The Association of Lawyers for the Defence of the Unborn
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| Newsletter 15 Autumn 1982 |
40 BEDFORD STREET, LONDON, WC2E 9EN
Chairman M. N. M. BELL, M.A. (Cantab.).
Vice Chairmen R. M. HA1G, LL.B., and Miss Gabrielle HANLEY, LL.B.
Hon. Secretary C. R. FRADD, M.A., LL.B. (Cantab.),
Hon. Treasurer T. G. A. BOWLES, M.A. (Cantab.),
Autumn 1982
Number 15
News and Comment
Progress of the Association
The 1982 Annual General Meeting of the Association was held in London on 19th June. Our Chairman was re-elected for a further term of three years. He expressed the gratitude of the whole Association to the retiring Treasurer (Gabrielle Hanley) and the retiring Secretary (Tom Bowles) for their indefatigable work over the past four years. Mr. Christopher Fradd was elected as Secretary, and Mr. Tom Bowles was elected as Treasurer. It was agreed by the meeting that it would be desirable to have two Vice-Chairmen, and a motion to amend the Constitution to provide for this was passed unanimously by the meeting. Robin Haig was re-elected as Vice-Chairman with special responsibility for the North of England, and Miss Gabrielle Hanley was elected as Vice-Chairman with special responsibility for London and the South of England. In a short talk given by our Chairman following his election he pointed out that the case of R.-v. -Arthur had shown that it was not enough for us to convince people of the humanity of the unborn child. It was no longer considered self-evident in our society that all human beings had a right to life. Consequently it was necessary that we should all be able to show convincingly that this is a fundamental human right, without which no other right could subsist. Furthermore it was necessary that we should understand the reason why there was so much apathy towards, and outright opposition to, the protection of this right in our society. It arose from modern laissez-faire morality, which says that I should not interfere with anything anybody else does as long as it does not harm me or my interests. Few people saw any profit or advantage to themselves in restricting abortion, and indeed many people might have it at the back of their minds that the availability of abortion on demand might come in very handy one day, for them. Only when we understood that these hidden motivations lay behind the apparent lack of support for our cause could we begin effectively to answer them in our educational work.
Furthermore he emphasised that we could only call on others to put human rights before self-interest if we ourselves were prepared to do so. That meant giving generously of our time, talents and money in this cause. He urged all members to look more deeply at what sacrifices they were themselves prepared to make for the rights of the unborn child. He asked us to be willing to pay the price of putting right what was wrong. This was the only way in which we could make progress in achieving the aims of our Association.
Financial Support
We would like to express our thanks to all those members who have responded so generously to our recent appeal for funds. Much of our educational work within our profession has of necessity to be by way of paid advertisements, and this can only be continued if our members give us adequate financial support. Because incomes vary enormously in our profession, it has been our policy never to have a fixed subscription which might exclude anyone from membership. Nevertheless, our committee can only do its job if members who can afford to do so send us the necessary funds. In recent months we have had to restrict our advertising due to shortage of funds, and the response to our recent appeal will mean that we shall once again be able to expand our educational work, which, along with personal contact, is the most effective way to change the thinking of our profession.
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World Federation of Doctors Who Respect Human Life
In our last Newsletter we had occasion to criticise those members of the medical profession who have so far forgotten the purpose and duty of their profession as to become involved in abortion. In this issue we wish to honour those doctors who, in an age of crumbling principles, have stood firm in their respect for human life. With this in mind we have asked Dr. Peggy Norris, Secretary of the British section of the World Federation of Doctors who Respect Human Life, to write the following article for us.
It is also important that all members of this Association should be aware of the World Federation of Doctors, and that we should work closely with its members. There may be occasions on which our members would wish to contact a doctor who respects human life for the purpose of obtaining his or her expert evidence in legal proceedings. One way of finding such a doctor would be to write to Dr. Norris at 75 St. Mary's Road, Huyton, Liverpool.
The British Section of the World Federation of Doctors Who Respect Human Life was founded from the parent Federation in Holland in May 1974. With the advent of State medicine, followed by the liberal abortion legislation, medical ethics were endangered; doctors in Britain came under pressure, sometimes subtle, sometimes unconcealed, to implement policies of social control.
We foresaw that doctors would be expected to do likewise in Third World countries following the United Nations Population Conference held in Bucharest in August 1974. The policies would include every method of preventing births discovered through the World Health Organisation's research programme initiated in Geneva in 1973 (Pulse, 17 Jan. 1973). The World Federation submitted 70,000 signatures (including 3,000 from Britain) to Mr. Rockefeller — President of the U.N. Conference — dissenting from the principle of using medicine to control people. In Britain we reminded doctors that even when employed by the State their first duty is to those under their care. We need to remember also that funds for State salaries are provided by its citizens.
The 1967 Abortion Act is primarily a social policy of population control. It was first outlined by the Royal Medical Psychological Association (R.M.P.A.) in a Memorandum on Therapeutic Abortion, June 1966. David Steel quoted from this memorandum that "all social circumstances should be taken into account (Hansard, 1 Feb. '67). He omitted point (1), which advocated "General measures to regulate population growth to ensure that children are both wanted and planned" .... "by ensuring the maintenance of the population at a reasonable level and the requisite balance between young and old." The R.M.P.A. became the Royal College of Psychiatrists in 1971, and their "Memorandum on the Abortion Act in Practice" submitted to the Lane Committee refers to social policy:
"We have become increasingly aware that we live on an overcrowded island in which severe problems are arising through overpopulation .... the population is expanding so that greater demands are now made on those of working age to supply the demands of the dependent younger and older generations." .... "Abortion .... is currently necessary for the mental health of the nation, at least in the present transitional period before a completely safe and reliable contraceptive method is developed. A major aim of social policy should be to ensure that every child is wanted." (Brit. J. Psych. 1972, 120, 449-51).
Doctors and "over population"
By 1974 the rate and numbers of induced abortions had escalated; over 90% were on healthy women and approximately 50% of abortions on resident women were being performed in State hospitals. The 1967 Act did not make abortion a statutory obligation — and within the N.H.S. no extra payment was earned. But one professor asked students: "When I see a young unmarried girl pregnant do I have an obligation to the State in view of the overpopulation problem?" No-one replied.
This new ethic of killing contravenes the very raison d'etre of our profession. The Hippocratic tradition particularly mentioned abortion, and warned doctors not to discriminate against patients, either on grounds of size, deformity, race or status (slaves, servants, free men). The British Medical Association in their document War Crimes and Medicine also enjoins:
"The duty of curing, the greatest crime being co-operation in the destruction of life by murder, suicide and abortion."
This document was the forerunner of the modernised version of the Hippocratic ethic: the 1948 Declaration of Geneva. This states:
"I will maintain the utmost respect for human life from the moment of its conception; the health of my patient will be my first consideration."
The strict professional code of ethics is the patient's safeguard against the maverick doctor, and it ensures that our profession does not drift into value judgements and succumb to the mores of society. Our Federation knew that if doctors were killing human beings before birth because they were socially unacceptable then no patient would be safe. Reports of the sedation and non-feeding of newly born, malformed patients first appeared in the B.M.J. in December 1977 ("Living with Spina Bifida"). Pressure for Euthanasia will continue.
Our witness to the traditional ethic is extremely unpopular in some quarters but we are unrepentant.
We will continue to educate young doctors and students on the necessity to maintain the traditional ethic which had served medicine and patients so well for over 4,000 years. We will encourage the introduction of medical ethics into the curriculum and encourage medical schools to incorporate the Declaration of Geneva into the graduation ceremonies.
Dr. Peggy Norris M.B., B.Ch.
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The abortifacient pill
It was reported in the Daily Telegraph on the 6th May 1982 that the "post-coital" pill is now available at the Queen Elizabeth Medical Centre, Birmingham. This pill, which has been endorsed by the International Planned Parenthood Federation, is claimed to be effective in 99% of cases, if it is taken within three days after intercourse. It operates by preventing the "fertilised ovum" (that is, the new human life in being) from implanting in the womb. The new human life, which begins at the moment of conception with an amazing explosion of growth, is thus ended only a few days after it has begun.
An induced abortion is any act which destroys a human life between conception and birth. The reason why this is regarded in English Law as a serious criminal offence, except when carried out on certain specific grounds, is precisely because it involves the ending of a human life. Our law has always imposed severe penalties on those who deliberately take human life, and the Offences Against the Person Act 1861, which is still very much in force and is the general "governing" Statute, reflects this general principle.
When the post-coital pill was invented a few years ago, it was immediately apparent that since it took effect after conception it was in effect causing abortions. There was no way in which such abortions could obtain the protection of the Abortion Act 1967. This was firstly because s.I of that Act makes it quite clear that its protection only arises when it is certain that a pregnancy has existed and is terminated; and secondly because it was impossible in the circumstances for two doctors to form the necessary opinion required by the Act. The people who wanted to supply the "morning-after" pill therefore began to look around for some way in which to persuade the prosecuting authorities that it was lawful to do so. The solution they came up with was to re-define the word "pregnancy". Learned men were found who were willing to say that pregnancy only begins when the fertilised ovum becomes implanted in the womb some 6-8 days after conception. One lawyer even wrote to this Association on the 7th June 1982 saying that this argument could be justified on three grounds, namely — linguistic, philosophical and practical/ expedient.
It is a sad day for our profession when well-known lawyers seek to justify the killing of innocent human beings on the grounds that it is practical/expedient. Indeed the consequences to our society of undermining and doing away with the basic principle that every human being has a right to life, and that this is a fundamental human right, are so serious that this could never be justified on the grounds that it is practical or expedient. Nor is this an argument which any lawyer who is seriously concerned about justice could accept. The other two points, however, deserve closer examination.
The meaning of "miscarriage"
Can one justify linguistically an interpretation of the law which says that it is only unlawful to end a human life before birth if this takes place after implantation? The law against abortion is contained in the Offences Against the Person Act 1861 at section 58. This uses the phrase "procure a miscarriage". Miscarriage means no more than the ending of "carriage", but the carriage of what? The only answer to that question can be: a new human life in being.
It has been shown scientifically, and every medical dictionary now in use supports this, that the growth of any human being can only be traced back to one starting point, and that is conception, i.e. fertilisation of the ovum. From that moment onwards there is a new human life in being. Furthermore this new human life in being is indisputably being "carried" by the mother. If the mother goes on holiday the new human being goes with her, because he or she is being carried by the mother. Abortion ends that carriage. A miscarriage has been procured. And that is what the law prohibits. No "linguistic" interpretation of the law can deny any of the above facts.
Finally, can one justify this strange new interpretation of the law "philosophically"? Let us look at the intention behind the law, to see if this interpretation of it can be justified by disregarding the literal words of the Act and looking at its intention. What mischief was s.58 of the 1861 Act designed to remedy? People have sometimes alleged that the only purpose of the law was to protect maternal health, in days when any induced abortion was gravely dangerous. But the fact is that in those days the great majority of operations were dangerous. The 1861 Act stipulates penal servitude for life as the punishment appropriate for an abortion, but not for any other operation which a doctor in his wisdom might consider desirable. If the only intention was to protect the mother, why was penal servitude for life not stipulated as the punishment for, say, an unlawful amputation? Even today the penalty for an unlawful abortion is the same as the penalty for murder, but nobody suggests that this is because of the similarity of the consequences so far as the mother is concerned.
It is thus clear that the mischief the law is designed to prevent is the taking of a human life, the killing of a fellow human being. This is why the penalty for this operation is still as severe today as the penalty for murder. There is no similar penalty for any other "treatment" which might be administered to a mother by an unqualified person. There is no way, therefore, in which you can justify the killing of the child in the first week of life by looking at the philosophy behind the law, or indeed any sane philosophy.
The pill that kills — always unlawful
It is clear, therefore, that every time the post-coital pill procures the miscarriage of a human life in being between conception and implantation, as a result of which that being passes out of the body of the mother and dies, it is procuring an unlawful abortion. Even if the pill when administered does not always procure an abortion, because the mother does not happen to be pregnant, it is nevertheless an attempt to procure an abortion. The penalties for an attempt are the same as the penalties for the substantive offence.
For this reason our Association has urged that the law be enforced according to its terms and intention in respect of the crime of supplying and administering a post-coital pill. We have done so by letters to the press, and by letters to M.P.s, and to the prosecuting authorities. We have corresponded with lawyers who have defended this practice. So far the response has been disappointing. One M.P. to whom we wrote made clear to us that even M.P.s who are against abortion cannot see that killing by a post-coital pill is as wrongful as any other killing of a human being. There is indeed a general feeling among M.P.s that the later a pregnancy is terminated the more serious the harm done to the child. This attitude, which is completely illogical, has surfaced every time an attempt to change the law has been made. It would be much more logical to say that the earlier in life that you kill someone the greater the wrong done to him, because you have taken away that much more of his life. Every human being from the time his or her life begins has a right that it should be allowed to run its natural course, and not be forcibly terminated.
The officers of this Association are doing what they can. We appeal to all our ordinary members to take up this matter with their M.P.s, and to ask them to press for prosecutions in respect of these unlawful abortions. The present Government, after all, has repeatedly claimed to uphold the Rule of Law.
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Abortion and Handicap
This Association was recently criticised by a certain Dr. David Delvin, writing in the magazine She. The way this came about was as follows. In our advertising in the legal press, we have constantly drawn attention to the fact that an abortion operation increases the risk of subsequent children being born handicapped. A reader of Abortion and Handicap, Dr DelvinShe drew Dr. Delvin's notice to this advertisement, because she had had an abortion, and was thinking of having another baby. She wanted to know if what we said was true. He assured her that he was not aware of any evidence that what we said was true, and that she had nothing to worry about.
Dr. Delvin is well known, and many people may have concluded from his statement that our Association is misleading people in our advertising. A letter setting out the evidence in support of our allegation was immediately sent to She, but this was not printed. In consequence, some members of this Association may have been embarrassed by being confronted by a statement by a well-known doctor, implying that we were not telling the truth.
It may therefore be both useful and interesting to members to know what are the facts behind our advertised statement. The statement does not refer to the fact that the damage done by abortion can cause the death of a subsequent child, although this fact is very well documented. All we are saying is that even if a subsequent child survives, the chances of that child being handicapped are increased if the mother has previously had an abortion.
Prematurity and Handicap
One reason for this is that an abortion increases the chance that a subsequent child will be born prematurely, after say six months of pregnancy, and a premature child has a much greater chance of being born handicapped than a child who is born at the end of a normal nine months pregnancy. What is the evidence in support of this statement? Let us look first at the evidence that abortion can cause the premature birth of the next child. Probably the best overall study of that evidence is contained in a publication called Some Consequences of Induced Abortion to Children Born Subsequently by Margaret and Arthur Wynn. This is obtainable from the Foundation for Education and Research in Child Bearing. The publication, which was produced in 1972 and supplemented in 1973, reviews all the evidence available at that time. It states that this evidence shows that abortion produces a 40% increase in premature births. Although this study was published nine years ago, articles in The Lancet on 20th January 1979 and Modern Medicine in March 1980 confirm that there is still today a significantly higher risk of premature delivery among women who have previously had an abortion.
Secondly, what is the evidence that a premature birth is a significant factor in relation to handicap? Obviously, the earlier a child is born the lower is his or her weight at birth, and the prematurity of a child is often described by reference to his birth weight. The Wynn Report refers to evidence that handicap rates rise from 1% among children of normal birth weight to 64% among children weighing 1,250 grams (less than 21bs.).
More recent reports substantiate this. Dr. Andrew Sheehan, a paediatrician at Women's College Hospital in Toronto, writing in the May 1982 edition of the Canadian magazine The Human states that twice as many premature babies have abnormalities as babies born after a pregnancy of normal length.
Some other consequences of abortion
Unfortunately, premature birth is not the only risk encountered by the baby of a mother who has had a previous abortion. The Wynn Report shows that an abortion can cause other complications in subsequent pregnancies, such as a faulty placenta. An article in the English magazine Mother and Baby for June 1982 states, "Placenta praevia often results in miscarriage, and is also associated with an increased risk of congenital malformation." The Wynn Report suggests that abortions cause complications in subsequent pregnancy in 3-10% of cases. These complications, it states, can cause palsy, epilepsy, blindness, autism, and many other handicaps.
Margaret and Arthur Wynn conclude that the number of abortions performed with the purpose of reducing the number of handicapped in the community is very small compared with the number of abortions which are liable to increase the prevalence of handicap. And of course, as already stated, an abortion means that there is a much higher risk that the next child following an abortion will not survive at all.
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Abortion—the rights of mothers and children
In the case of R.-v.-Smith ([1974] 1A.E.R.376 C.A.) Lord Justice Scarman (as he then was) made clear that for an abortion to be legal it was essential for the doctors to have weighed the evidence and come to an opinion in good faith that the balance of risk favoured termination. The case of Re P (A minor), which was reported in the Local Government Reports for April 1982, and in The Times on 14th May 1982, has shed further light on the question of when an abortion is legal, but has also raised some disquieting questions.
In this recent case, Mrs. Justice Butler-Sloss in the Family Division ruled that a fifteen-year-old London schoolgirl should be allowed to have an abortion against the wishes of her parents. It appears from the judgment that the doctors did indeed form an opinion in good faith, and took the view that the balance of risk favoured termination.
Abortion for a minor — who must consent?
The girl was in the care of the London Borough of Lewisham, as a result of a Care Order made under the Children and Young Persons Act 1969. There seems no doubt that the Local Authority considered that she should have an abortion, and they were in fact in a position to give consent, even without a Court Order. However, they decided to bring the matter before the Court, and the Judge appears to have supported the view of the Local Authority, who were "in loco parentis". The case cannot therefore be cited as an authority for the proposition that a girl under sixteen can lawfully be provided with an abortion without the consent of those responsible for her, even though her true parents were reportedly opposed to her having an abortion. The case is, however, in line with the general attitude of the Courts, who seem to be inclined to give increasing weight to the wishes of a child under 16 in situations where the child wishes to do something which is not unlawful, and the child is very near to the age where consent of the parents would not be required.
So far it would be difficult to criticise the decision of the Court on grounds of law, although it is evident that the Court ignored the implications of the fact that there were two children involved, one being in the womb. Since the younger child was unable to articulate his or her wishes and rights, one might have expected the Court to safeguard these with particular care, if necessary appointing a "guardian ad litem" to make sure that the younger child's case for living was adequately put to the Court. Nothing of this sort appears to have been considered.
A useful case for pro-life counsellors
The importance attached by the Court to the wishes of the girl should however, be noted by all those who provide counselling for girls under 16. Parental rights and powers of control are all too often misused in such cases to bring pressure on the girl to have an abortion. Counsellors can now point to this ruling, to show that at the age of fifteen, the Courts attach considerable importance to the wishes of the pregnant girl; and where a girl under sixteen is under pressure to have an abortion against her wishes proceedings to have her made a Ward of Court may well be helpful.
There is, however, another aspect of the judgment which must give rise to very grave concern. Mrs. Justice Butler-Sloss went on to rule that "a suitable internal contraceptive device shall be inserted, again with the approval and at the request of the mother." There seems to be an implication here that this device was to be inserted whether the girl wanted it or not, even though the Judge had already found that she was mature and intelligent enough to understand the implications of abortion.
Although the internal device referred to is described as a "contraceptive" device, the device intended was probably the intra-uterine device known as "the coil". H. P. Dunn F.R.C.S., F.R.C.O.G., writing in 1979 in Contraception — the Truth says of the coil that it is one of the abortifacients which kill the fertilised ovum by preventing implantation. This is also the view of Professor P. Eckstein of Birmingham, who, at a workshop organised at Cambridge in April 1975 by the International Planned Parenthood Federation, stated that "I.U.D.s interfere with implantation by an effect on the endometrium or the blastocyst or both". That simply means that they affect the child or his or her environment in such a way as to cause an abortion. Despite this, the I.P.P.F. continue to claim that the coil is a contraceptive, on the spurious grounds that pregnancy begins with implantation, an error which is dealt with elsewhere in this Newsletter.
If the coil does cause abortions, a very real probability to which Mrs. Justice Butler-Sloss does not appear to have applied her mind, can an abortion induced by the coil be a legal abortion within the terms of the Abortion Act 1967? Clearly it cannot. Each and every abortion so procured must be illegal, because two doctors have not formed an opinion about the pregnancy, as required by the Act. The criminal offence, for which the punishment is up to life imprisonment, would be committed by the doctor who inserted the coil.
Illegal abortion by Court order
It would appear, therefore, that the Judge, having considered in great detail whether the abortion which the girl wanted was legal or not, then went on to order an action which could have the effect of procuring future miscarriages, which would undoubtedly be illegal. It is submitted that it would be no defence for the doctor to show that a Judge had ordered this to be done, because nobody can lawfully order the commission of a criminal offence. Furthermore the interesting question arises of whether this Judge who ordered that the device should be inserted could be said to be a party to the offence. Shall we now see more cases of Judges ordering illegal abortions to be carried out, regardless of the wishes of the woman? Why has there been no protest about this from those who advocate "a woman's right to choose"? It appears to be taken for granted that a Judge has power to make orders of this kind, even though a coil may be seriously damaging to health in a number of different ways. For our part, however, we question the propriety as well as the legality of the order. We strongly suspect that the Court was acting "ultra vires".
On the credit side however the case has once again made absolutely clear that a woman does not have a right to abortion on demand. There is no doubt at all that the Judge took very seriously the question of the balance of risk to maternal health in considering whether the proposed abortion would be legal. This point is very significant, in view of the findings of recent surveys (see Newsletter Number 3) that more than 90% of abortions are performed on non-medical grounds, in effect "on demand" or "on request".
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 accordingly 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 was founded by eight lawyers in May 1978 and already has well over 1000 members.
