The Association of Lawyers for the Defence of the Unborn
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| Newsletter No 7 Autumn 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
Autumn 1980
Number 7
News and Comment
London Conference
On the 26th June 1980 an historic event took place in the Common room at the Law Society's Hall in Chancery Lane. Some eighty lawyers from all over London met together to confer about the grave injustice of abortion, the injury done thereby to the human rights of the unborn child in this country, and how this may be remedied.
The views of the second speaker. Professor R. W. Taylor F.R.C.O.G. of St. Thomas' Hospital, were of particular interest to the audience of lawyers, as representing the viewpoint of a most distinguished member of the medical profession, which is even more profoundly affected by this evil than is our own.
The Consequences of legalising abortion
Professor Taylor took as the theme for his talk the consequences of legalising abortion. He told his audience that even before 1967 there were (at least) a few hundred abortions every year carried out within the law as it then stood. However, a lot of muddled thinking by some, and clear exploitation of this by others, led to the Abortion Act of 1967. He had foreseen that this change in the law would lead to a lessening of regard for human life, improper pressure on individuals to have abortions, and above all a profound effect on the medical profession, on the career structure of medicine and on the type of individual who went into medical practice.
He emphasised that there was no question biologically about the fact that new life began at conception. At that moment the mix of genetic material was completed, and nothing could be added to it. The future was set, and all the potential was there. The old idea was that "quickening" occurred around 20 weeks, but it was now known that 4 weeks after conception the foetus is moving actively.
He drew attention to situations in which confusion about this issue arose. There had been a change in the attitude to contraception, as a result of which anything was now acceptable, even if it was in substance an abortifacient. Menstrual extraction was another procedure, which was in fact an abortion, but was generally regarded as not having to be notified under the Act. Some people had tried to get round these difficulties by saying that pregnancy began a week after conception, at the moment when the fertilised ovum became attached to the womb.
He pointed out that since 1967 the attitude to foetal abnormality had undergone a revolution. The Department of Health had issued a leaflet on the prevention of mongolism, but in fact when one read the pamphlet it appeared that what they were talking about was preventing babies, not the disease. There was a new attitude among gynaecologists, who were now telling women aged 38 that they had a social duty to have a test for mongolism, because of the burden which support of mongol children was placing on society. Also doctors were putting pressure on women to have an abortion where a pregnancy was "unplanned". There appeared to be a feeling that five babies was too many. It had been held in one paternity suit that the father was under no liability to maintain the child, because he had offered to pay for the child to be aborted.
He was concerned about the psychological consequences of abortion, which he said were difficult to assess. When a patient was informed that the abortion was necessary on medical grounds he felt that there were few ill effects for the patient psychologically, although the doctor might have feelings of guilt if this was not genuinely the case. However, where women have been put under pressure to have abortions then the psychological consequences could be considerable. Again the consequences could be very different for a woman depending on whether she was aware that a foetus was an unborn child at the time of the abortion, or whether she considered that the child was at that stage no more than a blob of jelly.
He emphasised that there were many more abortions being performed now than were done criminally before 1967, and although these were described as "therapeutic" they could lead to a spontaneous miscarriage in future pregnancies.
In conclusion he pointed out that the law set the standard of behaviour for many lay people, who thought that because something was now legal it must therefore also be moral. He felt that those who were aware of the true biological facts had a duty to educate the whole population about these, and there was a further duty to educate them about the morality of the situation as well.
Capable of being born alive
The final speaker at the Conference was Mr. Gerard Wright Q.C., who spoke on the Infant Life (Preservation) Act of 1929. In his talk he developed the views which he originally put forward in our Summer 1979 newsletter. He gave a most interesting history of the background of the 1929 Act, and in particular of the views expressed about it in the House of Lords at the time. These made quite clear that the concept of the "viable foetus" is a myth and that the Act was never intended to be confined to protecting "viable" children. The contrary view recently expressed by the legal advisers to the Crown was, with respect to them, nonsense, or wishful thinking or both. However, it is hoped that Mr. Wright will set out his views about this matter fully in a future edition of this newsletter, and it is not therefore proposed to report on his talk in detail in this present issue.
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Abortion Law Reform
To change the law relating to abortion is not, except indirectly, one of the aims of this Association. However, it is perfectly clear that there will never be justice for the unborn child in this country until the law is changed, and this is why many of our members in their individual capacities have been extremely concerned about this, and continue to work actively for it.
We reproduce below two articles relating to this very important topic. The first is by Mr. David Poole, a Barrister practising in Manchester, and the second is by Mr. Christopher Fradd, a Solicitor practising in London. At the request of the Editor, Mr. Poole has concentrated on the wrong way in which this issue has been tackled in the past, with a view to seeing how mistakes made previously can be avoided in the future. It is better to have fought and lost than never to have fought at all, but better still is to learn from the reasons why we lost last time, so that we win next time.
Mr. Fradd has concentrated on what is to he done in the immediate future. There are two ways to win a boxing match. One is by the straight knock-out in the first round, and the other is to defeat the opponent point by point and blow by blow. Mr. Poole is an advocate of the former course, and Mr. Fradd of the latter. Here we are dealing not with law but politics, sometimes called the art of the possible, and which method is most likely to succeed must depend on the circumstances prevailing at the time. We leave our readers to form their own conclusions.
After Corrie
The Corrie Bill is dead, lamented by some. Any compromise abortion legislation places in a dilemma those who favour life. It it bound to contain proposals, indeed to be based on premises, that are repugnant: on the other hand it may be seen as an improvement, however limited, on the status quo. The question posed in these notes is whether any compromise deserves support, and the question is an urgent one not merely of principle, but of practice. In short, how likely is any "compromise" legislation to lead in practice to a reduction in the incidence of abortion?
First it is worthwhile remembering that the 1967 Act is itself a compromise. A stranger, reading it for the first time, might be forgiven for believing it to be reasonably, perhaps even highly restrictive. Certainly its framers (or most of them) believed it to be so. What it allows in practice we now know. This writer, for one, is doubtful whether the Corrie Bill, or any "compromise" framed on similar, or even on simpler more thoughtful lines, would have had the effects so enthusiastically predicted for it.
Consider the following:—
(1) By clause 1 (1) (a) of the Bill it was proposed that a pregnancy might lawfully be terminated only if it had lasted for less than 20 weeks. It is worth noting that some 98% of those abortions performed under the present law are carried out before the 20th week. Of the remaining 2% some, perhaps many, it is reasonable to assume, are performed to preserve the life of the mother or to prevent grave permanent injury to her. Such abortions would have remained lawful under Corrie's proposals (see clause 2 (1)). It follows that the 20 week clause would have had relatively little impact. Indeed, there is a reasonable fear that those lives saved (if any) would have been outnumbered by the lives lost by reason of pregnant women hastening or being hastened towards an abortion by fear of the 20 week clause itself.
(2) Clause 1 (1) (b) of the Bill was an attempt to strengthen the law by the addition of two words to the 1967 Act; namely "serious" to qualify "injury" and "substantially" to qualify "greater risk". Given the difficulty (impossibility some would say) of supervising the present law, this writer seriously doubts that the addition of these two words would have rendered the law more amenable to the supervision of the courts. Would practitioners who hitherto, whether for reasons of profit or of conscience, had formed "opinions in good faith" as to questions of "injury" and "greater risk" have found themselves unable to form "opinions in good faith" as to questions of "serious injury" or "substantially greater risk"? There have been in 12 years, some 1,500,000 abortions performed under the 1967 Act. In that time there has been one successful prosecution (R. v Smith [1974] 1 AER 376). The reason for this is known well to those concerned in the administration of criminal law: it is the difficulty, insuperable in most cases, of proving the ingredient of ill faith. (Sir George Baker, the late President of the Family Division, saw the difficulty very plainly in the Paton case in this comment: "my own view is that it would be quite impossible for the courts in any event to supervise the operation of the Abortion Act 1967").
Would Corrie's proposals have removed or reduced this difficulty?
(3) Clause 2 (1) excluded prosecution for abortion or child destruction in cases where "termination is necessary to preserve the life or to prevent grave permanent injury to-.... the pregnant woman". The "20 week" clause had no place here; those wishing to question such terminations by way of prosecution were again likely to founder on the rock of proving ill faith; and the section actually reduced existing protection for the unborn by providing a new statutory defence to child destruction, namely "an opinion formed in good faith that the termination is necessary to prevent grave permanent injury".
(4) A new section 1 B preserved the status quo regarding the child substantially at risk of being born seriously handicapped. Such a child, unless capable of being born alive, would have had exactly the same rights as before: that is to say, no rights at all.
(5) Clause 2 (4) (a) spelt out for us, in case we had missed it before, exactly how the Corrie Bill proposed to weaken the statutory protection conferred upon the unborn by the Infant Life (Preservation) Act 1929, by adding a new statutory defence (see (3) above).
(6) Clause 3 amended Section 4 of the principal Act, the "conscience" section, in two ways. First, by qualifying the phrase "conscientious objection" with the words "on religious, ethical or any other grounds"; and secondly, by removing from conscientious objectors the burden in legal proceedings of proving their objection. The words "on religious, ethical or any other grounds", did nothing to strengthen the existing wording of section 4 which is quite comprehensive enough. The shifting of the legal burden failed to deal with the real problem of the practitioner's conscience, which is that it is not before courts of law but before hospital selection panels that questions of conscience must in fact be asked and answered, and it is by now clear that there is limited space in obstetrics and gynaecology for those whose answers do not suit the panel.
(7) Section 4 was an-attempt to separate counseling and abortion. It may well have had the effect of excluding from the ranks of counsellors those who had a direct interest in the provision of abortion. This section deserved unqualified support and success, though we may have expected those whose profit motive was sufficiently strong one way or another to re-forge the link between counseling and "treatment".
No one can predict what form future proposals to amend the 1967 Act will take. But however restrictive such proposals may seem, in draft, to be, this writer finds it increasingly hard to believe that they will have any real effect on the incidence of abortion, and supports the view (admittedly a minority one both in this Association and in other pro-life groups) that in hard practice as well as in principle the only legislation worth proposing will be a bill containing 7 words — "The Abortion Act 1967 is hereby abolished".
David Poole
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Law reform — how can it be achieved?
This question is important to this Association, because it is natural that M.P.s should turn for guidance and help in this matter to the only group of lawyers opposed to the law as it stands. It is also urgent, because the next session of Parliament starts at the end of October, and members of this Association then may be asked for advice about any bills which M.P.s may wish to sponsor in the House.
Much public comment has concentrated on the issue of "time limits", and many M.P.s appeared at one time to be convinced that what was principally needed was a law forbidding abortion after 20 or 24 weeks of gestation "to replace the present 28 weeks limit". However, during the spring of 1980 Mr. David Alton M.P. introduced a bill on these lines, to which both friends and enemies in the House refused to give even a first reading. We must surely welcome this. There is no 28 week upper limit, and it can only cause confusion to proceed as if there were.
However, Mr. Alton has grasped one important point, which is that any private member's bill on this subject needs to be short if it is to stand any chance of being enacted. Mr. Corrie tried to achieve too much at once, and this was one reason for his failure. It may be necessary in practice to proceed step by step, and try to secure one useful reform at a time.
We should therefore try to take advantage of this by introducing a series of short bills directed to specific aspects of abortion law which the debates on Mr. Corrie's Bill showed to have some measure of support in the house.
It would probably be helpful if these bills were not specifically directed against abortion as such, but aimed to protect specific sections of the community from exploitation. This might produce a wider sympathy with the aims of the bill. For example, an "Unborn Child Protection Bill" would be designed to protect unborn children from being killed for trivial or "social" reasons; a "Pregnancy Advice Bill" would aim to protect women from being advised about pregnancy problems by people linked financially with abortion agencies; a "Protection of Doctors and Nurses Bill" would protect people in the medical profession from being forced to co-operate in medical operations which they found repugnant on ethical grounds. It would be possible to draw up short bills of this kind, which would then be immediately available for any capable and resolute M.P. who was successful in the ballot for Private Members' bills. Let us look for a moment more closely at what the probable result of such bills would be.
Restricting the grounds of abortion
It is widely believed, on the basis of a false statistical argument which fails to compare like with like, that the Abortion Act 1967 authorises abortion on demand up to 12 weeks because the degree of risk to a mother from an early abortion is so slight. To rectify this, which even Mr. David Steel has said was not his intention, could be done by introducing a bill to provide that before terminating a pregnancy a doctor must believe in good faith that the risk to the mother's health from the pregnancy continuing must be both serious and substantially greater than the risk from termination. This would make it much more difficult for a doctor who performed an abortion on demand to argue that the abortion was justified on medical grounds. It would also strengthen the position of ethical doctors who at present feel they have no legal grounds on which to refuse to provide an abortion.
Eliminating the profit
Many supposedly legal abortions are probably recommended by pregnancy counsellors in Referral Agencies, simply because they are essentially employees of an organisation which is funded largely from the provision of abortions. Human nature being what it is, this must create a bias in favour of recommending abortion. Genuinely unbiased counsellors would certainly lead to a reduction in the number of abortions, and thus in the amount of money available for abortion agencies to spend on propaganda for their cause, which has been so successful in preventing amendment of the law in the past. However, effective legislation to achieve this is going to be extremely difficult to draft, because the incentive to devise loopholes is going to be immense, and it is doubtful if Mr. Corrie's approach would have succeeded for more than a limited time. To make it illegal to advertise abortions, on the grounds that they may "damage your health", would be desirable, but it is unlikely that Parliament would regard abortion as anything like so dangerous as smoking. Alternative suggestions from members as to how to tackle this problem would be very welcome.
Conscientious objection
At the moment the burden of proof for a doctor or nurse who does not wish to participate in abortion operations lies on them, to show that they have a conscientious objection, and this burden should certainly be removed so that any refusal to participate should be acceptable without further proof. Furthermore, medical students and student nurses should not be obliged to participate in abortion operations as a condition of qualifying.
Christopher Fradd
Mr. Fradd has expressed the wish to hear from any members who have any ideas about this difficult subject, or who are prepared to help with the drafting of Bills. His address is 104 The High, Streatham High Road, London, S.W.16.
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How to eliminate the handicapped
Mr. Poole points out above, and it cannot be too strongly emphasised, that Mr. Corrie's Abortion (Amendment) Bill would have been a disaster for the handicapped in our population, if it had become law.
At the moment, a child capable of being born alive may only legally be destroyed if the doctor performs the operation in good faith for the purpose only of preserving the life of the mother. Such cases are nowadays extremely rare. Mr. Corrie would have made such destruction legal not merely to preserve life, but to "prevent grave permanent injury to the physical or mental health of the pregnant woman".
Mr. K. M. Laurence, of the Welsh National School of Medicine, writing in "The Lancet" on February 2nd of this year, said of Mr. Corrie's Bill:—
"Fortunately, the termination of a pregnancy of an abnormal foetus diagnosed prenatally seems to be exempt from any gestational age limitation by virtue of the fact that such a baby may well cause serious injury to the mother or the family".
In other words, if the Bill had become law any handicapped unborn child could be killed at any time up to birth. Prospective legislators should take warning from this article as to what the effects of legislative amendments of this kind are likely to be. This Association cannot, and will not, support any legislation which reduces in any way the limited protection which the handicapped now enjoy.
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Legal Pitfalls in Abortion Counselling
It is becoming increasingly common for members of this Association to be consulted by those who advise people involved in a situation where an abortion is contemplated. There are a number of legal pitfalls to be avoided by those in such a situation, and one of our members has made a synopsis of some of these for a counselling organisation. He has kindly given permission for his notes to be reproduced in this newsletter, and it is hoped that these will be of assistance to members who are asked to advise in such a situation.
Helping girls under 16
In counselling girls under 16, it should be remembered that, under the Sexual Offences Act 1956, section 20, it is an offence, punishable with imprisonment or fine, for any person acting without lawful authority or excuse to take an unmarried girl under 16 out of the possession of her parent or guardian against the parent's or guardian's will. It is no defence that the girl consented, or that the motives of the counsellor were purely philanthropic, and in no way sexual or improper. (R. v Booth [1872] 12 Cox C.C. 231). The only sure legal defence is that the girl herself suggested and was resolved on leaving home and that the counsellor neither induced nor suggested this course of action, but merely fell in with or acquiesced in this proposal (R. v Jarvis [1903] 20 Cox C.C. 249). This need not prevent the counsellor from cautiously and without insinuations discussing hypotheses, contingencies or possible courses of action; nor prevent the counsellor making every effort to assist a girl who is already resolved to leave home.
In gauging the "will" of "the parent" it must be borne in mind that since May 1974 both the mother and the father of the girl (at least if they are all living together) have an equal say: Guardianship Act 1973, Section 1.
"Do my parents have the right to force me to have an abortion?"
It is correct, though not complete, to answer this question: "No". The question is in fact ambiguous in its use of the word "right", and the law on the matter is in any case not altogether clear.
First, it is clear that once a girl turns 16, her own consent to an abortion on herself, under the Abortion Act, will suffice to protect the doctor: Family Law Reform Act 1969, s.8. The parents' consent is not necessary. But suppose a girl of 16 or 17 withholds her consent: would the consent of her parents protect the doctor? The law is not clear, but few doctors would consider it legally safe for them to operate in such circumstances.
Next, suppose the pregnant girl is under 16. The nineteenth century law was clear that until a girl turns 16, her father could always get a court order for her to return to his physical control, and his parental rights of custody were assumed to extend to authorising medical treatment of her, even (no doubt) against her will. But the parental right of custody and control is now "a dwindling right which the court will hesitate to enforce against the wishes of the child, and the more so the older she is. It starts with a right of control and ends with little more than advice": Lord Denning in Hewer v Bryant ([1970] 1 Q.B. 357 at 369).
Moreover the modem law is quite clear that in all matters affecting the custody and control of a minor (person under 18), the welfare of the minor (in this case, the pregnant girl) is "the first and paramount consideration", and will always prevail over "parental rights" as such. Obviously, assessment of the "welfare" of the pregnant girl will vary from case to case and, no doubt, from judge to judge.
Thus, while a girl is under 16, the parents are probably at liberty to require and force their daughter to have an abortion, if they can find a doctor willing to perform it under the Act in these circumstances. "At liberty" here means "not having a legally enforceable duty not to ... .". In this sense, the parents have "the right" to force the girl to have the abortion; but any medical practitioner is probably at liberty to refuse to carry out the abortion (even though it would be lawful under the Act and he has no conscientious objections), if the girl is intelligently withholding her consent — at any rate, provided an abortion is not medically necessary to prevent substantial injury to her health. So in this respect the parents do not have "the right" to have their daughter aborted in all cases of girls under 16, since in these circumstances the doctor has no legal or professional duty to them. And the 14 or 15 year old girl is probably at liberty to withhold altogether her consent to and co-operation with any attempt to abort her. The court would not necessarily order her to submit to an abortion. Therefore, at least until a court did so order her, she would have no duty to submit, and thus her parents could, in this sense have no "right" against her (though, as already mentioned, they might be at liberty to force her if they could).
Protecting girls unwilling to undergo abortion
Suppose a girl under 18 is unwilling to have an abortion and her parents, with whom she is or has been living, a» taking steps to force her to have an abortion. This is obviously a most difficult and delicate situation, 'and the following remarks are concerned only with outlining the legal framework.
(i) It is possible for a girl under 17 to be taken into the care of a local authority. If this move is opposed by the parents it can be effected only by order of the magistrates in a Juvenile Court. In most cases it would in any event be very rash to assume that the local authority's Social Services Committee would take different views from the parents about the desirability of the girl having an abortion "for her own welfare".
(ii) If a girl under 18 wishes to stay away from home in order to be left in peace to have her baby, it is possible for either her parents, or the people she is staying with to apply to the High Court to have her made a ward of court. If either party does this her whole situation in relation to her pregnancy would be reviewed by a judge in the Family Division of the High Court, who could make whatever order he thought fit for the sake of her overall (including long-term) welfare as he assessed it. The parents' wishes as such would have little weight. There may, therefore, be situations where a counsellor should bear this possibility in mind as a possible last resort (to be undertaken with legal advice, or course).
(iii) Where the father and mother of a girl under 18 disagree with each other on any question affecting her welfare, either of them may apply to the court for its direction, and the court again may make whatever order it thinks proper concerning the matter in dispute: Guardianship Act 1973 s. 1(3). In this situation, too, the intelligent wishes of a pregnant girl herself would be given much weight, and (at least in cases where there was no genuine and substantial medical "need" for an abortion) it might be expected that many judges .would allow her to have her way. Both in these and in the wardship proceedings discussed in (ii) above, the medical opinion of the doctor recommending legal abortion could be outweighed by other medical opinion pointing, without challenging the lawfulness of an abortion in terms of the Abortion Act, to the slightness and transience of the risks involved in continuance of the pregnancy.
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.
