The Association of Lawyers for the Defence of the Unborn
 |
| Newsletter No 3 Autumn 1979 |
Contents: Progress Report; Director of Public Prosecutions; The Final Solution; Menstrual Aspiration; Human Rights and Legal Rights; Private Abortion Clinics and the Law
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 1979
Number 3
News and Comment
Progress Report
Membership
Our membership continues to grow, and the Association now has more than 370 lawyers. This has been mainly in response to our advertising campaign in the legal press. We are grateful to all our members who have sent in donations to enable us to pay for these advertisements, and also to produce this newsletter. We take this support to be evidence not only of the generosity of our members, but also of the strength of feeling about this issue in the profession.
Constitution
A constitution for our Association was approved at the Annual General Meeting, and copies of this are now available from our Secretary on request.
Europa Pro Vita
Following a resolution passed at a committee meeting of this Association last month, the Association has affiliated to the above organisation, which is based in Belgium, and acts as a centre for exchange of information among a large number of European Pro-Life organisations. Pro-Life associations of lawyers such as our own already exist in some of the European countries, and it is hoped that a meeting of representatives of the various associations can take place, probably in Belgium, in the Spring of next year. To hear of the experiences and work of other lawyers' organisations, and to discuss mutual problems, should be most beneficial to our Association.
Director of Public Prosecutions
Our Secretary is continuing to draw the attention of the D.P.P. to flagrant cases where members of the medical profession boast in public, and even on the radio and television, that they perform abortions which must of their very nature be illegal. We would be grateful if any members who hear or read statements of this kind would let us know. For example, a letter in the British Medical Journal for the 15th September said as follows :—
"Sir, I refer for termination anyone who requests it, for — pace Mr. V. Tunkel (28 July, p 253) — the law is generally regarded as being one of "abortion on demand"."
The letter, of which these were the opening words, was written by a London doctor.
Our Secretary has also drawn the attention of the D.P.P. to specific cases where children are born following abortion, only to die shortly thereafter of their injuries. Such children are obviously capable of being born alive, and had they died in the womb the crime committed would have been child destruction (Infant Life Preservation Act 1929 s.l.). Since they survived the attempt to kill them, and died subsequently, the crime committed is clearly murder (R v West [1848] 2.C. and K.784 and Archbold 1979 40th edition at para. 2463a). However, even when names and dates are specifically quoted to him the D.P.P. has adopted the attitude of the famous wise monkeys, who could neither see nor hear any evil.
The D.P.P. apparently still does not accept the contention of this Association that many children are capable of being born alive long before they are capable of sustaining life independently of their mother. The crime of child destruction is of course committed if the child is "capable of being born alive". Thus the interpretation of these words is crucial for enforcement of the law, and how you define them depends on what definition you use for "live birth". This Association accepts the following definition from the official record of the World Health Organisation 1950/28/ 17, 1967/160/11, 1976/223/18 as follows:—
"Live birth is the complete expulsion or extraction from its mother of a product of conception irrespective of the duration of the pregnancy, which after such separation breathes or shows any other evidence of life, such as beating of the heart, pulsation of the umbilical cord or definite movement of voluntary muscle, whether or not the umbilical cord has been cut or the placenta is attached. Each product of such birth is considered a live birth."
A.L.D.U. has been advised by an eminent gynaecologist that from 10 to 20 weeks after conception he would expect the foetus to be alive when born, within the meaning given above. We therefore firmly maintain our view, based on statistical evidence produced by the Government itself, that in the case of a very large number of abortions, maybe the majority, the crime of child destruction is being committed.
Since both the law and the facts are so clear cut on this issue, it is hardly surprising that the D.P.P. has been unwilling, or probably unable, to give any satisfactory explanation to our Secretary for the failure of the authorities to investigate such cases, with a view to prosecution.
The Final Solution
It had to happen. Hitler found lawyers to approve of his "final solution" to the problem of the non-Aryan. There had to be lawyers who approved of David Steel's "final solution" to the problem of the unborn child. To call it a final solution is not an exaggeration, because quite clearly the effect if not the intention of the 1967 Act is that any unborn child who is regarded as a problem will probably be killed before birth, and in fact more than 300 are being killed every day. Now lawyers have been found who apparently think that this is a wonderful state of affairs, and they have banded together to defend it in a so-called "Co-ordinating committee of Defence of the 1967 Abortion Act". It is indeed a black day for our profession when lawyers can be found to defend publicly such gross injustice, and inhumanity of man to man.
********
Editors' Note :—
We are pleased to be able to print in this newsletter the following article by Mr. Robin Haig, a solicitor and the vice-chairman of this Association, on the illegality of Menstrual Aspiration. This is a topic of immediate importance, because women are increasingly being given this treatment, which is almost certainly illegal, by the National Health Service.
Menstrual Aspiration
Menstrual aspiration or regulation is a technique in which "the womb is vacuumed empty" (as in the vacuum method used for early abortions), "but within 10 to 18 days of a missed period". (Daily Telegraph, 16th January 1978.)
The great advantage of this procedure over abortions carried out in later stages of pregnancy, according to its proponents, is that it can be carried out "early, easily, safely and simply" and that the risks (to the woman) are "minute". The great problem and the one which brings the practitioners of this technique into difficulties with the law is that it is not possible to determine definitely that a woman is pregnant so early in her pregnancy.
Background
The menstrual aspiration technique first gained prominence when Mr. W. O. Goldthorp, a consultant gynaecologist at Tameside General Hospital, writing in the B.MJ. (1977, 2, 562-564) described how he had carried out the technique. He was subsequently warned by the D.P.P. that the procedure was illegal and he stopped using it. In March 1979, the D.P.P.'s views were apparently overruled by the Attorney General and the Solicitor General, who gave a joint opinion "that an abortion carried out by menstrual aspiration would fall within the provisions of section 1 of the Abortion Act 1967 provided that the two medical practitioners to which that section refers believed in good faith that the woman was pregnant and that all the other requirements of the section were satisfied." (Letter from Law Officers' Department 17-5-79.)
Menstrual Aspiration and the Offences Against the Person Act 1861
Under the O.A.P. Act an offence is committed if acts are done to procure the abortion of a woman "whether she be or be not with child" (ss. 58 and 59). The Abortion Act, on the other hand, only exempts doctors from prosecution "where a pregnancy is terminated" (s. 1). If there is no pregnancy then clearly the Abortion Act does not apply but the O.A.P. Act may still apply. So that every menstrual aspiration carried out on a woman who is not pregnant, whatever may be the state of belief of the doctors, is almost certainly illegal.
Further, in order to meet the criteria laid down in the Abortion Act, exempting doctors from prosecution, the doctors concerned must be of the opinion
"formed in good faith :—(a) that the continuance of the pregnancy would involve risk to the life of the pregnant woman or of injury to the physical or mental health of the pregnant woman or any existing children of her family greater than if her pregnancy were terminated or(b) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped". (Sect. 1.)
If the doctors do not even know (whatever they may believe) that the woman is pregnant they cannot possibly decide in good faith the balance of risks which the Abortion Act requires them to decide.
The Law Officers' Joint Opinion
This opinion refers to "an abortion carried out by menstrual aspiration . . . "; there can be no abortion if there is no pregnancy and so it is quite clear that the Law Officers are referring only to cases where the woman is pregnant. They are not clarifying the position one way or the other, they are simply stating the obvious, viz.: that if an abortion is carried out in accordance with the provisions of the Abortion Act then the requirements of the Act are satisfied. The introduction of good faith into this argument is absurd, in any event. There is no need today for doctors to "believe" that a woman is pregnant — there are tests available which can conclusively determine whether or not a woman is pregnant. The fact is that these tests cannot prove the presence or otherwise of pregnancy early enough for the menstrual aspiration procedure to be carried out. Because of this "difficulty", the medical profession is now being asked to return to the diagnostic techniques of the medieval ages, namely guesswork, to satisfy the urge to destroy.
Menstrual Aspiration and Ethics
Two particular points arise out of the comments made by the supporters of menstrual aspiration. First, should a technique be recommended just because it is easy, simple and safe? After all, the gas chambers were built in pre-war Germany in order to make the killing of Jews easier, safer and simpler. Dr. Malcolm Potts of Population Services International is reported as having urged, at a meeting of pro-abortion doctors that the law should be changed "to allow non-specialists to be trained to perform (menstrual aspiration) at family planning clinics and in family doctors' surgeries" (Daily Telegraph, 16-1-78). This is nothing more than legalised back-street abortion.
Secondly, whilst the propriety of carrying out any medical procedures, such as abortions, where, in the vast majority of cases, the patient is perfectly healthy, is certainly questionable, the carrying out of menstrual aspiration on women who are not only healthy but are not even pregnant, must be even more questionable. The evil is compounded in the present climate of lack of funds and staff in the health services, when much-needed time and money is spent on procedures which are not necessary from any point of view.
********
Reprints are now available at lOp each from our Secretary of the article "Abortion — A clarification", written jointly by our Chairman and Secretary, which appeared in the New Law Journal of 27th September last. This article is believed to give a full and correct statement of the law relating to abortion as it stands today, as opposed to the version of it which has appeared so often this year in the popular press, which generally states the law in some such incorrect way as "abortion is legal on demand up to 28 weeks". Please order plenty of copies of this reprint from us, with a view to making them available to colleagues and friends.
********
Human Rights and Legal Rights
To say that I have a "right" means that I have power to take a certain course of action, and that nobody may legitimately or properly stop me from taking that course of action, or punish me for doing so. Legal rights may arise from a contract, such as a right of way, or from a decision in the courts, or from statute.
When people talk about human rights they usually mean powers which people ought to have, rights which the law ought to protect, rather than those which are actually protected. Views about human rights are derived from observation of the human condition, what a human being is, and what powers a human being needs, in order to survive and flourish and attain his or her potential.
One of the objects of modern legislation has been to protect human rights which society as a whole accepts as desirable. This it does in two ways, by giving the person whose right is interfered with a remedy against the person interfering, and also by imposing criminal sanctions, enforced by the State, on those who violate such rights.
Human rights and the Courts
However, it has always been the policy of the legal system of this country, in making rights legally enforceable and protected, to take care that in granting a right to one body of people it does not thereby deprive another body of an equally valuable right. The Courts have always taken this into account when coming to decisions affecting the freedom of the individual. They have been guided by the old maxim, "Sic utere tuo ut alienum non laedas". This means "So to use what is mine as not to harm what is another's". For example, the Courts have always protected rights of property, which includes a right to bring anything I choose on to my own land, but if I bring a dangerous object on to my land, I have no right to allow it to escape on to the land of my neighbour, and if it does I must pay him compensation. And in most cases damage to the property or person of another without the consent of that other would be a violation of his rights which the State itself would punish.
Pressure groups and human rights
Many pressure groups exist in this country who allege that various powers should be granted by the law to the group they represent, on the ground that such powers are a human right, which should be legally enforceable and protected. One such group for example, calls for "a woman's right to do as I please with my own body". Unless such a right is hedged with the qualification that a woman may not do with her own body anything which harms the body or property of another, it would be contrary to the principles of our legal system to make such a right legally enforceable.
Women's rights and children's rights
The same principle applies to pressure groups who call for "A woman's right to choose whether or not to have a baby". In one sense every woman, except in cases of rape, always has a choice about becoming pregnant. But what the pressure group is calling for is a legal right, once the baby has been conceived, to bring about the death of that baby. No doubt a legal right to kill unwanted unborn children, if granted by law, would soon be followed by a call for a legal right to kill unwanted born children, handicapped children, elderly relatives, and so on. Any such legal rights would be totally at variance with the principles of our legal system. So far as children between conception and birth are concerned, once the scientific fact is acknowledged that such a child is "alienum" in the terms of the old legal maxim (that is, another person), it can be seen that his or her position is no different from that of any other minority group in our society.
Women's rights and the Abortion Act 1967
Incidentally, the frequently-heard allegation that women were granted legally enforceable rights by the Abortion Act 1967 cannot stand up to even the most cursory inspection of that Act. The Act did not even grant a legal right to doctors to perform abortions, in the sense of giving absolute protection from civil or criminal actions to a doctor who performs abortions. It merely said that an abortion would not be a criminal offence if performed in certain circumstances.
However, that Act did represent a fundamental breach with the principles of our legal system, in that a doctor may now in some circumstances use his own body and property to harm and destroy the body of another, without the consent of that other, and without incurring any punishment by the State. As a result, a fundamental human right ceased to be a right protected by the law in this country.
The aims of this Association
One of the aims of this Association is to persuade our profession that the right to life is a fundamental right, which the State should protect by criminal sanctions. The law should of course take into account cases where there is a conflict of two equally important human rights, but no human right can be more important than the right to life, which is a "sine qua non", the first and fundamental right on which all other rights depend and which must be protected above all others. It is the duty and the privilege of lawyers to be committed to justice and to resist injustice. Abortion is one of the most radical injustices that can be perpetrated, and every lawyer, simply by virtue of being a lawyer, should be committed to opposing it.
********
Private Abortion Clinics and the Law
Do private abortion clinics operate within the law? One of our members recently took a statement of evidence from a client, who wished to sue the clinic where she had had an abortion. She has given her consent for this evidence to be published provided her name is not disclosed. The evidence begins by explaining that she made an appointment for the abortion by telephone, without seeing anyone. She arrived at the clinic at 12.30 p.m. on the day before the operation, and paid a fee of £10 at that time. The receptionist asked her no questions about her health or her background. She then waited until 2.40 p.m. with other girls in the waiting room. Then a man appeared out of a door which led out of the waiting room. Here is the description, in her own words, of the interview that followed.
Abortion as a cure for acne
"At 2.50 p.m. a man appeared out of another door to this minute waiting room we were all in. He called my name. I went in there. He had scruffy trousers on and a maroon big baggy jumper with one hole in the elbow. It was written on the door that he was a gynaecologist, so I assumed he was one. I sat down. He said "Oh my God, what terrible acne. It's £10 for the examination. You have to have an examination, because it has been known for girls to get on the operating table and not be pregnant." He said "Go and take all your clothes off and lie on the bed." I did that; it was freezing. No heating. He examined me internally; very brief. He said "You're a bit fat" and prodded me. He said "That's all, you can go now". I said, "Is that it?" He said "Yes”. I got dressed again and went out to the waiting room."
She was then shown to a dormitory where she spent the night. The next day at reception she paid another £56. She was then shown into a ward where she was told to undress and put on a gown. She was then taken into the operating theatre, given an injection, and woke up later in dreadful pain. Afterwards she was very ill, and it was about this that she later consulted a solicitor, with a view to bringing proceedings.
At every stage in this procedure, she was one in a long line of girls going through the same process. The operating theatre appeared to work non-stop through the day on a sort of conveyor-belt principle. The procedure appeared to be standard for all the girls, so far as she could tell.
No evidence on which to form an opinion
This procedure must inevitably raise questions about the legality of the operations involved. It will be recalled that under the Abortion Act 1967 a doctor is only protected from proceedings under the law relating to abortion if two doctors have formed an opinion in good faith that the balance of risk to the health of the pregnant woman favours the operation. In the case of this girl, at no time was she asked any questions about her physical or mental health. It would appear, therefore, that the doctor she saw, if he was one, had no evidence on which he could form an opinion about her physical or mental health. He did not call for her past medical records. He did not raise any questions which could have thrown any light on her medical health or any other of the grounds mentioned in the Act. So far as she was aware she was in perfect physical and mental health, and he said nothing to suggest the contrary, except to comment on her acne. She was not seen by any other doctor who could have formed an opinion, apart from the surgeon, who presumably saw her when she was unconscious and therefore unable to give him any evidence.
The Opinion of one Doctor
Her evidence was emphatic that she only had one interview from start to finish, so that if an opinion was formed by two doctors, as required by the Abortion Act, apparently the other doctor managed to form his opinion without even seeing her. If this is the procedure which the Act contemplated, why did it specify two doctors? Quite clearly the purpose of specifying two doctors is so that the opinion of the second one can act as a check or counterbalance to a mistaken opinion formed by the first. It is apparently normal practice nowadays in the private clinics for only one doctor to see the patient. This is quite clearly a breach of the letter and spirit of the Act, and makes any subsequent abortion a criminal offence.
Private abortions are usually illegal abortions
In this particular case the abortion damaged her health, so that there is no doubt that if the opinion was formed by two doctors that on balance the operation would benefit her health, then this opinion was clearly wrong, because there was nothing the matter with her health before the operation. However, the patient's health cleared up before proceedings were brought, and under the circumstances she decided not to take the matter further. Despite this, there would appear to be little doubt that the operation was completely illegal, and should have been punished with up to life imprisonment, as provided by the relevant statutes. When one considers that some 70,000 abortions every year are carried out in such clinics without any prosecutions resulting, and presumably with the approval of the D.H.S.S., which must be aware of the procedure used, we have reached a situation where those whose duty it is to supervise these clinics are clearly conniving at breaches of the law on a massive scale.
Private prosecution of clinics
The only way in which illegality can be proved is by a successful prosecution, and if the public authorities are unwilling to act, this will have to be brought privately. There are members of this Association who would be willing to consider a private prosecution in the appropriate case (i.e. if Counsel considered there was a reasonable chance of success) and if any member of the Association should hear of a case where it might be possible to prove illegality, would he or she please let our Secretary know.
Public Finance for Private Clinics
It has been made public that the N.H.S. has plans to pay private abortion clinics to perform abortions on N.H.S. patients. They try to justify this on the grounds that the N.H.S. has a duty to provide abortions, and that where adequate facilities are not available they are entitled to pay someone else to do it for them. If successful prosecutions can be brought against the clinics, thus proving the illegality of the abortions provided by them, it would be virtually impossible for the N.H.S. to justify expenditure of public money on paying for such abortions. Thus a successful prosecution of one clinic might well save many lives.
The N.H.S. is of course well aware that the vast majority of abortions performed in private clinics are not done on medical grounds, even if risk to existing children of the family is regarded as such a ground. A survey was commissioned last year by the Wessex Regional Health Authority of induced abortions on women in the region. The report included findings on the reasons given for seeking an abortion by women in the region who had had private abortions. The reasons for the private abortions given to the doctor carrying out the survey were as follows :
Unstable personal life |
26% |
Material circumstances |
21% |
Age/immaturity |
18% |
Family complete |
15% |
Career |
11% |
Not husband's child |
2% |
Mental health |
1% |
Physical health |
1% |
Others |
5% |
It should be immediately obvious to anyone with the slightest acquaintance with the Abortion Act 1967 that very few of the grounds given by these women correspond with the grounds laid down by the Act. Despite this, no prosecutions followed this survey, and presumably the clinic involved (which incidentally was the same as that referred to at the beginning of this article) is still carrying on as before, with the knowledge and tacit approval of the N.H.S.
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.
