing disrespect for the Rule of Law",
and we also read that the present Government is pledged to restore respect for the Rule of Law and to give
"the right priority to the fight against crime";
as for
"violent criminals and thugs"
— we read that
"really tough sentences are essential".
Our hopes rose when, in her first public speech as Prime Minister, Mrs. Thatcher declared at Perth on 12th May 1979:
"the fight against crime will be pursued with relentless vigour and total commitment".
We noted those words carefully; the fight against crime would be pursued not just with vigour and commitment, but with "relentless" vigour and "total" commitment. Coming on top of what was said on page 19 of the Conservative Manifesto about the importance of detecting crimes and of better crime prevention measures, one could hope that really close investigations would thereafter be made into the alleged "good faith" of doctors signing abortion forms, and that an end was in sight for the attitude that doctors were above the law and that everything, even the Rule of Law, had to take second place to a doctor's "clinical judgement". In Eastbourne on 14th February 1981, the Prime Minister again spoke in favour of the Rule of Law, claiming that her Government:—
"Supports a society in which the Rule of Law is upheld and where order protects the weak".
With all these points and all these fine words in mind, let us now see how things have been working out in practice for the child before birth, and how the Rule of Law has been upheld as regards the protection to which they are legally entitled.
An inexcusable betrayal
One of the first betrayals occurred in the House of Commons at the Second Reading of the Abortion (Amendment) Bill introduced by Mr. John Corrie, M.P. At 2.02 p.m. on Friday 13th July 1979, the new Minister for Health Dr. Gerard Vaughan trotted out the hoary old chestnut about there being "an upper time limit of 28 weeks" for abortions. Only a few weeks earlier on the 14th March 1979 his predecessor in the Labour Government had stated the law on this point with admirable precision in an official D.H.S.S. letter* to an M.P. This serious mis-statement of the law by Dr. Vaughan to a crowded and attentive House of Commons was, therefore, totally inexcusable. It also indicated that the new Secretary for State at the D.H.S.S., Mr. Patrick Jenkin, was likely to adopt a cavalier attitude towards the unborn. Nor was he likely to pay too much attention to the duty and the discretion laid on him by section 3 (1) (d) of the National Health Service Act 1977 to care for "young children", a phrase which clearly includes those whose lives are still protected by the Infant Life (Preservation) Act 1929. And indeed the practice of"" the D.H.S.S. from this time onwards has borne out this first impression.
After very careful thought, and on the advice of a Conservative M.P., we wrote to the Lord Chancellor in September 1980 to protest about Dr. Vaughan's statement misleading the House of Commons. The Lord Chancellor replied courteously, confirming that it was our duty to report any evidence of criminality of which we were aware, and reminding us that he did not support the Abortion Act 1967. Our letter to him, however, provoked an astonishing correspondence with the Minister for Health, which indicated that he and his top advisers at the D.H.S.S. had failed to grasp that the reference to "28 weeks" in Section 1 (2) of the Infant Life (Preservation) Act 1929 is merely concerned with a minor point about evidence (and in any case is of no practical importance in these days of rapidly-advancing medical skills and techniques).
In a letter dated 7th November 1980 Dr. Vaughan told us that he did not agree that he had mis-stated the law, and that he was very sorry if his words had been "misinterpreted". In fact his words in lines 6, 7 and 8 of column 944. of Hansard for the day in question (Friday 13th July, 1979 could scarcely have been clearer.
A resolute refusal to prosecute
Again, on the 28th July 1979 a remarkable article by Victor Tunkel was published in the British Medical Journal, which drew attention to a whole mass of illegalities which were taking place. Following this a London doctor had a letter published in the 15th September 1979 issue of the B.M.J., in which she admitted referring for termination "anyone who requested it". We wrote to the Attorney General on 1st October 1979, asking him to use his superintending authority over the Director of Public Prosecutions, and to see that further enquiries were instituted with a view to prosecution being brought. Not until 15th February 1980 did we receive an acknowledgment of this letter of ours, from a member of the Attorney General's chambers. The writer went to some trouble to say nothing about our request. On the point in question all he could bring himself to say was :— "I have your letter of 1st October 1979".
When one considers that Mr. Tim Rathbone, M.P., speaking on behalf of the D.H.S.S. on the 18th December 1979, told the Standing Committee considering the Corrie Bill that
"abortion on request is certainly not in accordance with the law",
the coyness of the Attorney General becomes immediately understandable. So far as we are aware, the doctor in question has still not yet been charged, or even arrested, and the Rule of Law has suffered one more serious blow in this episode.
In the meantime we were in correspondence with the Director of Public Prosecutions over the assertion in a B.B.C. Radio 4 "World at One" programme by a certain abortionist from the East End of London that he and his colleagues administered poison — urea — into the wombs of pregnant women. He said that he did this with the explicit purpose of ensuring that their babies would be dead rather than alive when they emerged from the birth canal, after a prostaglandin infusion had ensured a premature delivery.
We pointed out that this administration of urea was in effect a clear admission that the baby was believed to be "capable of being born alive". In reply the D.P.P.'s office contented itself by saying that it had "nothing further to add" to its letter to us of the 18th May 1979. This simply said that there had been "very few references" to them under the 1929 Act; but that the facts of each case were considered carefully, and that a prosecution was brought when the evidence "and the merits" justify it. We wrote and asked what was meant by the word "merits", but did not receive a reply. If a member of the I.R.A. stated on the B.B.C. that he was daily killing people in London, would the D.P.P. refuse to take any action against him on the grounds that there had been "very few references"? Where stands the Rule of Law, when men like this have the duty of enforcing it?
We also asked the Director of Public Prosecutions to obtain from the Secretary of State (Mr. Patrick Jenkin) a copy of a most revealing letter dated 9th April 1979 which a certain Mr. C. Banks had written to Mr. Jenkin about the killing, in his constituency of Wanstead, of Karen Rose's little boy on 12th October 1978. We suggested that this be done with a view to a prosecution being initiated under the rule in West's case (R.-v-West, 2 C & K 784). Once again the Director could not bring himself to say anything at all about this. In reply to a request to release to us the papers in the "Whiston case" (a case where a baby was allegedly killed by doctors in Whiston hospital, Merseyside, on 4th January 1979), he indicated that he was not prepared to do so.
Fortunately the efforts by Sir Michael Havers and Sir Tony Hetherington to allow doctors as free a hand as possible to behave as they like in exercising their "clinical judgement", and in contravening sections 1 and 2 of the Abortion Act 1967, have not gone unnoticed in Parliament. Members of Parliament have protested in the House of Commons about the thousands of instances of Section 2 of the Abortion Act 1967 not being complied with. 4,651 cases were referred to on 8th February 1980 in the House, prompting the Minister for Health to make the statement at the end of April 1980 that he had "made sure that every abuse that has come to our notice has been fully investigated", a remark which must be treated with a considerable amount of scepticism.
Another deliberate attempt to mislead M.P.s
Despite the protests by this Association, the D.H.S.S. appears to be continuing its policy of deliberately misleading M.P.s about the basic facts relating to pregnancy and abortion. The most recent attempt, which this Association has been concerned to expose and refute, has been in two departmental letters to M.P.s. The first dated 28th November 1980 was from the Minister of Health, and the second dated 6th March 1981 was from the joint Parliamentary Under Secretary of State at the D.H.S.S. The tenor of these letters was that, to quote from one of them,
"Until implantation has occurred abortion cannot take place because there has been no conception or carriage".
The three leading Medical Dictionaries all state that conception is "the fertilisation of the ovum by the spermatozoon", and the Oxford Concise Medical Dictionary also points out that this happens in the "fallopian tube". Any doctor knows that implantation only occurs in the womb, several days after the fertilised ovum has begun the journey down the fallopian tube.
Why should the Minister for Health and the Joint Parliamentary Under Secretary of State wish to mislead fellow Members of Parliament in this way? It is submitted that the clue to this is to be found in the current drive by doctors to perform what are known as "morning after" abortions; and that these are attempts to shield doctors who provide such abortions from prosecution under section 58 of the Offences against the Person Act 1861.
This interpretation is consistent with the decision by the Minister for Health (reported on page 11 of the Daily Telegraph on Saturday 13th December 1980) to authorise the destruction of the records of abortions notified to the D.H.S.S. under the regulations referred to in section 2 of the Abortion Act 1967. The destruction of these records can have only one purpose, which is to deprive prosecutors of invaluable evidence needed for the trial of doctors charged under section 58.
This Association will continue to monitor the situation with the utmost vigilance and to protest at each and every attempt by the D.H.S.S. to protect doctors who are knowingly taking part in criminal offences. All members of the Association are asked to let us know if evidence of criminal offences by doctors comes to their attention, so that the Association can take these matters up where appropriate. Members are also urged to protest to their own M.P.s whenever the opportunity of doing so arises.
* Mr. Moyle stated: "As far as my Department is concerned there has never been any doubt that an unborn child, capable of being born alive, has the full protection of the law, by virtue of the Infant Life (Preservation) Act 1929".
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Not the last word
Our Secretary, in our Summer 1980 Newsletter (Number 6) expressed the view that termination of pregnancy by a person who was not a medical practitioner was a crime. The House of Lords has now ruled by a majority of 3 to 2 that it is not (Royal College of Nursing -v- Department of Health & Social Security [1981] 2 W.L.R. 279). We respectfully agree with the editorial comment in the Solicitors' Journal of 6th March 1981 on this decision. After pointing out that all three judges in the Court of Appeal, and Lords Wilberforce and Edmund-Davies in the House of Lords, took the restrictive view (i.e. the view expressed by our Secretary), the editorial said, "We find Lord Wilberforce's speech so persuasive that we cannot see the scope for the opposite view". The editorial concluded by suggesting this case should not be the last word on the subject.
Indeed it need not be. The R.C.N. have the remedy for the situation in their own hands. Every nurse has a moral duty not to participate in abortion operations, by virtue of her vocation to save life. Such a duty binds in conscience, and she also has the legal right not to take part in such operations by virtue of section 4 of the Abortion Act 1967. All that the R.C.N. needs to do it to remind members of the duty imposed on them by their vocation, and it will become clear to all that Lords Diplock, Keith and Roskill in the case referred to did not have the last word after all.
A comparison of the results of the Abortion Act 1967 with the claims of its sponsors
Those who oppose repeal of the Abortion Act 1967 do so on the ground that it has achieved what its sponsors intended. In the following article our Vice-Chairman, Mr. Robin Haig, analyses this claim in the light of statements made by the sponsors of the Act at the time. The concluding half of the article will appear in our Autumn Newsletter.
Nearly thirteen years after the Abortion Act 1967 ("the Act"), which was known before its enactment as the Medical Termination of Pregnancy Bill ("the Bill"), came into force in April 1968, this Report is written with the aim of assessing to what extent the Act has fulfilled the purpose for which it was passed. Its effect is examined in relation to the declared intentions of its supporters. Unless otherwise stated, the quotations are taken from Hansard for Friday 22nd July 1966, on the occasion of the Second Reading of the Bill in the House of Commons.
1. "We want to stamp out the back street abortions" (Mr. David Steel, column 1075). It was Mr. Steel who introduced the Bill, and the need to eradicate back street (i.e., illegal) abortions was mentioned several times during the debate. Mr. Steel went on to say :
"Experience in Sweden, .... that following reform of the law illegal abortions still take place, suggests that in Sweden they have not overcome this difficulty". (Column 1075).
He suggested that certain provisions in his Bill might avoid the "difficulties" experienced in Sweden.
The figure for illegal abortions were variously estimated at anything between 40,000 and 200,000 a year, (column 1071). But the Lane Committee Report in 1974 said that at no time had it been practicable to calculate accurately the number of illegal abortions performed either before or since the passing of the Abortion Act (Vol. 1 para. 503). Woman Detective Chief Inspector Brenda Reeve, in a most illuminating article published in the "Police College Magazine" for Summer 1973 stated that she felt that the incidence of illegal abortions since April 1968 had increased quite considerably; that an estimate based on evidence acquired in investigations was that twice as many abortions were performed as were quoted in the national statistics; and that many of the abortions that were notified were in fact illegal. This points to a truly colossal number of illegal abortions still being performed.
The fact of the matter is that illegal abortions have not been eradicated, but have probably increased enormously since the passing of the Abortion Act; the Abortion Act, has failed in this cardinal objective.
2. "It is very much a question of one law for the rich and one law for the poor" (Mr. Roy Jenkins at column 1142). "The (present) law is one law for the rich and one for the poor" (Mrs. Renee Short, at column 1163). "Any law which means one law for the rich and another for the poor is in itself unsatisfactory and should be examined" (Mr. David Steel at column 1071).
The Office of Population Censuses and Surveys prepared an analysis of abortion data in terms of groups of occupation for the years 1968-1973 and the results are shown below; later figures are not available. (See table below). These categories do not necessarily correspond with social class, but the results of the analysis do show that by far the majority of those obtaining abortions, even with a liberal abortion law and free abortion facilities, are the middle/ well-off class rather than the working/poor class.
If the reason for this is that the poor have more respect for the family and human life, this makes nonsense of the argument that the law should be changed so as to enable them to have as many abortions as the rich.
Residents in England and Wales
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Table of abortions by social status
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1968
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1969
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1970
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1971
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1972
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1973
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Professional
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645
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1100
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1737
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1976
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2305
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2228
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Intermediate
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3522
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6871
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10456
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13266
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15485
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15502
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Skilled
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8167
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18190
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28566
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35711
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40145
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40779
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Semi-skilled
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2324
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5573
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8420
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10995
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12794
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13745
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Unskilled
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735
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1800
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2956
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3531
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4053
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4171
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Not Classified
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6939
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16295
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23827
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29091
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33786
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34143
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Total
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22332
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49829
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75962
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94570
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108565
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110568
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According to M. and A. Synn, in their article "Can Family Planning do more to reduce Child Poverty"?, published in "Poverty", Summer 1974, the social class distribution of abortion in respect of resident women for 1971 was as follows :
Social Class
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Abortions per 1000 women aged 15 to 44
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Abortions to
unmarried women
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Abortions to married and
unmarried women
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1 and 2
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3.7
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7.8
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3
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3.2
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6.2
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4 and 5
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2.0
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4.9
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The position therefore seems to have been just as unbalanced in 1971 as it was before the Act came into force. Even if it was not, the fact that one section of the public was able to evade the law more easily than another would not, in any other matter, have been seen as a reason for relaxing the law. It would have been seen — and rightly seen — as a very good reason for tightening it.
3. "One of the illogicalities of the present situation is that the law is so vague that some doctors adopt one attitude and other doctors adopt a different one", (Dr. John Dunwoody, at column 1097).
These words suggest that the passing of the Abortion Act would remove illogicality and vagueness and bring a much-needed clarity into the law of abortion. But the reference in section 1 (1) (a) of the Act to a "risk to the mental health of the mother or any of her existing children" is as vague and imprecise as anything could be. It is not surprising that these words have been interpreted in widely-differing ways by doctors. Abortion practice varies considerably throughout Britain, depending on the individual doctor's interpretation of these and other vague words in the Act.
This is clearly shown in the different figures for abortions carried out in National Health Service hospitals in different parts of the country, (see the Office of Population Censuses and Surveys Monitor). For example, 4819 abortions were carried out in 1979 in the Northern Regional Health Authority on women resident there. 4761, (i.e. over 98%) were carried out in N.H.S. premises, and only 58, in non-N.H.S. premises. The corresponding figure for the Mersey R.H.A. is 4059 abortions. Of these 1181 (i.e. 29%) were in N.H.S. premises, and 2878 in non-N.H.S. premises. This demonstrates the different interpretation of the Abortion Act taken by N.H.S. doctors in different areas.
4. "The Bill is purely permissive. It requires no one to act in a way that his or her conscience forbids", (Mr. Edward Lyons at column 1090).
It is now generally accepted that doctors who declare that they will not carry out abortions will not be granted gynaecological posts, making a mockery of the pious words of Mr. Lyons. As was pointed out in the very first Newsletter of this Association, this disgraceful attitude is officially encouraged.
To be concluded
The Association of Lawyers for the Defence of the Unborn accepts the undisputed findings of modern embryology that human life begins at conception. The Association therefore holds that natural justice requires that the unborn child, no matter how young, should enjoy the same full protection of the criminal law as is enjoyed by his or her mother or by any other human being.
