The Association of Lawyers for the Defence of the Unborn
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| Newsletter No 11 Autumn 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
Autumn 1981
Number 11
News and Comment
Recognition of our Association
This Association, whilst numbering among its members eminent representatives of both branches of our profession, had not until recently received much recognition from the Bench. We are pleased to report, however, that earlier this year the Rt. Hon. Lord Wheatley agreed to become Patron of our Scottish branch. Encouraged by this we wrote to an equally eminent member of the Judiciary in this country, and received a most encouraging reply. His Lordship indicated that he would like to associate himself with us, but thought "It might give rise to misunderstanding in some quarters, especially as cases may come before us in which any association of my being with you might come under criticism". However, he was gracious enough to say, "I think you are doing splendidly in forming the A.L.D.U. — the Association of Lawyers for the Defence of the Unborn. It is a most valuable and important cause in which the law has still yet to be developed, and in which I have always been interested".
The support given to us by the two eminent Law Lords at the pinnacle of their profession should encourage us to be far more forthright in making our position known to other members of our profession. Some of us may have felt in the past that, whilst our convictions left us with no alternative but to take this stand, nevertheless our stand was rather an extreme one for a lawyer to take. This may have made us diffident in asking our professional colleagues to join us as members of the Association. Let us have no more fear. The stand we have taken is in the cause of justice and right, of which our profession has always been the staunchest defender.
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Annual General Meeting of the Law Society
Ninety-two members of the Law Society gave notice that at the Annual General Meeting on the 10th July 1981 they intended to move the following motion :—
"That the Law Society draws attention to the fact that the Abortion Act 1967 only authorises abortions in the strictly limited circumstances set out in section 1 thereof, and, being deeply disturbed that the provisions of the said Act are apparently being widely flouted, urges the Director of Public Prosecutions to ensure that whenever there are grounds for supposing that there has been a breach of either section 1 or section 2 of the Act, criminal proceedings be brought under the Offences against the Person Act 1861, the Infant Life (Preservation) Act 1929 or section 2 of the Abortion Act."
At the meeting itself, before calling on Mr. Bell to propose the motion, Sir Jonathan Clarke (the out-going President who was chairing the meeting), saw fit to speak at some length on the motion himself. He indicated that he disapproved of motions not connected with the affairs of solicitors in general, and of this motion in particular because he felt that it was merely an exercise in attracting publicity, and he made clear that he hoped members would vote against it. Mr. Bell then addressed the Law Society for fifteen minutes on the reasons behind the motion, which will be familiar to readers of this newsletter. Mr. Fradd had given notice to the President that he wished to second the motion, but he was not given the opportunity to do so. A few members spoke against the motion on various grounds. Sir David Napley suggested that the motion should be withdrawn, and that the Law Society should consider the merits of the evidence of illegalities to which Mr. Bell had referred. He saw no reason why the Law Society should not take this matter under review, although he did not think it should be dealt with by way of a resolution of this kind. Another member then moved that the meeting should proceed to the next business. This motion was put to the vote and carried by a large majority.
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The legal right to life
"The right to life in English law is protected by the sanctions of the criminal law". This quotation is taken from Halsbury's Laws of England, 4th edition, volume 8 at paragraph 831. There used to be a Latin tag to the effect that "ubi ius, ibi remedium", that is "where there is a right, there there is a remedy". It would be equally true to say that where there is a remedy, there there is a right. English law does not define legal rights. I have a de facto legal right if the law protects that right, whether by criminal sanctions, or by giving me a civil remedy.
The sanctions of the criminal law protect the right to life by punishing those who take it, unless that taking of life was unavoidable, or done in self-defence, or was a punishment imposed by the state for a really grave crime. Does the law recognise in the unborn child a right to life in this sense, thus implicitly acknowledging his legal personality? The answer is yes. The right to life of the unborn child is protected by criminal penalties from the moment of conception. If a mother or a doctor or anyone else wilfully kills an unborn child, the criminal penalties which they may incur are similar to those which protect the life of an adult. Only if and when two doctors form an opinion in the terms required by the Abortion Act 1967 does the unborn child lose his unqualified right to life, and even then only as against doctors. As against the rest of the world, the right to life remains in full force and effect. And even if the right to life is for a time qualified, as a result of two doctors forming the required opinion, nevertheless it springs back into full force and effect the moment that the child becomes capable of being born alive.
The criminal law gives no protection of this kind to a woman's appendix, or to any other part of the human body, or to any living being which is not fully human. This is because it treats them as things, not as persons. From the fact that, in respect of the protection which it gives to their right to life, the law does not differentiate between the unborn child and the adult (save in the one exceptional circumstance referred to above), it is clear that the law recognises that both before and after birth the child is a person, and not a thing.
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A comparison of the results of the Abortion Act 1967
with the claims of its sponsors
Here follows the concluding half of the article by our Vice-Chairman, Mr. Robin Haig, of which the first half under the above title was published in our Summer 1981 Newsletter (No. 10).
"If (opponents of the Bill) were opposing the Bill because they could devise some other means by which abortions would stop tomorrow, and by which there would be no unwanted pregnancies, and none of the tide of human misery which is developed by our uncertain state of the law, then they would have a strong case." (Mr. David Steel, column 1079 of Hansard for 22nd July 1966).
This statement leads us to make a careful investigation into three questions :—
1. Has the Act stopped abortions?2. Has the Act eliminated or even reduced the number of unwanted pregnancies?3. Has the Act eliminated or reduced the tide of human misery?
If the answers are found to be "no" then the Act will have failed as regards the purposes which its supporters had in mind. Let us consider each of these three questions in turn.
Question No. 1 — Has the Act stopped abortions?
In view of the wording of the Act, one may doubt whether its supporters ever had any genuine wish to "stop abortions" either "tomorrow" or indeed at any other time, but without any doubt the effect of the Act has been to make abortions more freely available. Far from abortions being "stopped", those performed upon women resident in England and Wales ('resident women') were soon reported to be over 100,000 a year, and have since increased to 150,000. The Act has clearly failed to stop abortions.
Question No. 2 — Has the Act eliminated or even reduced unwanted pregnancies?
It can be safely assumed that each abortion represents an 'unwanted pregnancy' and many illegitimate children are the results of an unwanted pregnancy. So the number of abortions plus the number of illegitimate children gives a reasonable indication of the number of unwanted pregnancies. In 1969 the total of these figures was 117,000 and by 1977 (the last year for which records are to hand) it had risen to 157,000. There is every reason to believe this increase is continuing, and that many tens of thousands of unnotified abortions are also carried out.
The figures for abortions do not indicate any reduction at all in the number of unwanted pregnancies, and the number of illegitimate babies conceived in this 11 -year period has dramatically increased. It should be noted that the proportion of abortions to live births is now as high as 18%; one pregnancy in five is now 'terminated' under the provisions of the Act, and the rate of illegitimacy (9.7%) is the highest since records have been kept. Thus the Abortion Act has neither eliminated nor even reduced the number of unwanted pregnancies. Once again, it has been easy to show that the Act has failed in yet another of its alleged purposes.
Arguing in support of the Bill, Mrs. Renee Short (at column 1161) implied that it would especially help girls under 16. She said :—
"In 1964 there were 225 offences of unlawful intercourse under the age of 13 known to the police. There were almost 4,000 cases under the age of 16. Does not society owe its protection to these victims? Last year 4,000 girls under the age of 16, most of them still at school, had illegitimate babies".
Government statistics for the years since 1967 show no diminution in the number of cases of unlawful sexual intercourse with girls under 16, and an increase in the number of sex offences with girls under 13. Coupled with the dramatic fall in the birth rate since 1967 and therefore a reduction in the number of children, these figures also show an increase in the rate of offences among the relevant population.
Mrs. Short also implied that the Act would reduce the number of illegitimate babies born to girls under 16. In fact the numbers have remained about the same, at around 4,500 per year, though viewed as a proportion of all births they have increased. Furthermore, if you add abortions to live births it can be seen that the number of pregnancies of girls under 16 has increased from about 5,500 in 1969 to about 9,000 today. Obviously the Act has done nothing at all to protect girls under 16 from pregnancies caused by unlawful sexual intercourse. In this too, therefore, it is shown to have failed in its alleged objectives.
Question No. 3 — Has the Act eliminated or reduced human misery?
Human misery is a difficult thing to quantify, and "reducing human misery" is therefore a useful stand-by argument for those who lack solid evidence to support their cause. Although! specific definition is usually avoided, examples of what supporters of the Act consider to be "human misery" can be ascertained from Hansard. Some examples are considered here.
(a) "Large families"; Dr. Dunwoody, at column 1098 said :—
"I have been for some twelve years a doctor before I came to this House, and I had very considerable obstetric experience. I have previously been consulted by women who wanted abortions, women whom I believed morally and socially ought to have an abortion. I have had to refuse them. I do not believe that this is right for those with over-large families which could become larger still."
It will be noted that this M.P., although a doctor, quoted no instance of a mother whom he believed ought to have had an abortion on medical grounds. Another doctor. Dr. David Owen, at column 1114, said :—
"We should think of the doctor who is faced with the problem of a woman with seven children, who tells him that she shares a bed with a husband and two children."
Mrs. Renee Short, at columns 1163 and 1164 said :—
"The majority of women seeking terminations of pregnancy are married women with too many children."
With the words of these two doctors and Mrs. Renee Short in mind, it is instructive to consider the current position.
In 1977 well over 80% of the 102,237 abortions were carried out on women who had two or less children. Less than 1% of the women who had abortions that year had six or more children. The fact is that many people with large families love children and have moral or religious principles which would be outraged by the suggestion that they should have one of their children killed. Also, in every single year since the Act was passed, married women have always been the minority of those obtaining legal abortions, thus directly contradicting the unproved assertion of Mrs. Renee Short.
(b) "Overcrowding": At column 1114 Dr. David Owen
said :—
"The more we learn about depression, the more we realise how it is influenced by social factors, by appalling housing and over-crowding."
Dr. Owen's remark would appear to be wholly irrelevant, unless he believed that the Abortion Act would improve housing and reduce over-crowding. In practice the easy availability of abortion since 1967 has been used as an excuse for not tackling these problems. The housing situation today, especially for single pregnant girls, is very difficult. Many feel that the lack of housing virtually forces them to have abortions. Thus the Abortion Act, far from contributing to the solution of these problems, has enabled the State to leave them unresolved at the expense of the suffering of pregnant women, who have to go through the misery and guilt of an abortion, and of course the deaths of their children.
Presumably what was in the back of Dr. Owen's mind was that a good way to get rid of the problem of too many people is to kill them between conception and birth. Apart from the suffering to mothers and babies which this policy obviously causes, abortion as a method of population control has many undesirable side effects. These include the long-term physical damage to women by abortions, the creation of a population weighted heavily in favour of the elderly, and the diversion of gynaecologists and hospital facilities from helping pregnant mothers to purely destructive purposes. (For a full discussion of this, see H. Gordon in the British Journal of Hospital Medicine, March 1973.)
(c) Battered Babies
The "battering" (or maltreatment) of babies is a genuine example of real human misery, and no-one will deny that it represents a very grave social problem. Advocates of abortion often suggest that easily available abortion will reduce the incidence of this. In so doing they ignore the fact that abortion is merely an extreme form of baby battering, where the baby is battered to death in all cases. The suggestion, therefore, that abortion will reduce baby battering is hypocritical and dishonest. It is also very naive, because abortion does not even reduce the battering of born babies. As one might expect, if one legalises abortion, thereby giving the impression that the State condones baby battering, offences against born babies are likely to increase. In fact the reported incidence of child abuse has increased by no less than ten times since 1964 in Britain. Even allowing for the possibility that this increase in reported cases may to some degree reflect greater vigilance on the part of the police, social workers and others, there can be little doubt that the actual quantity of child abuse has increased dramatically since abortion was partly legalised.
The thinking behind the theory that abortion will reduce the battering of born babies relies on the false assumption that battered babies are "unwanted" babies, and abortion gets rid of "unwanted" babies. The fact is that it is normal for women to go through a phase in their pregnancy, particularly around the third month, when they have a feeling of rejection towards the baby, owing to hormonal changes which are taking place. This rejection usually only lasts a short time, and does not by any means mean that the baby will be unwanted when born. It cannot be assumed therefore that children killed by abortion would have been unwanted, if they had been allowed to live. On the contrary a study of battered children by Dr. E. Lenoski showed that 90% of them were born following "planned" pregnancies.
It is also significant that the number of children in care increased from 67,100 in 1967 to 101,100 in 1977. This clearly indicates that parents have tended to adopt a less loving and responsible attitude towards their children since the State set its seal of approval on the killing of children before birth. Furthermore, many adoption agencies today report waiting lists containing as many as thirty approved couples for each child who becomes available for adoption, which shows that abortion is not necessary to solve the problem even of those children who are genuinely "unwanted" after they are born.
(d) Suicide
At column 1079, Mr. David Steel said :—
"Many lives have been lost through suicide following conditions in which it was impossible to obtain an abortion, or in which abortion was in some way involved."
Mr. Steel was clearly implying that if his bill became law there would be less suicide. In fact since 1967 the number of suicides in the population as a whole has increased, and among teenagers the number has more than doubled. It is also well known that countries such as Japan and Hungary, whose abortion rates are among the world's highest, have the worst suicide rates.
On the other hand, it is interesting to note that suicide by a pregnant woman is extremely rare — only about one-sixteenth of the rate found among non-pregnant women of the same age.
(e) Rape
At column 1089 Mr. Edward Lyons said :—
"I asked the opponents of the Bill what course they would urge upon their daughter, pregnant under the age of 16 by brutal rape."
An abortion, legalised or otherwise, is clearly an assault which invariably causes the death of the victim. It is no coincidence that the number of crimes of violence has increased, and the number of cases of rape have doubled, since Parliament condoned abortion by voting for the Abortion Act. The traumatic effects of rape are not eased by adding to them the traumatic effects of abortion. Abortion, like rape, can also cause long-term physical damage to the mother. Conception after rape is in any event extremely rare. A ten-year scientific study (reported in "The Educator" in 1970) of 3,500 cases of rape in the U.S.A. revealed not a single case of pregnancy resulting.
(f) One-Parent Families
The easy availability of abortion resulting from the Abortion Act has undoubtedly meant that many single pregnant women who would have preferred to keep their babies have been unable to resist pressure from landlords, parents and boy friends to have an abortion. People who bring pressure on women to get rid of their child are usually motivated by a self interest which has little or no consideration for the physical and psychological consequences to the woman. In addition, the availability of abortion has meant that housing and other authorities who should be supporting a single mother with a baby have shown themselves very much less sympathetic, and it is implied that she has been irresponsible not to "get rid of it". It is probably as a result of this attitude that the financial recommendations of the Finer Committee that there should be special benefits for one-parent families have not been introduced. In fact this is simply one more area where the Abortion Act can be shown to have increased the sum total of human misery, and to have made life more difficult for women.
Conclusions
There are other areas of human misery which could be considered, for example the increase in premature births and congenital malformations caused by previous abortions, but this present report has confined its attention to particular examples of misery singled out by supporters of the Abortion Act. It is quite clear that if the enormous amount of time, talent and money which was diverted by the Abortion Act into the destruction of babies had been put to the cause of relieving the real problems of pregnant women, an enormous amount of human misery could have been avoided. Even if the better, happier society promised by the supporters of the Act had materialised as a result of it, this could not have justified the killing of nearly two million human beings to achieve it. It is high time that it was generally recognised that not one of the benefits promised by the Act has in fact materialised, and the sooner it is repealed the sooner it will be possible to use the resources of the State which have been so badly diverted and misused, for providing the positive, practical help which pregnant women so urgently need.
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Capable of being born alive
We recommend all our members to study carefully the article by Gerard Wright, Q.C., in the New Law Journal of 19th February 1981 at page 188. That article shows conclusively that the "viability" of the child is immaterial in proceedings for the crime of Child Destruction. The life expectancy of the victim is irrelevant in proceedings for murder, manslaughter or abortion. It would be inconsistent with the general principles of our law if, in the very similar offence of Child Destruction, it was a defence to show that the victim had a short life expectancy. Mr. Wright shows conclusively that the only essential element is capability of being born alive, that is of surviving birth.
The relevance of this becomes immediately apparent if one recalls a B.B.C. interview with Professor Peter Hunting-ford, which took place on the day following an incident at Whiston on the 4th January 1979. On that occasion a child was born alive following an abortion operation and was left to die. Professor Huntingford was invited to comment on the ethics of this behaviour by the B.B.C. A transcript of the interview with him follows :—
Announcer: "Libby Fawbett discussed the case with Peter Huntingford, Professor of Obstetrics and Gynaecology at the University of London. She asked him how old the foetus had to be to support its own life without medical help."
Professor Huntingford: "The earliest that I have known of is 26 weeks. I believe that there are reports of babies having survived who were born at 24 weeks, but I am not aware of any babies who have survived earlier than that." Interviewer: "So you would say that the baby in this case at around 22 weeks probably wouldn't have survived?"
Professor Huntingford: "I would have said that the chances of it surviving were very small indeed."
Interviewer: "But would it have lived so long?"
The Professor: "Oh yes I think that — I understand the baby survived two hours. That length of time is not an unusual period for survival without support, and if it had been given intensive care it may have survived for as long as 7-10 days. But I think it is most unlikely that it would have survived beyond that, and if it had survived that it would have been a normal individual, as far as being independent of other people is concerned."
Interviewer: "If you were carrying out an abortion is it normal for the foetus to be born alive?"
Professor Huntingford: "No, I think if one has agreed to carry out an abortion for a woman then one's objective is that the baby is born dead. I think this is in the best interests of everyone, and one can use techniques that almost guarantee that. One can never guarantee anything in this world, but one can almost certainly guarantee that the baby is born dead, and then this particular dilemma, this situation that arose does not have to happen."
Interviewer: "But is it a dilemma for a doctor who takes an oath to maintain and save life?"
Professor Huntingford: "Well, it is obviously a dilemma for some doctors. It isn't for me. We don't actually take an oath, but my objective in life is to save life, but it isn't a dilemma for me, because I am giving a service to a particular woman, and if we have agreed between us that the objective is to cause an abortion and the foetus — the baby — should not survive, then I will do my best to try to ensure that for her."
Interviewer: "Even at a very late stage?"
It must be apparent to everyone that if Professor Huntingford uses techniques to guarantee that a baby is born dead, this must be because he believes that without the techniques the baby would be born alive. It must further be apparent that if Professor Huntingford believes that the baby will be born alive but for his special techniques, then he must believe that the baby is capable of being born alive.
Professor Huntingford: "Yes. Within the law this is up to 28 weeks. But we must remember that the requests for late abortions are very few and far between; less than one in one thousand, and therefore this situation only arises very exceptionally, and always under very special circumstances."
It is quite clear, in the light of Mr. Wright's article, that assuming Professor Huntingford has sufficient medical knowledge to know when a child is capable of being born alive — and he obviously has very considerable experience on this question — then every time he uses his special techniques he is committing the crime of Child Destruction. Since the Director of Public Prosecutions must be presumed to know the law, and since this interview was broadcast to the whole nation, the Director of Public Prosecutions must be presumed to know that Professor Huntingford on his own admission commits the crime of Child Destruction. Why does he not act?
As to Professor Huntingford's statement that an abortion may be performed within the law "up to 28 weeks", the most charitable assumption one can make is that he does not know the law relating to abortion.
Legal remedies of the father
Mr. Gerard Wright has also turned his attention to the remedies available to a father, where the mother of his child is seeking an abortion. He has prepared a draft summons and affidavit to lead to an injunction in a case where there are grounds for believing that the abortion would be illegal. These draft documents may be obtained from our Secretary on request.
Members advising in such a situation might also like to consider the possibilities of exercising the powers given by section 16 of the Domestic Proceedings and Magistrates' Courts Act 1978. This section gives either party to a marriage power to apply for an order "That the respondent shall not use or threaten to use violence against the person of a child of the family". Would the word "child" in this context include an unborn child? The word "child" is used in section 50 of the Act which amends the Affiliation Proceedings Act 1957. Section 1 of the 1957 Act starts off with the words "A single woman who is with child", from which it is quite clear that the word "child" in that Act includes an unborn child. This very strongly suggests that the word "child" in section 50 of the 1978 Act must also include an unborn child, and if it has this meaning in section 50 why should it not have this meaning in section 16?
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Law, religion and the "goods of man"
Our Association includes among its members men and women of all faiths and none. This is because our stand is based on self-evident truth, not revealed truth. Once science discovered that human life began at conception, it became self-evident that deliberately to end that wholly innocent life is unjust. Nevertheless, this truth has the moral support of all major religions, and the teaching of their faith undoubtedly strengthens the convictions of many of our members. No religious leader in history, however, has ever spoken out against abortion as frequently and forthrightly as Pope John Paul II. In view of the impending Papal visit to our country, it may be of interest to our members to hear precisely what he has to say on this subject, and to compare the reasons for his opposition to abortion with those of this Association. On the 19th February 1981, addressing about one million people who had gathered to hear him speak at Cebu in the Phillipines, he said :—
"From the moment of conception, and through all subsequent stages, all human life is sacred, for it is created in the image and likeness of God. Human life is precious because it is a gift of God, whose love knows no limit; and when God gives life, it is for ever. Whoever attempts to destroy human life in the womb of the mother, not only violates the sacredness of a living, growing and developing human being, and thus opposes God, but also attacks society by undermining respect for all human life. I want to repeat here what I stated when visiting my homeland — If a person's right to life is violated at the moment in which he is first conceived in his mother's womb, an indirect blow is struck also at the whole moral order, which serves to ensure the inviolable goods of man. Among those goods, life occupies the first place. The Church defends the right to life, not only in regard to the majesty of the Creator, who is the first giver of this life, but also in respect of the essential good of the human person."
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.
