The Association of Lawyers for the Defence of the Unborn
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| Newsletter No 6 Summer 1980 |
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 1980
Number 6
News and Comment
Annual General Meeting
Our second Annual General Meeting took place on the 10th May, and the reports on progress given at the meeting were most heartening to all those who attended.
Our Chairman in his opening remarks emphasised that we are human beings first, and lawyers second, and that our humanity requires of us compassion, which must compel us to action. He outlined three ways in which we could act more effectively as individuals to promote the aims of the Association. First of all that it was vital that we write to the people we know, and the people who know us, and invite them to join the Association. If each member was to write to every lawyer whom he knows personally and invite him to join the Association, there is no doubt that many new members would be enrolled. A joint letter from several members in the same area is even more effective.
Secondly he emphasised that we must write to our community as lawyers, to our local papers and to the legal press, and to the leaders of our profession, pressing them to join us. There is no problem about this. We all write letters every day. It is just a matter of breaking through the barriers in our own minds, barriers of fear of human approval, or busyness.
Thirdly he emphasised that the most effective way to change the thinking of our profession is through advertising. The Association exists to enable us to do more effectively together what we believe in as individuals, and nowhere is this more true than in the field of advertising. However, if we are going to conduct an adequate campaign we have got to stop thinking about donations of £5 or £10. Many of us can afford little, and have given most generously. But if we are going to be effective those of us who can afford it have got to think in terms of giving £1,000, £500, or even £100. If each member just gave what they earn in one week, this would be more than enough. Even our savings can be used to help unborn children.
Our Treasurer in her report spoke of several ways in which we could raise funds, and a circular letter will be going to members about this.
The Chairman of our students' sub-committee told us that they had written to 75 Universities and Polytechnics in Great Britain telling the representatives of legal students about our Association, and asking them to display our literature on their notice boards. However, it is up to our members in the various universities and polytechnics to press their local representatives to display information about our Association, and to make it known to law students. We hope that every student member will make every effort to do this.
Our Secretary gave us a report on the activities of an extremely busy year. In particular he told of how one of our members, Mr. Gerard Wright Q.C., had addressed a conference in Rome of Pro-Life organisations, and of their warm support for this Association. He also told of the many letters written to public authorities pressing for the law to be correctly stated, and to be enforced. This campaign must obviously be intensified, because at present all the evidence available to this Association tends to show that the prosecuting authorities will not prosecute for any offence in connection with an abortion, provided the abortion is carried out in an "approved place".
Mr. Christopher Fradd, who is our committee member particularly responsible for Parliamentary affairs, said that he would like to hear from any member interested in helping to draft future abortion amendment bills. Mr. Fradd also represents this Association on the National Pro-Life Committee, which is a body particularly concerned with legislation to restrict abortion.
We had most encouraging reports from our representatives in the North West and in Wales. In the North West another conference is being planned in Manchester on October the 11th, which will follow the extremely successful conference there last year. In Cardiff our representative, Mrs. Trigg, has been active in arranging meetings for members in the area, and this is something which we hope representatives in all areas will try to achieve. Such meetings bring members together not only for discussion, but also for talks on different aspects of abortion, from medical speakers and others.
Our Secretary also told us about talks which have been given by members during the year. A number of our members have addressed various meetings of Pro-Life organisations, of students, of doctors and other groups. It is hoped that all our members will make every effort to obtain invitations from local organisations to address them on the law. The fact that this is widely misunderstood partly accounts for the way in which the protection which the criminal law still affords to the unborn child has been so widely eroded.
All members who attended were very encouraged by the reports of progress made during the past year. This did not, however, prevent a realistic assessment of how far we still have to go in achieving the aims which we have set ourselves. How quickly we achieve these aims depends entirely on how committed our individual members are to achieving them. A few of us have done a great deal. Many of us have done very little. The things that need to be done are clear. We strongly urge every member to order from our Secretary as many copies of our Newsletter and our blue leaflet as he or she can distribute, and to get these out to professional colleagues, as soon as possible. The literature is free. We are a strong Association of nearly 600 able and influential men and women. If we each resolve to do what we can, nothing can stop us from achieving our goals.
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A 'No Go' Area of the Criminal Law
It has always been a contention of this Association that a large number, probably the majority, of 'notified' abortions are in fact illegal. Since the date and place of each such criminal offence is notified to the authorities, along with the name of the criminal, one would expect thousands of prosecutions to take place every year for unlawfully procuring miscarriages. In fact prosecutions for notified abortions are almost unknown, and the only explanation for this can be that this has been designated a "no go" area by the Prosecuting Authorities.
To oppose this erosion in the protection which the Criminal Law still affords to the unborn was one of the reasons why this Association was set up. One of our objectives therefore has been to draw the attention of the Government and our Members of Parliament to this fundamental breach of the rule of law. We thought, perhaps naively, that our M.P.s were unaware that many thousands of illegal abortions were carried out every year by employees of, and under the licence of, the Department of Health and Social Security.
Debates exposed M.P.s' knowledge of wrongdoing
One of the most astonishing things to come out of the debates on Mr. Corrie's Abortion (Amendment) Bill was the fact that most of our M.P.s are well aware of this widespread criminal activity, and are apparently not in the least concerned that their own members should condone the breaking of laws which Parliament itself has made.
This is a serious accusation to make, and it is proper, therefore, that it should be substantiated by quotations with names and dates, and not by generalisations. We shall therefore proceed to quote from the debates themselves. There are two main criminal offences which are habitually committed in connection with the performance of abortion operations. These are procuring a miscarriage and child destruction. It is proposed to deal with these separately, and to show that M.P.s are aware that one or other of these offences is committed in a vast number of notified abortions.
The quotations which follow are taken from Hansard's Reports of the debates of the Standing Committee on the Bill, and the subsequent debates on the third reading of the Bill. M.P.s in favour of the Bill are shown with an asterisk, and those against it with a plus sign. Words in brackets do not appear in the original but are inserted for clarification.
Do M.P.s believe abortion on demand is illegal?
14th November 1979
+Miss Richardson: "We talk of abortion on demand. Abortion on demand is when a woman 'demands' an abortion. In my view that is impossible for any woman except those who go to the commercial sector. I have never had the need, or inclination, to find out, but if a woman who is well off and can afford an abortion in the commercial sector goes to a Harley Street Clinic and says, 'Doctor, I'm pregnant, and I want to have an abortion', I imagine that there is no argument at all."
Mr. Corrie: "Will the Hon. Lady accept that in those cases it was outside the law? Is that happening and do Hon. Members have evidence?"
Miss Richardson: "Certainly it is outside the law."
13th December 1979
*Mrs. Knight: "I am grateful to my Hon. Friend. There is absolutely nothing wrong, to my mind, in stating clearly what the situation is. I have no words of condemnation whatsoever for Mrs. Munday (of British Pregnancy Advisory Service) when she states absolutely categorically: 'I emphasise the stupidity of the suggestion that B.P.A.S. should provide the full range of alternatives to abortion. B.P.A.S. is unashamedly an Abortion and Fertility Control Providing service'. That is very frank and clear and I do not blame her at all. But this should be understood."
*Sir B. Braine: "The inference we can draw from that statement attributed to Mrs. Munday is that it (i.e. B.P.A.S.) has not changed or put its house in order, and that between 90 and 98% of women who present themselves for advice at a time when, by the very nature of their problem, they are in an emotional state and need the utmost support, go on and have abortions. This is abortion on request. It cannot be anything else. It is abortion on request, and this is illegal. It is contrary to law."
19th December 1979
Mr. Tim Rathbone (on behalf of the D.H.S.S.): "As at this morning's sitting, it may be helpful if I give the committee the benefit of one or two observations by the Department of Health and Social Security in the absence of the Minister who is in his sick-bed. My Hon. Friend suggested that the services provided by the charities amounted to abortion on request. As he said, abortion on request is certainly not in accordance with the law, and neither side of the committee would condone such a suggestion. But his suggestion implies, as I think he will realise, that a substantial number of medical men in notifying — as they are required to do — abortion operations, are mis-stating the grounds on which they were carried out."
Do M.P.s believe abortion on demand is widely available?
It seems clear from these speeches that M.P.s believe that abortion on demand is illegal. Is it also true that they believe that it takes place? The following speeches make it clear that they do.
12th December 1979 (Abortion in the Private Sector)
*Sir B. Braine: "For example in the P.A.S. report for 1973 it was stated that 98% of women approaching it for advice were referred on for an abortion. Of the 2% not referred for abortion the majority were too advanced for termination. B.P.A.S. told the Select Committee that its figure fluctuated but it said that it was well over 90%. When D.H.S.S. witnesses were asked whether this was tantamount to abortion on request, they gave no satisfactory answer."
14th November 1979 (in the Public Sector)
*Mr. Ancram (discussing a survey of gynaecologists published in July 1977): "I will come to that point now but before doing so I hope that the committee accepts that this was not a survey of anti-abortion gynaecologists. From the figures I gave over 70% of them had carried out abortions within 4 weeks of completing the survey. The Hon. Lady (Dr. McDonald) raised a point about question 5 (a) which asked: 'Do you think that in practice under the 1967 Act, abortion is available on demand in the N.H.S. hospitals generally, in some cases or not at all?'. The answer was that from their own experience 2% of doctors said that it was available in all N.H.S. hospitals and 70% said that it was available in some of them.
8th February 1980
+Mrs. Dunwoody: "We should remember that in the majority of cases women are not receiving abortions on demand, which is the argument that is always used, but it is not so. The figures prove time and again that in certain parts of the country there is virtually no abortion on demand."
It is quite clear from these quotations that members on both sides believed that abortion on demand was available, at least in some areas, and that it was illegal. How remarkable it is then in face of these facts and opinions that Mr. David Ennals, formerly Secretary of State in the D.H.S.S., could open the debate on the Report Stage of the Bill by stating, "Illegal abortion offences known to the police have dropped from 257 in 1967 to only 10 in 1978". The only explanation of this can be that he failed to inform the police that illegal abortions were widely available in his own hospitals, and in the private clinics licensed by him. Mr. Tim Rathbone speaking on behalf of his Department makes clear that abortion on request is illegal, and his own gynaecologists say that it is available in his hospitals. What more need be said?
Child Destruction
Secondly, let us consider how our Members of Parliament regard the offence of Child Destruction. It will be recalled that this offence was created by the Infant Life Preservation Act 1929, and is committed when a child "capable of being born alive" is destroyed by a wilful act before it has an existence independent of its mother.
Argument about the nature of this offence has centred around the words "capable of being born alive". In the absence of any judicial interpretation of these words, this Association has always taken the view that they mean exactly what they say. In other words from the time that a child is capable of being born (which we understand to be around 12 weeks or so) the offence is committed if the child is destroyed in the womb. In other words, whatever the phrase means it does not mean "viable", which implies capability of sustaining an existence independent of the mother.
Support for the Association's view came in the debates from Miss Jo Richardson M.P., in the following words:
4th December 1979
+Miss Richardson: "In our previous sittings we have had many occasions to discuss the possibility of a foetus being born alive and its viability. I do not want to go into those cases yet again. I believe that what has emerged is that it is possible for a foetus to be alive at the moment of its actual birth for a few minutes or for perhaps half an hour, as in the cases of which we have read in the newspapers and which have been listed in this committee. And whether a foetus is 'a viable child' — whether its lungs have the capacity to sustain life — is still much in dispute. We believe the words 'which is or may be capable of being born alive' which could refer to the cases where the foetus is expelled from the mother's womb and lives, in a limited sense, for two or three minutes or perhaps for half an hour - would be better replaced by 'a viable child'. In other words 'a viable child' is one that is capable of sustaining life outside the mother's womb."
Do M.P.s know Child Destruction takes place?
Subsequently the Standing Committee and later the House itself, went on to spend a great deal of time debating the question of whether the presumption contained in subsection (2) of Section 1 of the 1929 Act should be changed from 28 weeks to 24 weeks, or to some other period.
This sub-section says that if a woman has been pregnant for 28 weeks this is prima facie proof that the child is capable of being born alive. In other words, in proceedings brought for the destruction of a child aged less than 28 weeks it would have to be proved that the child was capable of being born alive. It was made clear in the course of these debates that such evidence is readily available, even if capable of being born alive means no more than viable. Parliament was clearly convinced by this evidence, which would presumably also be available to a Court.
If, therefore, as seems likely, there would be no difficulty in proving that a child is capable of being born alive at, say, 24 weeks, it is difficult to understand what Parliament expects to achieve by changing the rule of evidence which requires this to be proved. If there had been a great many prosecutions brought for destruction of children aged between 24 and 28 weeks from conception, all of which had failed solely on the point of the difficulty of proving that the child was capable of being born alive. Parliament's anxiety to change the rule about the burden of proof would be understandable.
In fact it is believed that not one such prosecution has ever been brought. This despite the fact that in the debates on 4th December 1979 Dr. Oonagh McDonald referred to a letter from Professor Reynolds of University College Hospital Medical School as follows: "We occasionally admit babies born at 23 weeks gestation, and while none have yet survived, it is inevitable that one will, sooner or later. Infants born at 23 weeks are, incidentally, sometimes very much alive at birth — whatever you may hear to the contrary."
Abortion statistics for 1977 published by H.M.S.O. show 43 abortions on children of 24 weeks and over in N.H.S.S. hospitals, and 61 such cases in other premises. In view of the evidence of Professor Reynolds the D.H.S.S. must have regarded all these abortions as illegal, and punishable with up to life imprisonment. Were the prosecuting authorities informed about these cases, and if so did they take any action? Presumably not. Even on its own interpretation of the law, therefore, the D.H.S.S. provides illegal abortions involving Child Destruction.
Other unpunished offences
Furthermore, Sir Bernard Braine pointed out in the debate on 8th February 1980 that in no fewer than 4,651 cases in 1977 no gestational age was given by doctors who carried out abortions. Since the failure to give gestational age is in itself an offence under the Regulations made under the 1967 Act, why were no proceedings brought in respect of these 4,651 cases of which the authorities were notified? No doubt because if proceedings had been brought they would have shown that in many cases the gestational age was above 24 weeks, and that therefore the more serious offence of Child Destruction had also been committed.
Sir Bernard Braine in the same speech also made reference to cases where the "green form", which is required under the regulations to give details of the abortion, is completed by only one doctor, and gives as grounds for the abortion "unwanted pregnancy". He indicated that this kind of thing happens "every day of the week". To complete a form in such a way certainly is an offence under the regulations, and must give rise to doubts whether the protection given to the doctor by the Abortion Act 1967 is applicable. Yet prosecutions for such offences are virtually unknown. Why is this the case, when all the evidence is in the hands of the authorities?
Enough has been said to show that all M.P.s must by now be aware that the crimes of procuring a miscarriage and Child Destruction are "no go" areas of the Criminal law, where the authorities will not prosecute, even if given full details of the crime and the offender in writing.
One cannot conclude this comment on the debates without referring to the noble words with which Mr. Ennals opened the debate on the Report Stage of Mr. Corrie's Bill on the 8th February 1980. Mr. Ennals: "Very few, and certainly no one in this House, would be evil enough to wish to destroy a human life. Every human being has a right to live as set out in the United Nations Declaration on the rights of a child." This man, when Secretary of State at the D.H.S.S., presided with apparent approval over the killing of more than 100,000 unborn children every year, in places licensed or run by his department.
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The Role of the Nurse in Termination of Pregnancy
On the 21st February 1980 Sir Henry Yellowlees, Chief Medical Officer at the D.H.S.S., sent out a letter on medical induction of abortion which was very widely circulated to the medical profession. In this letter he stated that provided a doctor personally decides upon and initiates the abortion and remains responsible for it, it is not necessary for him personally to perform each and every action needed to achieve the abortion. Following the issue of this letter, one of our members, Mr. Bowles (who also happens to be a member of the Bar and our Honorary Secretary), was invited to give his views on it to a Member of Parliament. The article which follows is a synopsis of those views.
This D.H.S.S. letter of 21st February 1980, ref. CMO (80) 2, with its two Annexes, is an attempt to legislate by the D.H.S.S. It is an attempt to strain and extend the strict wording of a highly-restrictive Act by the mere say-so of a Civil Servant sending round a circular letter. Those who are concerned to resist usurpations of the democratic functions of Parliament (see Page 21 of the "Conservative Manifesto 1979") should be alert to this threat to Parliamentary authority; as well as recognising clearly the threat to the very lives of numerous innocent human beings which is contained in this letter.
More and more people are now fully informed about what happens at the moment of conception, and the full humanity of even the most recently conceived human being in his or her embryonic state is now fully recognised and understood by hundreds of thousands of people throughout the country. Yet it is at this time that the D.H.S.S. by this letter seeks to extend, by its own authority rather than by the normal and proper legislative processes, the number of those who, with impunity, may kill young human beings without a trial, and without the first suggestion of any charge of criminality being brought against the tiny victim. On highly important general principles therefore — principles relating both to the position of Parliament and to ordinary human rights — this letter should not be allowed to succeed in its pernicious purposes.
It is heartening to note that the Nursing Times (page 569 of the 27th March 1980 issue), was quick to speak out against it, for any threat to the unborn is a threat to all of us, even though it may not be recognised as such. The nursing profession with its great traditions would be right to reject with unconcealed indignation the theory which is implicit in this letter, namely, that joining in the killing of young patients is consistent with the traditions of the nursing profession. The medical profession is widely and profoundly mistrusted as never before, precisely because some of its members have abandoned its former high principles and now devote their skill and talents to killing people. It is greatly to be hoped that the nursing profession will never allow itself to go down the same path — both for the sake of its own honour and its own benefit, and for the sake of those whom this D.H.S.S. letter encourages nurses to kill.
Happily, there are strong grounds for challenging this letter. The fatal flaw in it can be detected by studying carefully the penultimate paragraph of Annex A. That paragraph gives an accurate description of what happens at a "medical induction" (i.e. prostaglandin-induced termination):—
"Some of the acts necessary to bring about the termination are carried out not by a registered practitioner personally but by persons without medical qualifications acting on his instructions and often without his presence. Moreover some of these acts are acts which in themselves are capable of terminating the pregnancy (for example the connection to the patient of a 'prostin pump' or the substitution of a full for an empty bottle of abortifacient fluid)."
Lawyers have apparently been found to advise the Secretary of State that, notwithstanding the state of affairs described in the above concluding words of that penultimate paragraph of Annex A (and put forward, be it noted, by the D.H.S.S. itself as a true account of what happens at its numerous "medical induction" terminations), it is nevertheless "irrelevant whether such actions have an abortifacient effect or render the process of termination irreversible". This advice has been given to the Secretary of State notwithstanding the fact that the person who is not a registered medical practitioner obviously plays at least as large a part, probably a larger part, in the termination as does the registered medical practitioner himself.
Now the law is clear on this: one of the many very strict conditions for bringing into operation the protection afforded by the very restrictive Abortion Act of 1967 is that the pregnancy must be terminated by a medical practitioner. If the termination is not performed by a registered medical practitioner, then the protection of the Abortion Act 1967 will never be available to anybody and the full rigour of the criminal law will apply against all concerned — doctor, nurse, and Secretary of State. If, as is openly admitted in Annex A, people who are not registered medical practitioners perform acts which (a) are "necessary to bring about the termination" and (b) if themselves are capable of terminating the pregnancy", it is hard to understand how anyone could seriously contend that in those circumstances (and those circumstances occur, so it would seem, in every such termination) the termination is performed by a registered practitioner.
The plain facts and the reality of the matter are, and surely any judge and any jury would agree, that notwithstanding such supervision as the registered medical practitioner may exercise, the termination is actually performed, as often as not, by someone who is not a registered medical practitioner, and a crime punishable with up to Life Imprisonment has once again been performed at the taxpayers' expense in the National Health Service.
As if the foregoing were not serious enough, the following criticism of this letter of 21st February 1980 should also be made. Its bold concluding words are that "a nurse or midwife will be within the protection of the 1967 Act in carrying out actions which .... she is instructed to do by the registered medical practitioner responsible for the termination, including acts which in themselves may have an abortifacient effect or which could be said to render the process irreversible". This overlooks a key point which is fundamental to a correct understanding of the Abortion Act 1967, namely that that Act is a highly-restrictive one and, as such, must be interpreted strictly rather than loosely.
Had Parliament wished to extend immunity from prosecution to cases where the killing had been performed by nurses and midwives as well as to cases where the killing had been carried out by a doctor. Parliament could so easily have said so. Back in 1966 and 1967, when there were large majorities in favour of abortion in Parliament and when so few M.P.s (see Hansard, passim) had any notion of the medical facts about what happened at the moment of conception, Parliament nevertheless took great care to allow protection against prosecution to be given only where the termination had been done by a doctor. Not only would it be going against the wishes of Parliament as expressed in the actual wording of the Act, but it would also be going against the wishes of Parliament as expressed in repeated votes (though not Acts) since, if the floodgates were to be allowed to be opened further by the "diktat" of the D.H.S.S. letter of 21st February 1980.
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 mutter 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.
