The Association of Lawyers for the Defence of the Unborn
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| Newsletter No 9 Spring 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
Spring 1981
Number 9
News and Comment
A call to Action
In place of our usual progress report we reproduce below a call to action addressed to all our members from our Chairman.
Since this Association was formed less than three years ago, more than 800 lawyers have enrolled as members. Although we have members in twenty countries overseas, more than 700 of our members are in the United Kingdom, and of these more than 400 are solicitors. The rapid growth of this Association is an indication of the very deep concern felt by our profession about the fundamental injustice of abortion.
Much has been achieved in less than three years, and details of this have been set out in previous issues of this newsletter. But very much more needs to be done. Every member who has joined this Association is pledged to support our aims, but many members may feel that there is little they can do personally, beyond making the occasional donation. Whilst of course donations are essential to our work, far more important is that every member should be personally active in the struggle to achieve our aims.
The Aim of our Association
The primary aim of our Association is to educate our professional colleagues. This work cannot be left to the small committee of the Association. It must be the responsibility of every member. The quickest and easiest way to achieve this is by distribution of our blue leaflet and our newsletters. Ample stocks of the leaflet and back numbers of the newsletter are sitting on our shelves waiting for members to order them. We hope that every member will try to distribute as many copies of each edition of the newsletter as possible. Although we only send one copy to each member, nevertheless you are welcome to order as many more copies as you need to distribute to your friends and colleagues. The best thing to do is to order a complete set of back numbers 2-8. In addition to sending them to friends and colleagues, we urge solicitors to leave a copy of the newsletter in their waiting room for professional colleagues to read when they call. Members who are at university or college can leave them in the reading rooms and other rooms where such literature is available. Barristers too may be able to think of ways of getting a copy of the newsletter read by their professional colleagues.
Justice for the Unborn Child
Apart from the newsletter, we have just had a further 3,000 copies of the leaflet "Justice for the Unborn Child" printed for your use. Please make use of these, and send them out with a covering letter to the lawyers in your area. If only more of our members would do this, our membership could be greatly increased very rapidly. The stronger the Association is the more effective we can be. Experience of mailing the blue leaflet with a signed letter from a professional colleague shows that there is an enrolment of new members of about 5% of the number sent out. We have members in nearly every town in the country. If each of us were to send the blue leaflet with a personal letter to each of our professional colleagues in our town, nearly every solicitor in England would receive one. This would mean the enrolment of at least 1,000 more solicitors in our Association, quite apart from other beneficial results.
I would emphasise that our literature is absolutely free to members. It is there to be used, and is doing no good to anybody sitting on our shelves. Why not make 1981 the year when you struck a blow for the rights of the unborn child by taking action in this way ?
Supporting Charitable Initiatives
A number of our members have written to me during the past year suggesting that the Association should be registered as a Charity. Unfortunately we have been advised by the Charity Commission that there is no way in which this can be achieved, if we wish our Association to remain open to supporting political initiatives. We feel that we must have the ability to do this if the occasion arises, because of the very great influence which this Association can have in any change of the law, which might save a large number of human lives.
There are however, important charitable organisations in this field which members can support if they wish to do so. One of these which we would recommend to our members is Life Care & Housing Trust. You may act for companies, trusts or even private individuals who regularly make charitable donations, and seek your advice about these. Life Care & Housing Trust with its objective of providing practical help for pregnant women is one which anybody can support, whatever their views about abortion may be. The address of the charity is 7, Parade, Leamington Spa, Warwickshire.
Michael Bell, January 1981
For your children, a new story-book
"The Baby in the Bubble"
to teach children (aged 4-12) in an entertaining way about the nature of the unborn child. Fully illustrated with pictures to colour. 70p post free from Human Life Educational Aids, 32 Ravine Road, Bournemouth, BH5 2DU
The authors are our chairman and his wife.
*********
Abortion — is it still a crime ?
We are pleased to reproduce below the text of a speech given at our Manchester Conference last year by one of our members. Professor D. Lasok, L.enDr., LL.M., Ph.D., Dr. Juris., LL.D., of the Faculty of Law of Exeter University.
Abortion, is it still a crime; and I would add, if it is still a crime then why is it not prosecuted? Consider a few statistics. In 1978 there were 140,000 or more abortions, of which only 5 were to save the mother's life, and only 7 to prevent grave injury. Those are the terms used in the statistical data. There were only 7 prosecutions for Infanticide, none for child destruction, and 3 for procuring illegal abortions. In 1977 there were 133,000 abortions, of which only 3 were to save the mother's life, and 8 to prevent grave injury. There were 3 prosecutions for infanticide, none for child destruction, and 1 for procuring illegal abortion which resulted in acquittal. In 1976 there were 129,000 abortions, of which only 1 was to save the mother's life, and 9 to prevent grave injury. There were 8 prosecutions for infanticide, none for child destruction, and 4 for procuring illegal abortions.
Assumptions of the Law
These statistics speak for themselves. The lack of prosecutions is baffling, but not so baffling when we probe behind certain assumptions of our law. Lawyers boast of these assumptions in a kind of narcissistic manner, ascribing to the system qualities and virtues it does not always demonstrate. As regards the enforcement of Criminal Law, we depend very much on several assumptions of which the following five are perhaps the most prominent:—
firstly, a clear definition of the crime;
secondly, a revulsion which the commission of the criminal act evokes in the public;
thirdly, efficacy of detection, coupled with the availability of evidence to support charges;fourthly, the availability of information, coupled with the vigilance of the Prosecuting Authorities;and fifthly, the success of prosecution, evidenced by the rate of convictions.
The Law before 1967
It is often alleged that the Abortion Act 1967 merely clarified the position at Common Law, insofar as it put on the Statute Book the defence available to a doctor who, in good faith, performs an operation resulting in abortion. This is correct in the abstract, but there is much more to it. Prior to the Act, under the Offences Against the Person Act 1861, a doctor, or for that matter any other person involved, could have been indicted for a felony; and if convicted liable to imprisonment for life. If in the process the woman died, the abortionist was indictable for murder. Accomplices, and those procuring poison, or instruments with intent to cause abortion were guilty of a crime punishable by five years' imprisonment. In principle, these acts remain offences unless they are excused, or perhaps condoned, by the Abortion Act 1967.
The Infant Life (Preservation) Act of 1929 created the crime of Child Destruction. It provided that any person who with intent to destroy the life of a child capable of being born alive, by any wilful act causes the child to die before the child has an existence separate from the mother, shall be guilty of a crime; and liable on conviction to imprisonment for life. In order to convict it was necessary to prove that the act which caused the child's death was not done in good faith to preserve the mother's life. In other words, the destruction of a child to save the mother was a good defence. For the purposes of the Act, evidence that a woman had at any material time been pregnant for 28 weeks or more was prima facie proof that she was at that time pregnant of a child capable of being born alive.
It is significant that the 1861 Act and the 1929 Act speak of women being with "children" and "infants", so that we have a concept of infant or child arising from those statutes. In trials on charges of murder or manslaughter of a child, or of infanticide, or of administering drugs or using instruments to procure abortion, the jury could convict of child destruction. Conversely on charges of child destruction, the jury could convict of administering drugs, or using instruments to procure abortion. These were clear definitions of offences with drastic penalties, and the two sets of principles were complementary.
The effect of the 1967 Act — a licence to kill
As a result of the Abortion Act, the main object of which we are told was the liberalisation of abortion, the edge of the law became blunted. On the surface, the change of the law appeared insignificant. In fact it was fundamental, and perhaps more far-reaching than the promoters of the Act contemplated. It was fundamental, because it reversed one of the basic assumptions of our system of law, that is that the law serves to protect the life and bodily integrity of the individual. By legalising abortion, admittedly in defined circumstances. Parliament gave a licence to kill, though some specific circumstances were already covered by the Bourne case (1938 3A11 E. R. 615). In this case a doctor was acquitted, since the operation he performed on a girl aged 14, who had been savagely assaulted and raped, was performed in good faith to save her life. The danger to her life was interpreted rather extensively.
However, the promoters of the Act were not concerned with a defence in genuine cases. They wanted a permissive statute, that would provide a blanket legalisation of abortion, and they got it. Abortion thus became legally acceptable, not as an emergency operation to save the mother's life, but as a preventive or therapeutic measure, just in case the mother's life or that of any existing children of her family happened to be at risk; or where there was a risk that the child would be born handicapped. A more vague definition of the principle it is difficult to imagine.
Law and Morality
Two points should be underlined here. Firstly, the relationship between law and morality has been upset. What used to be morally wrong and severely punished became legally right; and since abortion within the scope of the Act became lawful, it also came to be regarded as morally justifiable. Secondly, the Parliamentary approval of abortion— not only enlarged the scope for a legalised abortion, which now covers potential risk to the mother and child and children of the family; but it also opened up the opportunity for claiming abortion on demand, as of right, outside the limits of the Act. Judging by the statistics, the criminal barrier that protected life was burst, and floods inundated the unprotected valley.
The clarity of the Law
One of the other assumptions is that English Law is clear and precise; that our statutes, unlike those of the continental systems, are drafted with such meticulous care that a literal interpretation by the Courts enables them to enforce the will of Parliament. What was the will of Parliament, as expressed in the words of the Abortion Act?
The Act speaks of the termination of pregnancy as if it was the removal of a wart or malignant aggressor upon the woman's body, the intruder being in the popular parlance, though not in the words of the statutes, merely a foetus. There is enough scientific evidence to show that the object of the Act is not a lump of jelly, as seriously argued by a high-ranking Churchman during Parliamentary debate, but a human being at a certain stage of development. It is a child, in the sense of the Infant Life (Preservation) Act 1929, which I have cited earlier. Thus the relevant words of the statute "to terminate pregnancy" devalue human life, and the humanity of the unborn. They also obscure the moral and medical perception of what actually happens in the abortion clinic.
The law, which defies scientific evidence, needs a support in inaccurate language, preferably a dead language, Greek or Latin; hence "foetus", and not child, infant or simply unborn.
As with abortion, so it is with euthanasia, as evidenced by the recent, albeit unsuccessful. Bill. Taking human life is abhorrent enough, but merely administering "euthanasia" may be quite tolerable, especially if one does not read the interpretation section of the Act.
Our law claims also to be logical. However, whilst it protects the property interests of the unborn, and since 1976 enables damages to be awarded for pre-natal injuries, it does not protect the life itself. Well, that is the logic of our law.
Law or Justice
Furthermore, the assumption is that the law promotes justice. There are two basic elements of the notion of justice: equality, and due process of the law. However, if Parliament does not consider the unborn to be a child, not even a human life worth protecting, it is easy to get round the problem of equality. If a child is wanted, the most sophisticated equipment, and all the skill of a medical genius are put at the disposal of those who will use their utmost care to save and preserve life. They may even overdo it, causing physical and mental damage to the subject of their attention. But if the child is unwanted, equipment and skill are employed for his destruction. Equality before the law has in this context a hollow sound.
Another aspect of equality concerns the parents. Normally it takes two to produce a child, and whenever a child is brought to life parental rights and duties are shared equally between both parents, and in law neither is preferred to the other. It was not always so, and mothers' rights have been equated only recently to fathers' rights. With enhanced rights, the duties have also increased, because rights and duties are correlative.
The demotion of fathers
However, the Abortion Act upset the equilibrium because it gave the mother, assisted by her medical advisors, power of life and death over the unborn child. During the Parliamentary debate the father's right to be involved in the decision was considered, and rejected. One can imagine that it would have upset the smooth process of termination. At Common Law, the father was the child's guardian by nature, and his protector. By statute he has been demoted, but if a child is allowed to be born alive, the father willy nilly assumes the legal obligations as laid down by law.
Should a father wish to prevent abortion he has no standing in the matter, so ruled the Court in Paton's case two years ago (Paton v. B. P. A. S. , 1979 2 All E. R. 947). In that case, the father's petition for an injunction to prevent his child being aborted was dismissed as "ill-conceived". The President of the Family Division ruled, quite correctly on a point of law, that the Act did not consider it necessary for the father to be consulted. From a social point of view the judgement reflects the state of the law as undermining family solidarity, and promoting a kind of Amazon Society, dare I say an anti-feminist, violent society. It places the burden of responsibility upon the woman, and absolves the man. In the past he used to provide money so that she would "get rid of it". Today the tax-payer foots the bill, and so the law shelters the irresponsible fathers, but rejects those who want to be responsible.
This has implications for the enforcement of the law, because the fewer involved the greater the difficulty in enforcing the rules, and the less the vigilance. Of course, one has feelings of understanding and compassion for any woman who is unsupported morally and financially, and is under pressure, but her subjective plight should be distinguished from the intrinsic and objective value of human life. The corollary to the protection of the unborn is the protection of his mother.
A father's remedies in Canada
Not so long ago, a father's right to object to abortion was recognised in Canada, in two cases. In 1972 a father of an unborn child was granted an interim injunction by the Supreme Court of Ontario, restraining the mother, the doctor who attended her, the obstetrician who was to perform the operation, and the clinic from taking the life of the infant. The case was brought by the father on behalf of the child as his co-plaintiff, alleging that there was no valid reason to perform the operation, because the pregnancy constituted no danger to his wife's life or health. Since almost immediately the spouses patched up their differences, the case was withdrawn, and lost so to speak to jurisprudence, but the infant was saved. Incidentally, Section 251 of the Canadian Criminal Code is similar to our Abortion Act.
Another successful action occurred a year ago in New Brunswick, Nova Scotia. The father managed to persuade a Family Court Judge to appoint him a guardian for the child in the womb of his wife, and so grant an interim injunction to prevent abortion. There were some doubts whether the appointment of the father as guardian was in conformity with the provision of the Nova Scotia Children's Services Act, because such a guardian is really a guardian ad litem to represent the child in further proceedings regarding the interest of the child. However, it scared off the doctors, because they thought that the father, now being a guardian ad litem protecting the child, might bring an action, and they would not perform the operation because no-one could guarantee that they would not be prosecuted. This was so, even though the prosecution might have been frivolous, or, although they were prosecuted they might not have been guilty of a crime of performing an operation which was not justified by statute. So, if we look back to the Paton case, maybe in appropriate cases fathers ought to be encouraged to resort to court action, and I do not think they have exhausted all the legal remedies in this respect. Moreover, the mechanism of wardship and custody proceedings has not been ruled out.
Due Process of Law
It is a principle of our law that no-one is condemned without being heard, and no-one is judged without being represented. This is the due process of the law, and again we are very proud of that. Now there is an appropriate procedure for legalised abortion, but the unborn is neither represented nor heard. Moreover, for the purpose of the operation he is not the subject but the object of the law. Not being the subject of the law, he is not a bearer of rights and duties, and therefore he is not a party to the process but merely an object of the process, which is going to determine his existence or otherwise. But even so, when the issue is determined, the law is satisfied with a formal justification, which does not have to be verified by authority. This can hardly be called the due process of the law.
A ghastly comparison comes to mind. Some of us remember the so-called Nuremburg Laws, a very simple device invented in Germany by which certain categories of persons were de-humanised, and being deprived of their legal personality they were merely an object and not a subject of the law. To kill a Jew, or a Polish inmate of a camp was not a crime. To degrade them and to experiment upon their bodies was not a crime. It was a job. Of course we are duly shocked. But putting our revulsion aside we can understand, I think, the mental conditioning of those who carried out the experimentation or extermination tasks in those camps; they were persuaded, or persuaded themselves that they were not dealing with human beings, and that they were not committing any crime. This is what is worth remembering, because it is clear that the denial of the humanity of the unborn leads precisely to that state of mind, whether in those who willingly and consciously submit to abortion, or those who willingly and consciously perform the operation or advocate it. This has a direct bearing upon the enforcement of the law, because it indicates complicity, and also indicates a moral stance which has been somehow blunted.
Criminal abuses of the Law
Having discarded the assumption of due process in the case of legalised abortion, it is easy to depart from the norm and, under the cover of the permitted procedure, resort to unauthorised practices, that is abortion on demand or for social reasons. Such abuses are notorious, and here I am not referring to the dramatised cases of crying infants smothered or incinerated; I am not referring to the medical men openly boasting of their achievements or discussing in learned periodicals the efficacy of their methods and new tools. I am referring to operations performed beyond the permitted period of pregnancy, operations on demand backed up by doctors, operations for reasons unauthorised by the Act, and condoned by the certifying doctors, and actively encouraged by the abortion industry.
Regina v. Smith (1974 1 All E. R. 376) demonstrated that a doctor performing an operation without observing procedure was guilty of an offence, but such cases are extremely rarely brought to Court. And when I say abuses of the Act, I simply mean criminal acts punishable by law, ranging from false statements and documentary irregularities to murder; because legalised abortion constitutes an exception to a variety of criminal acts according to Common Law. The effect of the statute is merely to render lawful what otherwise would be unlawful, and constitutes an exception to the rule. This being so it ought to be interpreted restrictively, because it is another assumption of English Law that exceptions to principle and criminal statutes are construed narrowly. However, the Abortion Act, being a permissive statute came to be interpreted extensively, not by the Court but by those who administer it, and enjoy the protection of the Act.
Enforcement depends on revulsion
Why then are there, in the face of the abortion statistics, so few prosecutions, so few trials and convictions if it is taken for granted that the Act is flouted and breaches of the law occur on a large scale? The simple answer is that the sense of revulsion has gone out of our system. First of all there is this tremendous psychological impact of the Act, based on the fiction that we are dealing merely with a foetus and not a human being; that it is a woman's right to decide what to do with her body, as if the mystery of nature could be reduced either to a wart or a beauty spot depending on whether or not it is wanted. Then there is the welfare state mentality, which in some people has considerably weakened the sense of responsibility for personal conduct (including sexual activities), and has created an expectation that society at its own expense will rescue the individual from any uncomfortable situation in which he has landed himself. This is the moral climate which has almost ennobled the criminal act, and weakened the sense of revulsion, which next to the definition of the crime is the cardinal assumption for the enforcement of the law.
The problem of proof
It is common ground that efficacy of criminal law depends upon information leading to detection, and evidence to support charges leading to conviction. The specific nature of the abortion process, and the complicity of the perpetrators, especially those who carry out the much respected professions of doctors and nurses, make it rather difficult for the Prosecuting Authorities not only to obtain information but also evidence to substantiate charges. Since convictions of crime have to be reached not on the balance of probabilities, but beyond the reasonable doubt, prosecutions which do not prognosticate success are not undertaken easily. Faced with the uncertainty of conviction, compounded by the involvement of the counselling and abortion industry both public and private, the Prosecuting Authorities are virtually impotent. They have to obtain the information, and discharge the burden of proof. In this respect the presumption of the innocence of the accused, and the assumption that it is more meritorious to let 10 guilty free than convict one innocent person, which is a respectable principle of our law, understandably plays an inhibiting role as far as prosecutions in this area are concerned.
There is no one to speak for the child, no one to lay charges and support them by evidence, and where profits or earnings of a livelihood enter the field, exit conscience. Since roughly two thirds of abortions are performed in private clinics there are quite a few people making a living out of the business.
What is to be done?
What then ought to be done by those who care for the unborn? Firstly, the climate of opinion has to be changed through information about the unborn, and education about the moral and physical consequences of abortion. Education, in a less technical and more moral sense, begins in school and also at home. At school, in the ethics of sexuality, and the respect for the human person. Parents ought to enquire as to what is being taught, and by whom. Information could be quite revealing sometimes. In the pluralist society in which we live, abortion is not a religious, but it is a humanist issue.
Secondly, the law ought to be reviewed in substance and procedure. It has been suggested that nothing less than the repeal of the Abortion Act will do. That is true, but is it practicable? One can debate whether the opponents of abortion practices should try to reverse the tide by having the Act repealed, or whether they should try some other tactics at least to achieve a piecemeal success. However I would like to suggest that on the question of procedure there is the urgent need of the unborn's right to be recognised, and represented, in order to avoid his fate being decided by his executioners. This should be done as > matter of public interest for only a strict procedure can ensure the observance of the law.
Humanity implies legal personality
On the substantive side, the key to the problem is the recognition of the legal personality of the unborn. To an English lawyer this sounds very abstract, because you would say, "we assume that is so", or question whether it is necessary to have a kind of dramatic statement of fundamental rights. To some of us schooled in the continental legal systems it is necessary to have a dramatic statement, because that is the starting point of the discussion, and on that principle you then build your specific laws.
It has to be brought home to everyone that concern for the unborn is not a monopoly of Roman Catholic or some other religions, but it is a question of faith, a faith in humanity itself, a faith in the dignity of man. The right to live is a fundamental right of every human being, which attracts the corresponding duty of protecting and preserving life. It is, I think, the function of the legal profession to assert that right, and of the medical profession to do everything to preserve it.
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.
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.
