The Association of Lawyers for the Defence of the Unborn
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| Newsletter 13 Spring 1982 |
M. N. M. BELL, M.A.(Cantab.) Chairman
T. G. A. BOWLES, M.A.(Cantab.) Hon. Secretary
40 BEDFORD STREET
LONDON
WC2E 9EN
Spring 1982
Number 13
News and Comment
Progress of the Association
We are pleased to report that the Association now has more than one thousand members. Although just over half of all our members are solicitors practising in this country, nevertheless we now have members in over twenty countries overseas, all of whom we are encouraging to set up Associations similar to our own in their own countries. Members in Western Canada, and in the Republic of Ireland, have already taken steps to do this, following their enrolment in this Association.
We have also been encouraged to receive three letters from Circuit Judges in the last few months, expressing their warm support for the work which this Association is doing.
Also during 1981, our Chairman visited Cardiff and Edinburgh, in the former case with our Secretary. Branches of the Association in Wales and Scotland have been set up with their own committees for promoting the work of the Association in those parts of the United Kingdom. The Association very much hopes that our members in Northern Ireland will also set up their own branch during the coming year.
Election of Officers 1982
Under our constitution the election of the four officers of the Association, that is the Chairman, Vice-Chairman, Treasurer and Secretary, has to take place every three years at the Annual General Meeting. The next Annual General Meeting will be held on the 19th June 1982, and since the present officers will then have been in office for three years, elections will take place. The purpose of having the election of officers every three years is to ensure some continuity in administration of the Association, but also to allow the election of new officers to bring in healthy afresh air and new ideas. The Committee of the Association consists of the elected officers, and additional committee members appointed by them. At the present time there are 12 committee members including the four elected officers.
The procedure for the 1982 elections has been drawn up by the committee, and will be as follows :—
Any member of the Association wishing to nominate any other member for any of the four offices must submit his nomination, accompanied by the signatures of five other supporting members and the acceptance of the nominee, to our Secretary on or before the 1st May 1982. The names of all nominees will be published in the Newsletter which is due to come out at the beginning of June. Each member of the Association may cast one vote for each officer, and a member may either vote at the A.G.M. if he attends it, or by post if he is unable to do so. Postal votes must be received by our Secretary by Saturday the 19th June 1982. Only persons who are members of the Association on the 1st March 1982 (including the existing officers) will be eligible to stand for election as officers of the Association.
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Irish A.L.D.U.
We are delighted to extend our warmest congratulations to our professional colleagues in the Republic of Ireland, who have recently set up an Irish A.L.D.U. We have received the following report from them, and we feel sure all members of this Association will be delighted to hear of the good progress which they are making.
At a meeting held in Dublin on the 28th May 1981 attended by eight lawyers, the Irish Association of Lawyers for the Defence of the Unborn was established. Our first members came together through their associate membership with the English A.L.D.U. whose aims they have adopted. We are most grateful for the invaluable help and encouragement received from the English Association. Whilst there is no legalised abortion in Ireland, many Irish lawyers are deeply concerned about the efforts being made by a highly organised pro-abortion lobby to bring about a climate of change and ultimately make abortion in Ireland legal. It is our Association's firm intention to ensure that this never happens.
On writing to friends and associates in the profession, our first members received an encouraging response and our membership is now approximately 120. We felt it particularly important to approach leading politicians who are also lawyers and wrote to leading lawyer/politicians in the three main political parties, Fianna Fail, Fine Gael and Labour. Almost half of those written to became members.
Mr. Charles Haughey, Solicitor, of the Fianna Fail Party who was Taoiseach at the time of our first meeting, wrote to the Association expressing his whole-hearted support for its aims. Mr. Garrett Fitzgerald, who is not a lawyer, succeeded Mr. Haughey as Taoiseach when the Fine Gael/ Labour coalition government came into power after the general elections about that time. He also sent a letter of support to the Association. We are very encouraged by the support received from lawyer/politicians, and also by the fact that both this year's President of the Incorporated Law Society of Ireland, Mrs. Moya Quinlan, solicitor, and last year's President, Mr. Bruce St. John Blake, solicitor, have become members.
Article 40 of the Irish Constitution guarantees the right to life of the citizen, but does not mention the unborn child. This does not necessarily preclude the unborn child from being protected by the Constitution. Recent Supreme Court decisions have favoured the view that the rights of the unborn child are indeed guaranteed by the Constitution. In G.-v.-An Board Uchtala (113 I.L.T.R. 25 [1978]) Mr. Justice Walsh stated that a child "has the right to life itself and the right to be guarded against all threats directed to its existence whether before or after birth .... the right to life necessarily implies the right to be born, the right to preserve and defend and to have preserved and defended that life". Nevertheless we believe it vital that all uncertainty be removed and are engaged along with many other pro-life groups in the country in a campaign to have the constitution amended to guarantee specifically the rights of the unborn child. A most important development in this campaign is the commitment given by the two main parties, Fianna Fail and Fine Gael to introduce a referendum for the necessary amendment.
The Association's Inaugural Meeting took place on the 28th November 1981 at the Hibernia Hotel, Dublin. After this meeting the Association began working to increase membership and broaden the scope of its activities.
Paul Byrne Solicitor and Secretary Irish A.L.D.U.
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Private Abortion Clinics
In our Autumn 1979 (No. 3) Newsletter, we reported on a private abortion clinic, and in particular on the case of a patient who had had an abortion at this clinic whose statement of evidence made it clear that it was in effect an abortion on demand. We recently received a report, from a doctor practising in Hampshire, on the Wistons clinic at Brighton run by the British Pregnancy Advisory Service. This clearly shows that the case which we reported in our earlier Newsletter was by no means untypical of the practice of abortion clinics, and casts grave doubts on the claim of such clinics to be acting within the law. This matter is of such importance that we have obtained the consent of the doctor to reproduce his report in full, and it is as follows :—
I am a general practitioner, at present practising in Hampshire. I have been qualified since 1953.
I here record my impressions of the operations of the above clinic, as I have become aware of them over the past six or seven years. I am certain that these observations, and the conclusions which I have drawn therefrom, would be confirmed by many other practitioners were they to be asked. I believe that such a survey should be mounted in order to ascertain whether the requirements of the 1967 Abortion Act are being honestly observed, by this particular clinic and others.
In common experience with other general practitioners, I am consulted from time to time by women whose state of pregnancy is not in accord with their wishes. In many of these cases there are no valid reasons, medical or psychiatric, to justify termination within the terms of the Act. The mother is perfectly healthy in mind and body, but finds herself placed in a difficult situation socially. I am often sympathetic to these women, but can find no valid reason for referring them for termination. Then I find a report on my desk from the Wiston clinic to the effect that an abortion had been carried out. Sometimes they thank me for referring the case, when I have done nothing of the kind. Never are these reports signed by any doctor, or any clinical reasons given for their actions. In nearly every case, I have known, without a shadow of doubt, that there were no genuine reasons for abortion. Never have I known a case refused. In short, it is my firm impression that this clinic provides abortion on demand.
In this country, surgeons and gynaecologists always provide a full, signed report when they have operated on one of my patients. It is not only a matter of medical ethics, but a positive safeguard for the patient. If a surgeon operates under a cloak of anonymity, then there is only one conclusion that can be drawn. In a recent case a patient has confirmed to me, herself, that no medical reason or psychiatric reasons existed, but she was aborted just the same.
In fact, no-one enquired into her history along these lines. She was asked if she wished the abortion to be kept secret from her own doctor. She was asked if she wished to go ahead with the operation, after she had been given pre-medication. Women who have been involved with these clinics fear very naturally that, were their operation to be proved unlawful retrospectively, then they would be culpable. They are reluctant to talk openly, and I believe that the clinics feel safe in this knowledge.
I ask myself why the regulating authority does nothing to ensure that these clinics conform to the letter and spirit of the Act. One safeguard, a safeguard which operates within the National Health Service, and in every other profession, as far as I know, is the requirement for consultants to furnish a proper report, undersigned by them, and clearly revealing their name, qualifications and status. Why is it that these present-day abortionists, licensed by the Government, operate under the same dark cloak of secrecy, and in the same furtive way, as "back street" abortionists whom they replaced?
Dr. R. J. Vaughan Emsworth, Hants. 3 December 1981.
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Notification of Abortion
In our Summer 1981 Newsletter (Number 10), we drew attention to the fact that certain doctors in Wales were failing to notify abortions as required by the Abortion Act 1967. We pointed out that this was a serious criminal offence. Nobody has disputed the accuracy of our information published in that Newsletter, but we are not aware of any doctors being summonsed under S.2 of the Act. There has, however, been a consequence of our report. In October 1981 the Chief Medical Officer of the Welsh Office sent a letter to all consultant obstetricians and gynaecologists and Area Medical Officers in Wales drawing their attention to the statutory obligation to notify abortions within seven days. In that letter the Chief Medical Officer stated that he was aware that an "impressive number" of operating practitioners were not notifying abortions. It would be interesting to know whether he has reported his knowledge of these criminal offences to the Police, and if so why they have not decided to take any action.
In our last Newsletter (Number 12) we drew attention the fact that abortion is only lawful if it is performed on genuine medical grounds. Apparently doctors in Wales were either not aware of this, or were ignoring the law, because in his letter to them last October the Chief Medical Officer found it necessary to say :—
"For an abortion to be legal under the above grounds, there must be a medical condition present or anticipated, that puts at risk the patient's life or health. . . . Lest there be any misunderstanding I should point out that non-medical factors alone do not provide legal justification for termination of pregnancy."
This Association is interested to note that 14 years after the passing of the Abortion Act the Chief Medical Officer at the Welsh Office has felt obliged to write to doctors to tell them the grounds on which abortions may lawfully be performed. Presumably he considered this was necessary, because he had reason to believe that abortions were being performed on grounds not permitted by the Act. Once again, if he has this knowledge, has he reported it to the Police, and if so why have no prosecutions followed? Has the Secretary of State for Wales nothing to say about this?
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The D.P.P. and The Rule of Law
In our Summer 1981 Newsletter we drew attention to a resolution put at the Law Society's A.G.M. by 92 members of the Society calling upon the Director of Public Prosecutions, Sir Thomas Hetherington, to enforce the law relating to abortion.
In our Winter 1980 Newsletter we referred to a survey of abortion laws in the Commonwealth countries, which found them to be almost completely unenforced.
In this country it has become abundantly clear that it is the policy of the Director of Public Prosecutions not to enforce the law relating to abortion. What are the reasons behind this?
In an excellent article in the Solicitors' Journal of 7th August 1981 Mr. Francis Bennion dealt with various reasons why the D.P.P. may decide not to prosecute. After .giving examples of various situations where such a decision was clearly in the public interest he continued :—
"Less praiseworthy is a Government's wish to stifle an unpopular prosecution where votes are at stake. Policy requirements of a more legitimate kind concern the occurrence factor. Where a certain offence is on the increase, either nationally or in the locality, it may be desirable to prosecute instances of it which might otherwise be passed over."
It has no doubt not escaped the attention of the D.P.P. that more than a million women in this country who have .he vote have now had abortions, and would not view favourably a Government which enforced strictly the law against abortion when previous Governments had not done so. Furthermore, children who are unjustly and illegally aborted do not, and never will have the vote. On the other hand, abortion is certainly an offence which is on the increase both nationally and locally, and were it not for the political considerations there would be every good reason for prosecuting instances of it which might otherwise be passed over.
An article in the magazine Doctor of the 30th July 1981, after reporting on the Law Society resolution mentioned above, went on to say that their reporter had spoken to a representative of the D.P.P. about his policy. The reporter was told that there had only been 12 referrals of illegal abortions in the last three years, of which two were prosecuted. But neither of these involved doctors. Three cases involving doctors were dropped as it was felt that the evidence "would not substantiate criminal charges". That leaves seven cases out of twelve where a decision not to prosecute was taken presumably for other reasons. In none of the cases where a doctor was involved did the D.P.P. decide to prosecute.
On the llth May 1981 an interview with the D.P.P. appeared in The Times. In that interview Sir Thomas Hetherington explained how he decided, in cases where a prosecution was likely to be successful, whether or not to prosecute. He explained that:—
"One can't ignore the fact that public opinion has moved substantially over the last decade as to what it regards as something that ought to be punished by prosecution."
He then explained that he did not think that public opinion really required a prosecution for homosexuality or bigamy in many cases. Although he did not mention abortion, it may reasonably be inferred from the absence of prosecutions for this offence that he puts it in the same category as homosexuality and bigamy.
It would appear, therefore, that over a whole range of offences we are now governed not by the Rule of Law, but by the rule of public opinion. Nor is this public opinion as expressed by a referendum, or by our elected representatives. It is public opinion as assessed subjectively by one man, or possibly by two if one takes into account the fact that the D.P.P. can be overruled by the Attorney General.
If the law were changed, for example by making private abortions illegal, as they are in Canada, what effect would this have? Would the D.P.P. regard it as an indication that public opinion had changed? If not, presumably he would consider it his duty not to enforce the law. There is ample evidence that a law which is not enforced is a law which is not observed, and there can be little doubt that a change in the law of this nature would have very little effect if it became his policy not to enforce it.
M.P.s presumably believe that laws which they pass reflect the wishes of the electorate. It would appear that the D.P.P. can and does use the power of his office to set at naught the wishes of the electorate as expressed in the laws passed by their representatives. There can be little doubt that those who wish to see the law relating to abortion made more restrictive, or even to be enforced as it stands, have three options. They can persuade their M.P.s to limit the power of the D.P.P. to thwart the intentions of Parliament; they can persuade the D.P.P. that public opinion wishes abortion law to be enforced; or they can persuade the Government to replace the D.P.P. with a man who thinks that in general the law should be enforced where it is likely that a conviction would result, regardless of public opinion.
A Government is elected by the public, and "public opinion" can be merely a euphemism for "what is politically expedient". Ultimately it is up to us as members of the public and the legal profession to make our views about this matter known as strongly and as often as possible. We must make clear that through the policy of the D.P.P. this Government is condoning and approving criminal violence on a massive scale. By contrasting their approval for the criminal violence of illegal abortion with their condemnation of the criminal violence occurring in riots, we can expose the full hypocrisy of their position in this matter. We can also make clear our concern about this through the press and through our own institutions such as the Law Society.
There may also be other ways in which the problem can be tackled. In R.-v-Metropolitan Police Commissioner ex parte Blackburn ([1968] 1 All E.R. 763) it was held that the court would interfere in respect of a policy decision by the Metropolitan Police Commissioner amounting to a failure of duty to enforce the law of the land. Some of the remarks of the learned Judges in that case, although directed to the evil of gaming clubs, might well have been said of abortion. For example Edmund Davies L.J. (as he then was) said :—
"It would be difficult to exaggerate the importance of these proceedings. If there are grounds for suspecting that a grave social evil is being allowed to flourish unchecked because of a set policy of inaction decided on by a pusillanimous Police Force, public confidence must inevitably be gravely undermined."
Lord Denning concluded his judgment with some splendid words which could be aptly amended to apply to the present abortion situation :—
"This case has shown a deplorable state of affairs. The law has not been enforced as it should be. The lawyers themselves are at least partly responsible. The niceties of drafting and the refinements of interpretation have led to uncertainties in the law itself. This has discouraged the police from keeping observation and taking action; but it does not, I think, exempt them also from their share of the responsibility. The proprietors of gaming houses have taken advantage of the situation. By one device after another they have kept ahead of the law. As soon as one device has been held unlawful, they have started another; but the day of reckoning is at hand. No longer will we tolerate these devices. The law must be sensibly interpreted so as to give effect to the intentions of Parliament; and the police must see that it is enforced. The rule of law must prevail."
There is no doubt that if the law against abortion was enforced most unborn children who die before birth would survive. They only die today because doctors behave, and are tacitly allowed by the prosecuting authorities to behave, as if they were above the law.
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The Summing-up in R.-v.-Arthur
The aims of this Association are explicitly confined to the defence of the child before birth. Nevertheless, the position of the newly-born child, both in law and in fact, is of great importance and relevance to the struggle to protect the unborn child. This is because if the law permits the killing of born children, then quite clearly the position of the unborn is endangered. Furthermore, as long as the law fully protects the child immediately after birth, the illogicality of permitting the killing of that same child immediately before birth is manifestly apparent. At the time when the last Newsletter went to print the summing-up of Mr. Justice Farquharson in R.-v.-Arthur, was not available to us. We have since obtained this, and studied it carefully.
Homicide by omission
There are two particular points in the summing-up from which one must conclude either that there is a loophole in the law, or the judge is not stating it correctly. The first point is when the judge spoke as follows to the jury at page 19 :—
"Was what Dr. Arthur did in setting out that course of management, prescribing that drug, in the way of a holding operation, in the nature of setting conditions where the child could if it happened, if it contracted pneumonia, die peacefully? Or if it revealed any other organic defect die peacefully? .... If what Dr. Arthur here prescribed and arranged comes into that category of a management that represents a holding operation, but not in the nature of a positive act, why then he would not be guilty."
It is clear from this that by "a holding operation" the judge means that if the child develops an illness no attempt will be made to treat the illness, but only to ensure that the child dies peacefully. In fact the course of management in this particular case also involved not feeding the child, so that he would have died in due course even if he had not developed an illness. The judge clearly states that if this course of management of the patient was not in the nature of a positive act. Dr. Arthur was not guilty.
It is settled law that there can be no liability for homicide by omission in the absence of a duty to act. On the other hand, a person in loco parentis, or a person having custody of a helpless person, is normally under such a duty, and breach of such duty with intent to cause death may be homicide if death results. The only way in which the judge's direction, that the doctor would not be guilty if he brought about death by means of a holding operation as defined above, can be reconciled with this settled principle of law is if in the opinion of the judge the doctor was in this case under no positive duty to preserve life.
The handicapped and the law
Can we conclude from anything the judge said that he did in fact take this view of the doctor's duty of care in this case? One has only to look at the paragraph which immediately preceded the one quoted to get a strong hint that the judge did in fact take this view, and that the basis of his view was that the patient was in a special category of patients towards whom doctors owe a lower duty of care. He said :—
"The example also given by Mr. Carman that where a child gets pneumonia and, as in this case, no treatment is given it in the way of antibiotics. Dealing, as we still are, with children with irreversible handicaps who their mothers have rejected, if the doctor said: 'I am not going to give it antibiotics', and by a merciful dispensation of providence he dies, once again it would be very unlikely, I would suggest, that you (or any other jury) would say that the doctor was committing murder."
The introduction of the words "children with irreversible handicaps who their mothers have rejected" into this direction only makes sense if the judge is indicating that children of this kind are in a special category.
This is a remarkable conclusion, but the use of the word "it" to describe the victim in both the paragraphs we have already quoted is a strong indication that this is the conclusion which the judge was inviting the jury to reach. If there is any likelihood that this will in future be treated by doctors and lawyers as being a correct statement of the law, then quite clearly there is an urgent need for legislation to close the loophole or clarify the law as the case may be.
The medical profession and the law
The second point in the summing-up which forces one to conclude either that there is a loophole in the law, or the judge mis-stated the law, occurs at page 82. At that point in his summing-up the judge was concluding a lengthy summary of evidence (pages 52 to 86) given by various eminent doctors. This purported to show that doctors do regularly make decisions not to feed or treat patients in their care who are physically or mentally handicapped, provided always that their parents do not want them. The judge's comment on this evidence was as follows :—
"But I imagine that you will think long and hard before deciding that doctors of the eminence we have heard in representing to you what medical ethics are and apparently have been over a period of time, you would think long and hard before concluding that they in that great profession have evolved standards which amount to committing crime."
Two questions arise from this statement. First, does it indicate a loophole in the law? Can doctors, by adopting a certain practice as the norm, decriminalise it? If in certain situations doctors regularly decide not to treat patients, or worse still to treat them only with overdoses of sedatives, does this create a presumption that such treatment cannot amount to murder? That seems to be what the judge is implying. If so, there is clearly a danger that doctors can extend the categories of patients not to be treated, and we have here a loophole in the law which must be blocked by legislation.
The other disturbing implication to arise from the judge's words is that the reason why such a presumption arises is that the practice in question has been evolved by doctors. The Abortion Act 1967 created a precedent for the principle that certain acts which would be a crime if committed by anyone else are not a crime if committed by doctors. Despite what he says elsewhere (page 16) about there being no special law for doctors, the judge is clearly saying here that the status of the accused is relevant to the question of whether or not there was an intention to commit a crime. Because doctors are "a great profession" there is a presumption that acts done by them are not criminal. The implication of these words must be of grave concern to any lawyer.
The Attorney General may decide that this summing-up represents such a grave mis-statement of the law that he will refer it to the Court of Appeal under S.36 of the Criminal Justice Act 1972. The Court of Appeal may then clear up the matter satisfactorily. But what if this does not happen? There is a grave danger that in future doctors will in fact act as if the summing-up in this case correctly stated the law, and no further cases will be brought on similar facts, because the authorities will assume that the outcome would be an acquittal. If this is the situation, and in fact the summing-up seriously misrepresents the law, or discloses gaping loopholes in the law, then the only solution can be by clarifying legislation. Whether such legislation would be successful in the present climate of public opinion is a matter which must be open to debate, but there seems to be little doubt that it is urgently needed following this case.
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.
