The Association of Lawyers for the Defence of the Unborn
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| Newsletter No 8 Winter 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
Winter 1980
Number 8
News and Comment
Progress of the Association
In this issue we look at the way in which pro-abortion legislation has undermined the respect for human life across the world. This is not an academic exercise, and we make no apologies for this excursion abroad. In the first place, we now have members in sixteen countries overseas, in many of which the law relating to abortion is different from our own. Secondly, the way in which abortion laws have operated in other countries gives us a great deal of useful information about how we can improve the law in the United Kingdom.
Nor does the fact that in this issue we are concentrating on the abortion scene overseas imply that this Association is making no progress in the United Kingdom. On the contrary, we continue actively to pursue our primary aim of educating our profession.
Since our last Newsletter more than sixty members have joined the Association, bringing our total membership to around 700 members. We have had an important joint conference in Manchester with the World Federation of Doctors who Respect Human Life. An article by our chairman and secretary on the illegality of abortion on demand has appeared in the 24th September 1980 issue of the Guardian Gazette, which goes to some 70,000 solicitors and barristers.
Our members as individuals have continued actively to promote our aims, particularly in Wales and Scotland; and our chairman has had a most useful meeting with a member of the Irish Bar in Dublin, who is eager to see the growth of a branch of this Association in that country. Our educational advertising in the legal press has been stepped up, and we are now able to publish a full page of reasoned argument against abortion, thanks to the generous response to the appeal for funds which went out with our last Newsletter.
The work of drafting Bills for M.P.s, who wish to amend or repeal the law, is well advanced. Our Student Committee is actively in touch with colleges and universities up and down the country. Representations have been made to the Lord Chancellor about the disgraceful mis-statement of the law, given by the Minister of Health, Dr. Gerard Vaughan M.P., to the House of Commons at the second reading of Mr. Corrie's Abortion (Amendment) Bill.
Many other activities could be mentioned, and we believe we are doing all we can to bring back respect for the Rule of Law, and for the sanctity of life amongst members of the legal profession in this country. Nevertheless, across the world the legal position of the unborn child is increasingly unsatisfactory.
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Abortion — the world picture
Australasia
In New Zealand, the law against abortion was improved two years ago. Previously the law had been very similar to our own, and thanks to the efforts of pro-life workers in that country (including, we are pleased to say, distinguished members of our profession), the law was altered by the addition of the word "serious" to the grounds on which abortion could legally be performed. The immediate result of this was a drop in the number of abortions performed in that country, although thousands of women in fact just went for their abortions to Australia, where abortion laws in some of the States are among the most "permissive" in the world. As soon, however, as New Zealand doctors discovered that the authorities in that country proposed to take no steps to prosecute doctors who disregarded the word "serious" in recommending abortions, the statistics for numbers of abortions performed began to creep up again, until today they are nearly back where they were before the law was changed. This sad story confirms the view long held by this Association that to press for law reform without pressing for law enforcement tends to resemble a tale "full of sound and fury signifying nothing".
The American Continent
The blackness of the situation must not be exaggerated however, and it is important to keep matters in perspective. In approximately one-third of the world abortion is still illegal with minor exceptions. In Latin America, for example, abortion is still largely illegal, with discriminatory exceptions where the life or health of the mother is severely threatened. The countries of South America at present show no signs of following the example of the United States, where abortion has been held by the Supreme Court to be a woman's right: and where in some states half of all pregnancies end in abortion, producing well over one million abortions in the U.S.A. every year. Unfortunately, even in Latin America, abortion is widely practised without significant Government action.
In Canada the situation is different again. Here the idea of setting up independent panels within the state hospitals to authorise abortion in "appropriate" cases has been adopted. This situation is of particular interest to us, because it has been more than once suggested that this system should be adopted in this country, on the grounds that is would reduce the pressure for abortion on demand. Certainly in Canada it is not so easy to obtain a quick decision as it is in this country, but nevertheless infiltration of Hospital Boards by pro-abortion doctors has led to an increase in the number of abortions performed over a period of time. It is also significant that in Canada private abortion clinics are illegal, except in Quebec. As a result,in Canada there is about one abortion to six live births, a considerably lower rate than in this country. There is, however, no doubt that many women cross the border to get an easy abortion in the United States.
Asia
Most countries of the Commonwealth have very similar laws to our own. In India as in Japan, however, the grounds for legal abortion are extremely wide, and in Japan in particular numerous adverse effects on maternal health have been noted as a result of this. In China abortion is available on request. In Muslim countries the general position is that abortion is legal only when performed to save the life of the mother. The Koran prohibits abortion, although nowadays Muslim theologians can be found to argue that this prohibition is not absolute.
Europe
In Europe the situation varies widely. In Portugal, for example, abortion is completely illegal, and there appears to be very little pressure for it to be legalised. In Ireland it is similarly illegal, although some 7,000 women from Ireland come to England for abortions every year, which suggests that attempts to change the law there will inevitably be made at some future date. It is for this reason that it would be very valuable if an Association of Lawyers similar to our own were set up in the Irish Republic.
In Belgium and Holland abortion is illegal, and pro-life organisations have successfully resisted pressures for change. However, doctors in Holland tend to ignore the law, and in practice abortion is available on demand, with no prosecutions taking place. As a result Holland probably has almost as many abortions as live births, and many women travel from Belgium to Holland to obtain an abortion.
In France abortion is available on demand, provided the unborn child is aged 10 weeks or less. If he or she is older than 10 weeks and two doctors (one of whom must be an expert in gynaecology) give their approval, then an abortion can be performed legally. As a result, the number of abortions in France is very similar to the number in this country. French law, however, gives no protection to children capable of being born alive, and some clinics kill babies aged anything up to 7 months.
In Italy the code of law which prohibited abortion was abrogated by a referendum in 1978, and at present the general position is one abortion for every three live births. The legal profession has been active in this issue, and seventeen judges appealed to the—Constitutional Court against the present law. A decision on this appeal is imminent. Pro-life organisations in the country are trying to obtain another referendum next year, and if they are successful in obtaining a majority in this referendum, then the law is likely to be improved considerably.
In Germany abortion is allowed for "social indications", and it is likely that there are far more abortions in Germany than there are in England. The regulations as to notification are, however, even less comprehensive than in this country, so that accurate statistics are difficult to obtain. Opposition to abortion in Germany is very much polarised along political lines, with many people rightly seeing it as resembling practices under Nazi rule. There is strong opposition to abortion from certain members of the Christian Democrat Party.
In Austria abortion is legal on demand, provided the unborn baby is aged three months or less. If he or she is older than three months, then it is legal to kill him or her on certain indications. But since Austrian law permits the killing to be done by any medical doctor on any premises, the result in practice is abortion on demand.
Throughout Scandinavia legal abortion is in effect available on demand. Behind the Iron Curtain abortion has been legal for many years, but in recent years there has been an improvement of the law in some countries.
General Pattern of Abortions
Although in this article it has only been possible to draw an extremely general picture of the situation relating to abortion law throughout the world, it is nevertheless possible to observe a general pattern in it. In countries where strong religious convictions, inculcating a respect for the sanctity of life are widely held, abortion is illegal, and there is little evidence of it in practice, and little evidence of "back street" abortions.
In other countries abortion is virtually obtainable on demand in the first months of pregnancy, even in those countries where the unborn are supposed to have some protection from the law. Because of the reluctance of prosecuting authorities everywhere to prosecute doctors who perform abortions, improvements in the law have had only very limited success.
There are two conclusions one can draw from this situation, which emphasise the importance of this Association. The first is that pressure on the authorities to enforce the law may in the long run have much more effect in reducing the number of abortions than minor improvements in the law itself. It is clear that an association of lawyers is an ideal body to persuade the authorities and the Courts to enforce the law.
The second conclusion is that education about the full humanity of the unborn child, and the importance of respecting that child's right to life, is an essential part of any programme designed to protect the unborn. Although the aim of this Association is primarily to educate our own profession about these important facts, there is nevertheless no doubt that our profession is one of great influence in our country, and thus our work is one of vital importance to the protection of the unborn child.
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A Review of "Abortion Laws in the Commonwealth"
(Commonwealth Secretariat Publication 1977)
In 1977 the Commonwealth Secretariat published three studies of abortion law in the Commonwealth. A number of the remarks made by the authors of these studies must give lawyers considerable cause for concern.
Whilst it is not suggested that the studies contain incorrect facts, nevertheless the interpretation of the facts and the conclusions drawn from them show that the authors are clearly not in sympathy with the rights of the unborn child. Indeed the analysis of the information in the main study was carried out by Miss Rebecca Cook, head of the Law Reform Programme of the International Planned Parenthood Federation, and Professor Dickens of the University of Toronto, who in a recent book published by the I.P.P.F., advises doctors how to avoid prosecution for abortion. It is, of course, the I.P.P.F. which, from its huge headquarters in Lower Regent Street in London, has conducted and financed the world-wide campaign for easier abortion in the post-war years, which has resulted in the laws of so many countries being changed. It cannot be without significance that it was this organisation which was selected by the Commonwealth Secretariat to contribute the main paper in this series of studies.
Abortion is the illegitimate child of contraception
The first of the three studies is a report by Mr. M. P. Embrey of the Nuffield Department of Obstetrics and Gynaecology at Oxford, who concludes that
"abortion laws have not kept pace with medical development and thinking",
although they now
"include a greater appreciation of a woman's basic human right to decide her child-bearing career freely".
Clearly Mr. Embrey has never heard of the "right to life", or does not consider that unborn children have this right.
He contends that the legal status of menstrual regulation needs clarification; that since it is performed before a diagnosis of pregnancy can be verified clinically, it is a form of "speculative" abortion; and that the Lane Committee expressed doubt whether a doctor who carried out speculative abortion procedure would be protected by the Abortion Act 1967. Members of this Association who read the article by our vice-chairman Mr. Robin Haig in our Autumn 1979 Newsletter will be aware that in fact the law is already very clear on this, and that speculative menstrual evacuation is a criminal activity.
Mr. Embrey acknowledges that
"from a biological standpoint life is certainly present from the time of conception",
but he considers that there should be
"cogent reasons for the performance of late second-trimester abortions".
He considers the fact that fetal abnormality can only be diagnosed at this stage to be a cogent reason. This Association, of course, rejects any such suggestion that children in the womb may or should be killed simply because they are handicapped.
He concludes that there is no clear boundary between contraception and abortion, and that it is illogical for people to take a conservative stance on one, and not also on the other; and he considers that medical advances call for a further appraisal of the laws relating to both these matters.
All post-conceptive termination is abortion
The second report is by Mr. Victor Tunkel of the Faculty of Laws of Queen Mary College, University of London. He considers how certain methods of "family planning" infringe the criminal law relating to abortion. The object of his paper is stated to be to show the need for reform of this law, so as to permit practices which are described as
"ethical medically and desirable socially".
His paper is concerned largely with the law relating to
"post-conceptive methods for interrupting pregnancy",
that is, methods which operate after the moment of fertilisation and thus destroy human life. To suggest that because a human being is at this stage small and helpless it is therefore "ethical medically and desirable socially" to kill him, is of course a view to which no lawyer should assent.
Mr. Tunkel makes clear that the methods referred to include the intra-uterine device (I.U.D.), otherwise called "the coil".
He rightly points out that, in countries of the Commonwealth which have adopted the Offences Against the Person Act 1861, Section 58 of that Act outlaws any conduct intended to prevent a fertilised ovum from implanting, or to cause an implanted ovum to be expelled. He further rightly concludes that it would seem to follow from this that the I.U.D. is illegal, because
"it is generally accepted that it does not prevent fertilisation".He refers to the fact that some countries of the Commonwealth have legislation similar to the 1861 Act, but as interpreted in R. v Bourne (1938). In Bourne's case, he says, an English judge at first instance held that the word "unlawfully" in s.58 of the 1861 Act required the prosecution to show that the operation was not done to save the life or health (physical or mental) of the woman. However, he feels that this would not allow "post-conceptive family planning" because a desire not to become pregnant could not be described as an anxiety imperilling a woman's mental health.
He continues that the Lane Committee and others have held that the Abortion Act 1967 does not give a defence, if an abortion is intended but the woman is not in fact pregnant. If this is correct, the 1967 Act and its Commonwealth descendents could not legalise "morning after pills", nor menstrual regulation (unless carried out after a pregnancy test), nor the insertion of the coil, if this is held to be speculative abortion. Furthermore since by virtue of Section 5 (2) of the 1967 Act, and similar Acts in the Commonwealth, anything done with intent to procure the miscarriage of a woman is unlawfully done unless authorised by Section 1 of that Act, the interpretation of the word "unlawfully" in Bourne's case cannot provide a loophole for those who go in for speculative abortion.
He refers to the law of Singapore, which has
"advanced furthest in relaxing abortion laws",
so that it appears to give doctors who perform abortions complete immunity. However, even under this law, there could be difficulties in insertion of the coil, menstrual evacuation and morning after pills.
He puts forward various suggestions for "reform" of the law, so as to provide immunity for anyone who causes abortions in any of these three ways. He concludes his article with the following words:
"it would be vain and Canute-like for the law to remain negative and obstructive. Forward-looking family planning policy needs positive help from a forward-looking law."
Why it should be "negative" to protect unborn children from being wantonly killed, or "forward-looking" to permit such killing, he does not explain.
Trespassers (if abortionists) will not be prosecuted
The purpose of the third study, by Miss Cook and Mr. Dickens, is stated to be
"to achieve acceptable abortion practice in the prevention of unwanted pregnancy".
It is interesting to note that abortionists no longer pretend to be improving maternal health, but now quite openly admit that their purpose is preventing pregnancies. In fact abortion can never prevent an unwanted pregnancy. It can only cause the pregnancy to end with a dead baby, instead of with a live baby. This is, therefore, just one more example of the twisting of words by abortionists.
The authors begin by dealing with the important question of good faith. They admit that
"a physician advising or performing an abortion in the belief that any woman asking for an abortion should be entitled to it would not be exercising medical judgment, or would not be making his medical assessment in good faith".
They pass no comment at all on the fact that in this country more than 95% of women who seek abortions in the private sector apparently obtain them as a matter of course. However, they do point out that modern Commonwealth juries have hitherto shown a tendency to favour physician defendants, and that in nearly all cases in the Commonwealth where physicians have been prosecuted, juries have acquitted.
They draw attention to an interesting provision in the Singapore Abortion Act 1974, which could well be included in future abortion legislation in this country. Section 5 of that Act punishes "any person who by means of coercion or intimidation compels or induces a pregnant woman against her will to undergo treatment to terminate pregnancy". They point out that this offence could apply not only to the father seeking to avoid child maintenance responsibilities, but also to a parent concerned to protect the family name.
They comment interestingly on the fact that
"a number of Commonwealth Jurisdictions accommodate a right of private prosecution, permitting anti-abortion activist groups in theory to initiate proceedings to test the law".
In practice such groups have not done this because they
"lack a number of procedural means open to Public Prosecuting Authorities".
In particular they cannot gain compulsory access to evidence, nor can they offer aborted females immunity from prosecution for their own criminal acts in return for testimony against the abortionists. This puts very clearly the reason why pro-life organisations do not bring private prosecutions, and makes clear the fact that the absence of such prosecutions is no evidence whatever that the majority of notified abortions are generally believed to be legal.
The authors point out how difficult it is even for public Prosecuting Authorities successfully to bring prosecutions. This is because of the duty which the prosecution has of proving guilt beyond reasonable doubt.
"It must be shown not only that the defendant acted contrary to the prohibition of the law, but also that he had criminal intention, or did not act in good faith. Evidence of such intention or lack of good faith may exist in the secrecy (as opposed to privacy) of the operation; failure to enquire into the woman's circumstances to establish legal indications, and charging of high fees."
The report continues that, as a result of the difficulty of bringing successful prosecutions under the existing law in the Commonwealth, abortion laws are almost completely unenforced. They say,
"the overwhelming majority of jurisdictions have no recorded instance in their recent or longer-term history, or indeed ever, of the prosecution of an illegal abortionist, or of a woman employing his services or performing a procedure upon herself. There is little short of perfect uniformity within the Commonwealth jurisdictions in law-enforcement authorities giving abortion law execution a very low priority."
Conclusions
For reasons of space we are unable to comment on the actual details, given in the studies, of law in the Commonwealth, or the proposals for the changing of those laws suggested by the authors. However, certain useful conclusions can be clearly drawn from the parts of these studies to which reference has been made in this article. These are as follows :—
1. The Commonwealth Secretariat has a clear pro-abortion bias, as disclosed by the people commissioned to make these studies, and their total disregard of the right to life of the unborn child.
2. As a result of the unenforceability of anti-abortion law, the Rule of Law in the CommonweaIth is a thing of the past, so far as this matter is concerned.
3. Any future amendment of the law must be in the direction of making the law easier to enforce. Strict but unenforceable laws simply bring the legal system into contempt.
4. "Speculative" abortion (which is of course widely available in the United Kingdom and Commonwealth), is still completely illegal under the present law, as even those who are in favour of it admit.
5. Although the gynaecologist who writes the first study apparently believes that abortion is a woman's "basic human right", the authors of the third study make clear that doctors who provide abortions because they believe that it is a woman's right are providing illegal abortions. The fact is, and it is time that it was clearly stated, that doctors who say they believe that it is a woman's right to have her unborn children killed are really saying that they have a right to kill their fellow human beings as and when they think fit. Such doctors are arrogating to themselves powers which they have never been given by the law, and are certainly not in accordance with the high standards of their profession.
6. Finally, the three studies make clearer than ever how vitally important and urgent it is to get across to those in authority that the unborn child has a right to life, and how important it is for all members of this Association, and for the Association itself, to continue to speak out for justice and for the rule of law.
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Basic principle of a legal right to life
Last September our chairman attended a World Conference of pro-life organisations in Dublin, at which he represented this Association. The conference was also attended by a number of lawyers from other countries. One important matter which was debated at the conference was whether there was a legal principle of universal application relating to the unborn child, which we ought to strive to see incorporated in the laws of all nations. Perhaps surprisingly, unanimous agreement was reached between the delegates on this point.
To see the significance for our legal system of the principle on which agreement was reached, it is necessary to consider briefly what offence may be committed by a doctor who deliberately causes the death of an unborn child. A doctor who does this may commit either the offence of procuring a miscarriage, or the offence of child destruction, or both. However, it cannot be an offence under the law relating to murder, because murder is the unlawful killing of a reasonable creature in being. The words "in being" have been interpreted to mean that a charge of murder or manslaughter could not be brought against a person causing the death of a child until the whole body of the child is extruded from the womb, and has an existence independent of the mother. It is this restrictive meaning which has been given to the words "in being" (which flies in the face of all known medical facts), which lies at the root of the unjust legal situation affecting the unborn child in this country today.
It was accordingly proposed at the World Conference by the chairman of this Association, and after discussion agreed by all the delegates, that what was needed was a statutory legal definition binding on the courts to the effect that an unborn child is a life in being, and therefore a legal person for the purpose of the law relating to murder or manslaughter. This would have several advantages over other methods of changing the law, namely :—
(a) It is simple and unambiguous;
(b) It would not affect termination of pregnancy where the life of the child is not at risk, which is is common and perfectly proper medical operation;
(c) It would make available to defendants in any proceedings the same defences which they would have in proceedings for murder or manslaughter (e.g. diminished responsibility, no other reasonable alternative means of self-preservation, etc.);
(d) It would tie in with what is already the civil law relating to inheritance, affiliation proceedings, etc.;
(e) It would accord with scientific and medical reality.
The principle that an unborn child is not a life in being stems from the writings of Lord Justice Coke (1551-1633), who was no doubt a great jurist, but obviously could not have formed his opinions in the light of 20th century medical knowledge. It is high time that this unscientific and out-of-date distinction was abolished, and the legal situation of the unborn child placed on a par with that of all other children. It was agreed by the delegates at the Dublin conference that they would return to their respective countries, and work for this much-needed change in the law.
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.
