The Association of Lawyers for the Defence of the Unborn
 |
| Newsletter 12 Winter 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
Winter 1981
Number 12
News and Comment
A Report on the Association's Finances
By Miss Gabrielle Hanley, Barrister, Treasurer of the Association.
Members will recall that with the last (Autumn 1981) newsletter I sent out a letter inviting contributions to the Association's work, and enclosed a pre-paid envelope in which a donation could be sent. I thought that it might be interesting for members to know the result of my invitation, and also to have some information about our finances and the way they are managed.
First of all, however, I would like to thank everyone who has responded to my appeal. At the time of writing a month has elapsed since my letter was sent to you, and already your donations have totalled well over £1,000. Contributions have come in from all over the United Kingdom, and many of you have been good enough to add a letter or note congratulating the Association on its work, and reaffirming your support for it. I have acknowledged those letters that needed an acknowledgment, but to all who have contributed I give my warmest thanks on behalf of the chairman and the committee for helping the Association so generously.
One thousand pounds in a month is, of course, a splendid amount. However, the Association's funds have to go a long way, because the activities in which we are primarily engaged to fulfil our four aims, printing the newsletter, advertising in professional journals, etc., are costly, although of course I do all I can, with the help of the committee, to ensure that our money is spent wisely and well, and that no unnecessary expenditure is incurred.
Each advertisement placed in the Guardian Gazette costs £650, and in Law Notes £120. Each printing of our newsletter, which is issued quarterly and which I know many of you find invaluable, costs over £300. And then it has to be posted to each member, and there are nearly 1,000 of is now, so even at second-class postage rate the costs mount up.
Last year the Association spent £3,176.50 on advertising, and the printing and postage of the newsletter cost £2,823.63. The total expenditure for the year, when the expenses of the various conferences and other activities are added on to the figures I have already referred to, was £6,983.23. As against that, the income obtained from members' donations, sales of our literature and collections at conferences, was £6,166.65.
I have reported these figures to you as members of the Association, first of all because you are entitled to know them, having entrusted your donations to the care of the committee, but also because I think that the sums involved in, for example, advertising, may come as a surprise to some of you. Let me conclude by reiterating my thanks to those who have contributed to the Association in 1981; by encouraging those of you who have not yet slipped a cheque into the pre-paid envelope to do so as soon as may be convenient; and finally by reassuring you all that my appeal for funds occurs once a year only!
********
The Aims of the Association
On joining this Association nobody is asked to pay a subscription, but everyone must sign a statement saying that they support the aims of the Association. But when it comes down to supporting those aims in practical terms, some members may feel difficulty in visualising precisely what can be done. It may therefore be worth setting out briefly how the committee of the Association actually goes about implementing our aims, so that members can support and directly participate in this work.
The First Aim
The first of our four aims is to oppose forthrightly the erosion of human rights and natural justice which abortion represents. The main method used to do this is by the publication of this newsletter, which goes to many lawyers throughout the country apart from the members of this Association. One way in which members can support this aim is by sending on your newsletter to your M.P. when you have read it. Most newsletters contain articles which ought to be of interest to Members of Parliament.
Another way in which we promote this aim is by undertaking speaking engagements arguing the case against abortion. We hope that all of our members will try to obtain speaking engagements with local organisations and associations, both within and outside the profession. Most members of the committee undertake many speaking engagements every year, and are always willing to come and speak to local groups. If you would like to have a member of the committee come to speak to any local organisation in your area, please let our Secretary know.
The Second Aim
Our second aim is to help all members of the profession to appreciate why no lawyer can in good conscience support abortion. One means used to achieve this has been special conferences of lawyers organised by local members. We urge all our members to try to organise a conference in their local town, and to invite their professional colleagues along. If you want speakers, please do not hesitate to contact our Secretary for advice and help. Another method used to achieve this has been the advertisements which set out the position of the unborn child in legal terms and which we continue to insert regularly in the legal press. The majority of our members have in fact joined us through reading such advertisements, so that it is evident that they are very widely read, and must be having a steady impact on our profession.
Another method used to promote this aim is the distribution to members of the profession of our pamphlet "Justice for the Unborn Child". Once again we urge all our members (continued on hack page) to write to all professional colleagues whom they know personally, sending them this leaflet. In some towns groups of members have got together and written a joint letter to all members of the profession in those towns, and this has had a very considerable impact where it has been done.
The Third Aim
Our third aim is to oppose any further erosion in the protection which the criminal law still affords to the unborn child. The steps which we have taken in this direction were fully set out in our newsletter No. 10. All that needs to be added here is that our correspondence with the prosecuting authorities and those whose duty it is to enforce the law, and apply it, continues unabated.
The Fourth Aim
Our final aim is to create a climate of opinion in our profession which will support full statutory protection against abortion for all human life. The committee of the Association has been actively involved at all levels in promoting and drafting pro-life legislation, and this topic is constantly under consideration by the committee. Although the opportunities for promoting such legislation are limited, it is the view of the committee that pro-life Bills should be brought in whenever there are reasonable chances of their success.
Obviously, the only way in which we can ultimately give full protection to the unborn child is by legislation. It will not be sufficient to repeal the Abortion Act 1967. The situation in Northern Ireland, where the Act does not apply, makes this abundantly clear. Positive statutory protection is urgently needed, but the only way it can be achieved is by convincing our M.P.s of the right of the unborn child to have the same protection as any other human being. We do urge all our members to make every effort to convince their own M.P.s about this.
********
Direct Action within the Law
By Mr. David Poole, Barrister.
This Association's view is that respect for the Rule of Law is of the first importance in the defence of the unborn. Those who contemplate direct action are urged to bear this in mind, and the skeletal note below has been designed to assist them and, perhaps, their advisers. It does not pretend to foresee every problem that might arise, and in cases of doubt detailed or specific advice should be sought.
The note has been written in the light of the writer's view that the act of picketing is not in itself unlawful. This is not the universal view (see e.g. Solicitors' Journal 16/2/79), but powerful support for it was expressed by Lord Denning M.R. in Hubbard-v.-Pitt ([1975] 3 AER 1). Here he stated inter alia that picketing is "lawful so long as it is done merely to obtain or communicate information or peacefully to persuade, and is not such as to submit any other person to any kind of constraint or restrictions of his personal freedom."
What is meant by direct action? For the purpose of this note I take it to mean picketing outside and entry into premises where abortions are carried out or counselled.
Civil remedies — Civil remedies available against those engaged in direct action include the following :—
(a) Actions in trespass or in nuisance for damages or for an injunction.
(b) Actions for defamation. The wording of placards, for example, should be carefully considered.
(c) An action for inducing breach of contract may be risked by those who counsel either mother or nurse, seeking to dissuade them from participation in an abortion, though in the opinion of the writer the courts would probably hold that both were free to withdraw at any time, on the grounds of conscience.
Criminal sanctions — The range of criminal offences to be avoided is wide and includes some of the following :—
(a) Assault.
(b) Breach of the peace, either at common law or under S.5 of the Public Order Act. A police officer may ask a picket to move along if he has reasonable grounds for thinking that the picket's attendance may cause a breach of the peace, whether or not the breach is likely to be committed by the picket or some other person; and if a picket refuses to move he may be arrested for obstructing a police officer in the execution of his duties.
(c) Criminal damage.
(d) Trespass: Applicable only to residential premises (Criminal Law Act 1977).
(e) Statutory Conspiracy: (S.I Criminal Law Act 1977): the agreement must be to pursue conduct that itself amounts to or involves an offence.
(f) Common Law Conspiracy: e.g. an agreement to trespass, however peacefully.
(g) S. 21 of the Town Police Clauses Act 1867. All local authorities may make orders (and nearly all have), preventing the obstruction of the streets.
********
Abortion on Demand — Is it Legal?
It has frequently been suggested that a doctor may terminate a pregnancy in the first three months virtually on demand without committing a criminal offence. This argument is based on statistics which are claimed to show that abortions in the first three months of pregnancy have a mortality rate lower than the maternal mortality rate. "As a result of this", so the argument runs, "the balance of risk always favours termination of pregnancy, provided the termination can be carried out in the first three months. Since the Abortion Act protects a doctor performing an abortion if the balance of risk favours termination, a doctor performing an abortion in the first three months is always protected".
Some of the fallacies in the above argument were explored in the article "Abortion on Demand — Is it Legal?" by our chairman and secretary, a reprint of which is available from this Association. The basic flaw in the argument, however, lies in the words "maternal mortality rate". The underlying assumption behind the reference to this is that death strikes at pregnant women completely at random, and irrespective of their personal circumstances. For this reason a doctor considering a woman for abortion supposedly need not look at her personal circumstances in order to determine how great is the risk of her dying as a consequence of her pregnancy, but only at statistics.
The law expects a doctor to recommend treatment on the basis of diagnosis in the usual way. That is why it requires the opinion of a second doctor in every case. Were it possible to make decisions on the basis of statistics alone, there would be no need to involve doctors in these decisions at all. Diagnosis may reveal complications creating a risk to life or health. If so, each doctor must balance that risk against the risk to life or health created by abortion. If they conclude that abortion will (not may) be safer, their recommendations will protect the abortionist from criminal proceedings.
In order to illustrate this point, it may be of help to consider the sort of dialogue which might take place if a doctor who had recommended an abortion on demand were being cross-examined by prosecuting counsel. It is possible that the dialogue could go something like this :—
Doctor: I believe that early abortion is always safer than pregnancy, so naturally I terminated the pregnancy.
Counsel: Did you examine the patient?
Doctor: There was no need to, except to check that she was pregnant.
Counsel: So you did not discover any complications which could present a risk to health, or even death?
Doctor: Naturally not.
Counsel: Do you accept that if there are no complications which could cause damage to health or death, a pregnancy will continue normally?
Doctor: There is no such thing as a normal pregnancy.
Counsel: So you accept that each case must be decided on its merits?
Doctor: Well, in the case of a woman aged 40 I would assume ........................
Counsel: Are you saying that in the case of a woman aged 40 complications would almost invariably arise?
Doctor: Exactly.
Counsel: And if these complications should arise they would cause damage to health or death?
Doctor: Yes.
Counsel: But if they did not arise in a particular case the woman would continue in her normal health?
Doctor: There is no such thing ........................ Well,I suppose so.
Counsel: And were there complications in the case of this particular woman?
Doctor: I told you, I did not examine her.
Counsel: Do you accept that abortion can cause death or damage to health?
Doctor: Well, an early abortion is an extremely safe procedure.
Counsel: So an early abortion has never caused death or damage to health?
Doctor: Early is a very vague word. I am not saying that. Naturally every medical procedure carries some risk. But you have got to weigh that against the state of your patient's health.
Counsel: And what was the state of your patient's health?
Doctor: I told you, I did not examine her.
Counsel: So in this case you were unable to weigh the risk?
Doctor: I did not have to.
Counsel: But are you aware that if you fail to do so the abortion will be illegal?
Doctor: I formed the necessary opinion that it was desirable. That is all the law requires me to do.
Counsel: So although every medical procedure carries some risk, you consider you do not need to weigh that risk against the state of your patient's health before recommending treatment, and that in performing the subsequent abortion you acted within the law?
Doctor: Yes.
And what do you think?
********
The Trial of Leonard Arthur — A Post-mortem
John Finch, Senior Lecturer and Sub-Dean at the Faculty of Law, Leicester University, was present during the Arthur trial at Leicester Crown Court. In this article he comments on the conduct of the trial and assesses the future implications of the decision.
To the dispassionate observer, in whose company I place myself, the trial for murder (later attempted murder) of Doctor Leonard Arthur was a divertissement of a remarkable kind. The adversarial system adopted by English Law for criminal trials is not given to any particular propensity for actually deciding anything of lasting value at first instance level, and the Arthur trial was no exception.
Mischievous thoughts frequently crossed my mind about the often remarkable similarity to pantomime or to the delights of a Punch-and-Judy show. "Oh yes he did", shouts the prosecution. "Oh no he didn't", responds the defence with equal vigour. And the spellbound audience sit there on the floor, holding on for dear life so as not to fall off. Just like the public gallery. The main trouble about Punch-and-Judy shows is that the baby usually gets it.
The Press have had a field day over the Arthur trial. Sitting there in the tea-room on the first floor they chatted and compared notes, while George Carman Q.C. for the defence exhorted their absent personages not to report that Prosecution Counsel had pretty well made out that the expert witnesses were criminal too. The remark was not in fact reported. The pressmen presumably had not heard the original comment either.
The quality of what has been said by way of post-mortem has varied even more than the pathologist's evidence. We have had the benefit of reading the full spectrum from the scientific and humane to the misinformed and ridiculous.
The end of the trial was a relief. So much so that two women are reported as having burst into tears and cried "Thank God". It is interesting to reflect that the same cry would have risen up from the other team in the event of a contrary result. In truth, the reports were a little overdone. The "cry" was more like the grunt of delight emitted by that nice lady on the television when she finds that deep-down collar stains on Jack's shirt wash right out without even boiling.
There are many who, since the jury's acquittal of the accused, have sought to show that English Law now countenances the taking of an unfettered decision in private about the future, or otherwise, of a human life. The talk about "delicate decisions in private" by doctor and patient has the sort of overlay of sentimentality which kept Dr. Kildare in the ratings for longer than any other person in history (I do not actually recall the series including a decision to kill a defective baby, though my memory may be at fault).
In legal terms the Arthur case decided precisely nothing, save that one man was held not guilty of the murder or attempted murder of one child. It did not prove that doctors are affected by the subtle and clear rules of the English criminal law in any way differently from anyone else. The case did nothing to alter the settled law that mercy killing is no defence in this country. Nor did it establish any exception to the clear and long-standing rule that a deliberate act causing or accelerating the death of another living human being is murder. All the talk of a "grey area" refers not to the law, which is clear, but to medical and specifically paediatric practice which differs widely. If there is a "grey area" it exists in the minds of those who have for a variety of reasons not taken the trouble to find out what the law is.
Are the doctors in a special position in law? Of course they aren't. But it seems to have become necessary to state this in plain legal terms, because of a widespread belief to the contrary. One of the most disturbing aspects of the Arthur saga is the apparent preparedness of a major section of the public to be swayed by a popular morality based on factoid foundations. (A factoid is the eugenic creation of a belief in a factual existence based more or less solely on repetition. It is similar in this respect to the eugenic creation of a humanoid by similar selective means.)
What is interesting, as well as disturbing, is the widespread indignation of the pro-Arthur lobby (those who did not seek to ascertain why he was on trial, as well as those who did) over the terrible and unacceptable pursuits of Nicholas Reed, Secretary of Exit. At least the other dramatis personae wanted to be a part of the show, and suicide, and therefore its attempt, is not a crime in English law. "Mercy-killing", homicide by any other name, is.
The part of the judge's summing-up in the Arthur trial which touched on what the law says about it all was extremely conservative. It was an unadventurous restatement of legal rules and principles which have represented the law of this country for a very long time. There was most certainly no attempt whatever at the creation of any separate and protected categories of action.
The jury's verdict reflected their view of the accused's intentions with regard to the properties and probable effects of D.F.I 18 (Duncan Flockhart Limited will be pleased at the flood of free publicity caused by the trial as the creators of the biological washing miracle will be at a view of this article).
Above all the case decided nothing about manslaughter by neglect. Public comment to the contrary is understandable, since they have had much less exposure to the precepts of the Criminal Law than that enjoyed by the most confused law student. Indeed the judge went out of his way to restrict his directions to the law on "attempted" murder. The manslaughter point was not directly an issue in the case. That was because the prosecuting authorities considered from the outset that the facts, if proved, would have led to something much more than an accusation of neglect.
Whether juries in future will hold anyone (doctor or not) who lets a child "fade away" (navy-blue and throwing its increasingly impotent arms in the air which it can no longer breathe) is a question. With the rise of the motor car as a demonstrably lethal projectile, juries came to say "there, but for the grace of God, go I". There was an unwillingness on the part of juries to convict for motor manslaughter. One wonders whether T.V. image-makers have had the effect of juries making a similar, if vicarious, identification-of-self with the medical profession. They might reflect on this when they next are in their G.P's. waiting room.
********
Justice and Mercy
By Mr. Michael Bell, Solicitor, Chairman of the Association.
Although this Association has always based its advocacy of the rights of the unborn child on the principles of justice, it is important that we should never allow the impression to be given that we are blind to the dictates of mercy. Some people inside and outside the Association may have the impression that our stand is one sided in this respect, and it may be appropriate to take this opportunity to correct this.
Justice without mercy is the hallmark of the self-righteous, who are unaware of their own failings, and of their own need for mercy. It is no part of the purpose of this Association to foster this attitude.
One of the biggest problems which faces all those who are concerned in restoring full statutory protection to the unborn child is the depth of feeling about this issue among women who have had abortions, of whom there are more than a million in this country alone. Although many of them doubtless have deep regrets about their involvement in the death of their child, nevertheless they naturally find it very difficult to support any move to give full statutory protection to unborn children.
Apart from women having a second or subsequent abortion, every day another 300 women join the ranks of those who cannot acknowledge abortion to be wrong without accepting and facing their own responsibility in the matter. In addition, there are all those whose friends have had abortions, parents who have encouraged their children to have abortions, and those who think that they themselves may some day need an abortion. Many of these have deep feelings of guilt, which compel them to argue forcibly that abortion is often justified.
Women who have had abortions are usually aware that what they have lost is a baby, but this awareness may be buried very deep. This is an instinctive reaction, in the sense of a natural defence mechanism. It happens because they have no hope that the situation can be remedied; or that it need not happen again; or that forgiveness and reconciliation are possible. Apart from guilt, there is grief, another problem which some women might find overwhelming if they allow themselves to become fully conscious of their loss.
This problem has to be tackled in a helpful and creative way, and solved, if the life of the unborn child is to be made safe in our time. It will not be solved simply by denunciation, or condemnation, or criticism by those who have never been tempted to have an abortion, or who in the nature of things cannot have one. On the contrary, what is needed is understanding and help, given freely and genuinely, not in a patronising or censorious way, but as one human being to another.
We cannot begin to do this until we have acknowledged that it is our society, of which we are a part, which has created this problem. It is a society which is at the same time both permissive and uncaring, which creates the problem of the unwanted pregnancy.
Some of us may have tolerated the growth of evil in our midst, because to fight this effectively would have demanded too great a sacrifice from us. Alternatively, we may not have cared enough to find out what was happening and do something about it. Consider the Abortion Act itself. Only one-third of our Members of Parliament bothered to vote at all, either for or against the Act; and very few of us cared enough to be in touch with them and to make our views known to them. Most of us, therefore, must share in some degree responsibility for what has happened.
As well as understanding, we need compassion, in the sense of suffering with those who suffer. It is all too easy to see the unborn baby as a victim, and not to recognise that the mother too has been victimised — by doctors, parents and friends, who have advised her badly or have pushed her into her situation. She is the victim too of our society, which still condemns unmarried mothers and stigmatises illegitimate children; a society which values material possessions more than human happiness (or perhaps equates the two), and yet refuses adequate housing and care to those who often need it most, even if their claims are not the most strident.
Only if we care about all human beings can we justify our claim to care for the unborn child, because our only justification for defending the unborn child is that he is fully human. If we do care enough to want to bring about that reconciliation between parents and child which is the only true answer to the abortion mentality, what can we as lawyers do in practical terms?
There are several pro-life organisations in the U.K. which are concerned to help and advise pregnant women and women who have had abortions. Their addresses can usually be found in the Yellow Pages of the Telephone Directory under "Pregnancy". Members of this Association are urged to get in touch with these organisations. They are constantly looking for help from professional people, and there are many ways in which we can help them, both as individuals and in our professional capacity. New opportunities for positive action in this field are constantly opening up, and the scope of what can be done is virtually limitless. Abortion is a cry for help from mother and from child. We hope that all our members will open their hearts to hear and respond to this cry, for only so can we ever realistically hope that the ultimate aim of this Association will be achieved.
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.
