The Association of Lawyers for the Defence of the Unborn
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| Newsletter No 18 Summer 1983 |
Contents: Annual General Meeting; Progress of the Association; Abortion Amendment Bill; Abortion Advertising; Attempted Murder; Arguing the Pro-Life Case
The Association of Lawyers for the Defence of the Unborn
40 BEDFORD STREET, LONDON, WC2E 9EN
Chairman M. N. M. BELL, M.A. (Cantab.).
Vice Chairmen R. M. HAIG, 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.).
Summer 1983
Number 18
News and Comment
Annual General Meeting
To make it as easy as possible for members from all parts of the country to attend, the 1983 Annual General Meeting of the Association is being held in Birmingham. It will take place at the Midland Hotel, New Street, Birmingham on Saturday the 25th June at 2 p.m.
It is very much hoped that members will make every effort to attend. The Committee of the Association would very much like to meet the members, and they hope that the members would like to meet the Committee. Our Chairman, Mr. Michael Bell, will be addressing the meeting on matters of great importance to the Association.
For those members who are not familiar with Birmingham, the Hotel is about 100 yards from Birmingham New Street Station, and a few minutes' drive from the big Spaghetti Junction. Tea and biscuits will be provided at 4.30 p.m., and the meeting will end around 5 p.m. The Hotel has offered accommodation at a special rate for anyone wishing to spend the night there after attending the meeting.
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Progress of the Association
The Consumers' Association
Our Association has noted with considerable concern that the highly respected Consumers' Association has been putting out grossly misleading information about the abortifacient pill. On 21st November 1982 our Secretary wrote to them complaining about a misleading advertisement for abortion which appeared in the November issue of Which?. As a result of this complaint steps were taken to put the matter right. However, our Secretary also complained about the reference by them to "post-coital contraception". He said as follows :—
"The word 'contraception' means the prevention of conception. It cannot therefore possibly apply to a being already conceived. Accordingly the description 'post-coital contraception' cannot honestly be applied to a product — the 'morning after pill' in your advertisement — which even its advocates do not maintain prevents fertilisation, but only the implantation of the already conceived embryo in the wall of the womb."
We regret to report that the Consumers' Association refused outright to make any correction of their misleading statement, on the grounds that the term "post-coital contraception" was "an internationally recognised term". Whatever that last phrase may mean, it cannot, as our Secretary has pointed out to them, justify them in deliberately misleading their readers by using it. We would ask any of our members who take the magazine Which? to write and complain about this.
The Warnock Committee
On 23rd February 1983 a submission of evidence prepared by Mr. Gerard Wright Q.C., on behalf of our Association was submitted to the Government Enquiry into Human Fertilisation and Embryology set up by the Department of Health and Social Security under the chairmanship of Mrs. Mary Warnock.
Mr. Wright started from the basic fact that human life begins at conception, and proceeded to review the law protecting the conceptus since the time of Sir Edward Coke. He then expressed the support of this Association for legislation designed to make it unlawful to fertilise a human ovum externally, save for the sole purpose of implanting that ovum in a woman so as to enable her to bear a child.
He pointed out that this Association rejected with horror any suggestion that human lives should be brought into being for the purpose of research or experiment, including attempts to "clone" an in vitro conceptus. He expressed our support for legislation to prohibit this.
He further expressed our opposition to using in vitro fertilisation techniques for the purpose of producing organs or other material for transplantation purposes. He concluded by pointing out that our sole concern was the defence of the conceived human life, and he urged the committee to keep in the forefront of its deliberations the inestimable value of every human life, and accordingly to advise that the in vitro conceptus should be given the fullest possible legal protection.
Unfortunately the composition of the Warnock Committee does not create any confidence that it comes to these matters with an open mind. Its members seem to have been selected almost exclusively from people known to place a low value on the right to life of the unborn child. Nevertheless we hope that the evidence submitted by our Association will encourage them to reach the only conclusion which can be reached logically, namely, that the child in the test tube has as much right to life as the child in the womb, who has as much right to life as the child in the cradle. After all, it is the same child in each stage of development, and to make the right to life of a human being dependent on his or her age or state of development is irrational and fundamentally unjust, and is contrary to every principle of English Law.
Bristol Medico-Legal Society
On Thursday, 17th March, 1983 the Chairman of this Association addressed the Bristol Medico-Legal Society on the subject of "the Right to Life". Around one hundred members of the Society attended, and his Honour Judge Sir lan Lewis took the chair. Mr. Bell spoke for about half an hour, arguing that a humane society must recognise the right to life as a human right, and that a society which did so would protect that right with particular care in the first twelve months after conception, when potential victims were least able to defend themselves. Since the meeting their Medical Secretary has kindly written to us to say that it was a very stimulating and enjoyable evening, and we would like to express our gratitude to the Society for giving our Chairman the opportunity to speak to them on this important topic.
Irish A.L.D.U.
We are pleased to hear from the Irish A.L.D.U., our sister organisation in the Republic of Ireland, that their membership now represents 10% of all practising lawyers in the country. This is indeed a notable achievement, and we wish them every success in enrolling the remaining 90%. By comparison the membership of our own Association represents less than 4% of practising lawyers in the United Kingdom, and the achievement of our colleagues in the Republic of Ireland should encourage us all to make more efforts to enrol our friends and colleagues as members.
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Abortion Amendment Bill
On the 6th December 1982 there took place the debate on the Second Reading of the Abortion (Amendment) Bill introduced into the House of Lords by Lord Robertson of Oakridge. The Bill, which sought to limit termination of pregnancy to situations where the risk was both serious and substantial, was defeated by 57 votes to 42. Nevertheless, some of the speeches made in favour of the Bill were extremely well argued, and in particular the speech made by Lord Denning on that occasion will be of interest to members of this Association. Among other things his Lordship said as follows :
"Before I say more, I should like to say that I will support the Second Reading of the Bill and be against the amendment which seeks to postpone it, for these reasons. Really it is not only the Christian doctrine but it is the doctrine of our law and our common law that the unborn child has a life of its own and a right of its own which is recognised by the law at least from the time of quickening, and the common law has always recognised that. Our great jurist, Sir William Blackstone, put it in this way :
"Life is the immediate gift of God, a right inherent by nature in every individual, and it begins in contemplation at law as soon as the infant is able to stir in its mother's womb."Such a child was protected by the law almost to the same extent as a new-born baby. If anyone terminated the pregnancy and thus destroyed the life of the child he or she was guilty of a felony punishable by life imprisonment.
In 1939 in Bourne's case that was modified to this extent by the common law. It was a defence if the termination was necessary to save the life of the mother. If the probable consequence of not terminating was to make the mother a physical or mental wreck then it was justifiable, but that was the only circumstance in which in the common law it was justifiable to terminate the pregnancy. So the common law laid great stress on the existence in the unborn child of a life of its own and a right of its own.
Now for the 1967 Act. As I read it, it does not alter that fundamental principle, but what it does do is to define the circumstances in which pregnancy can be terminated. I would like to follow what my noble friend Lord Robinson of Oakridge said. It is not for the doctors alone to consider the balance of danger to the mother's health; it is for the law itself, following the old doctrine, to consider that there is yet another person concerned and that is the unborn child."
His Lordship went on to review the law as it stands today, and emphasised that the effect of it was that the unborn child was "left out of the equation". He supported the Bill on the grounds that it would
"bring the unborn child into the scales so that its interests are given a proper place in the vital decision that has to be made on its life."
It is indeed heartening to hear so eminent a Judge as Lord Denning making clear his concern about the way in which the rights of the unborn child are disregarded by the existing law. The narrow margin by which the Bill was defeated give grounds for hoping that it may be possible on a future occasion to bring in a further Bill in the House of Lords which will be successful, and encourages us in our determination never to give up the unremitting struggle to uphold and protect the rights of the child.
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Abortion Advertising
Members of this Association are consulted from time to time by members of the public about the question of the legality of abortion advertising.
Members who live in London will be familiar with the advertisements which appear on the London Underground. Those who live in other parts of the country may perhaps have seen similar advertisements in their local papers or on posters at railway stations and other places.
Generally these posters give the name of private abortion agencies, and state that these agencies offer "abortion advice". Since to provide an abortion is always a serious criminal offence, unless the abortion can be brought within the exceptions provided by the Abortion Act 1967, there would appear to be no doubt that an unqualified offer to provide abortions would be similar to the business formerly carried on by "Murder Inc." in New York, which reputedly would murder anybody for an appropriate fee.
The offer of "abortion advice" is more ambiguous. The abortion agencies make their profits by providing abortions, so that in reality these advertisements are no more than touting for business. Furthermore, it is well known that well over 90% of those who go for abortion advice are advised to have an abortion, rather than any other treatment which might be beneficial to them. In view of the fact that these organisations claim to be charitable bodies run by professional men, all this is highly distasteful, but is it illegal?
There are a number of different ways in which the matter may be regarded. For example, abetting suicide is still a criminal offence, even though suicide itself is not a criminal offence. Should not therefore abetting abortion be similarly criminal, — especially in instances where the advice to have an abortion is given in circumstances where the person giving such advice is not aware of any medical grounds for the abortion? Another way of looking at the matter is to say that the advertisements for "abortion advice" are clearly understood by the public to be advertisements by agencies which are known to provide abortions, and so the advertisements are in effect offering abortions. The offer of advice is a mere subterfuge which deceives nobody and is intended to deceive nobody. Members of this Association will no doubt readily perceive other possibilities. It may, however, be of interest to members to know how the Department of Health and Social Security regards this matter, and we therefore reproduce below a paragraph from a letter written on the llth October 1982 from the D.H.S.S., by a Ms. J. Crowhurst:—
"It might be helpful if I clarified the general principle held relating to abortion advertisements. The general principle is that BPAS and other organisations providing advice to women seeking abortion, and arranging abortions within the law, are entitled to publicise the service they provide. The Department exercises a general oversight of advertising by pregnancy advice bureaux registered by the Secretary of State to ensure that such advertisements are not misleading.
In particular we are concerned — and indeed share your concern — that advertisements should not be open to the interpretation that an abortion can be arranged automatically for any woman who approaches the bureau. We therefore expect that the word 'abortion' when it appears in an advertisement should always be qualified by such words as 'advice', 'help', 'guidance' or 'counselling'.
This reflects the pregnancy advisory bureaux role in the counselling of pregnant women, the aim of which is, through non-judgemental and non-directional counselling, to ensure that all relevant facts and advice, including those of the alternatives to abortion, after-care facilities and social help available, are available to the woman to allow her full opportunity to make a reasoned assessment of her wishes and circumstances. Similarly, references to referrals for abortion should always be qualified by a phrase such as 'after medical assessment' or 'subject to medical advice' to indicate that the terms of the Abortion Act must be met and that referrals for operation is [sic] not automatic."
Since the D.H.S.S. is well aware that nearly all women who seek "abortion advice" from such bureaux go on to have abortions, it is difficult to understand how they can possibly believe that the advice given is "non-directional". Since the D.H.S.S. claims carefully to supervise the activities of clinics it must be aware that the vast majority of women who seek and obtain abortions are in normal health, as is clearly apparent from the returns on which the clinics give the grounds for the abortion. If the D.H.S.S. knows full well that so-called "non-directional counselling" of normal women in normal health results in more than 90% of them having an abortion, it would appear that the D.H.S.S. believes that abortion is the best medical way of treating virtually every pregnancy.
Such a belief, of course, is patently absurd. The D.H.S.S. is well aware that in reality the bureaux do no more than provide a facade of legality for abortion on demand, and that unless there are very exceptional circumstances, any woman who contacts such a bureau will be referred for an abortion. Neither the bureau, nor the patient, nor, apparently, the D.H.S.S., is interested in whether there are genuine medical grounds for the abortion. The D.H.S.S. is as well aware as everybody else concerned that the health of pregnant women in this country could be perfectly adequately safeguarded without the performing of 300 abortions every day. It is years since any woman in this country died as a consequence of a normal pregnancy. The reality of the situation is that the pregnancy advisory advertisements are no more than touting for customers for abortion on demand, and it is high time that the D.H.S.S. was challenged to face the reality of the situation, and to fulfil its public duty properly.
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Attempted Murder
One of the problems for the prosecution in the case of R.-v.-Arthur (see Newsletters 12, 13 and 14) was to prove that the attempt had been completely constituted, since the defence argued that what Dr. Arthur had done was merely "a holding operation". Since Dr. Arthur's prescription of DF118 for baby John Pearson in that case, the Criminal Attempts Act 1981 has come into force, and this new Act seems certain to make a defence based on a "holding operation" very much less likely to succeed in any similar case of attempted murder in future. Section I (1) of that Act provides that "If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence"; and murder is one of the offences to which the section applies. It is interesting to speculate on what the outcome of the Arthur trial would have been had the Criminal Attempts Act 1981 been in force in June 1980.
It is worth pointing out in passing that the Criminal Attempts Act 1981 may also have made an interesting change in the law relating to abortion. Section I (2) of this 1981 Act provides that "A person may be guilty of attempting to commit an offence to which the section applies, even though the facts are such that the commission of the offence is impossible." This must surely mean that if a woman, acting on her own, administers drugs to herself with the intention of causing an abortion, she may now be guilty of an offence, even if she was not in fact pregnant. Hitherto this would not have been a crime on her part, as such a woman would have had to be pregnant for her action to be an offence under Section 58 of the Offences Against the Person Act 1861. Obviously the Abortion Act would not provide her with a defence, because that only provides a defence where two doctors have first formed a certain opinion in good faith, and where the pregnancy is thereupon terminated by a registered medical practitioner.
The signficance of this change in the law becomes apparent when one reads that new abortifacient pills may soon be available, whether on prescription or otherwise, from chemists and from Family Planning Clinics.
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Arguing the Pro-Life Case
By our Chairman, Mr. Michael Bell
In November 1981 Mr. Tom Bowles, who was then our secretary, and myself were invited to speak to students at the College of Law, Guildford. We presented a reasoned approach to the question of abortion, i.e. reasoning from established facts as to the nature of the unborn child to a logical conclusion that justice demanded that the law's protection should be extended to that child. But from the questions asked by students afterwards it was evident that this line of argument had been less than successful in convincing them.
Arguing from two different points of view
If we are to reach those of our professional colleagues who have already come to a firm conclusion that abortion is acceptable, it may well be that a very different approach should be adopted from that used in talking to people who have an open mind on this issue. The attitude of people who are strongly in favour of abortion often arises from their attitude to life as a whole, and only if we understand this can we begin to dislodge the foundations of their beliefs. Only if we can create a reasonable doubt in their minds about the solidity of those foundations can we begin to help them to reconsider the question.
The pro-life argument normally starts from one basic fact, which is that the child before birth is human. The pro-abortionists' argument starts from an entirely different point, which is that abortion is desirable in the interests of society and the individual. As a consequence of this they assume that every argument against it must be flawed. The abortionist, therefore, approaches the pro-life argument not as a judge but as a prosecutor determined to convict of error. Thus if one line of reasoning fails to achieve this, he does not regard this as any indication that abortion is wrong. To him abortion cannot be wrong, because an admission that it is wrong would conflict with his basic premise. He is not going to be defeated by a mountain, even when, as in this case, it is a mountain of fact.
The traditional arguments
This means that we need not spend a lot of time demonstrating the humanity of the unborn child. A moment's thought shows that this fact weighs little with many people. All our evidence about the humanity of the unborn child is derived from the researches of doctors, and most doctors are well aware of the facts. But knowledge of the facts does not deter doctors from doing abortions, and indeed the vast majority of abortions are carried out by doctors — the very people who are more aware than anybody else that the unborn child is human.
Furthermore considerations of justice cut little ice with those who see a denial of their alleged right to have an abortion as a threat to their own most fundamental needs and rights. Looking at humanity in general we can see that self-interest and self-preservation usually motivate the ordinary person more powerfully than does the abstract principle of justice, or the duty to care for others. Because people are often reluctant to admit this openly, arguments based on justice and our duty to care for others may often be met by abuse, by lies or by irrelevancies. Our arguments are not seen, by the person we seek to convince, as a profitable line of thought to explore, but as a direct threat to their self-interest, and therefore to be countered by all available means.
A different approach
Where we are discussing this problem with people who have strong convictions that abortion is desirable, we have to adopt a very different approach from the one outlined above. We have to begin by realising that a whole generation has been strongly conditioned by the media, and by certain organisations which have Government support (such as the Family Planning Association), to adopt certain attitudes, about which it may not have thought very deeply. Where I am taught something, and it appears to be very much to my personal and immediate advantage for that thing to be true, I am very likely to accept it, and not to enquire too closely about the underlying reasoning. The attitude towards abortion which people have been conditioned to accept is a logical extension of the whole attitude of our society today towards sexuality and the sources of human happiness.
The basis of the pro-abortion attitude
The most important contributing factors towards peoples' happiness are such things as love, security, faith, hope, creativity, inspiration and so on. People who have these things are manifestly happy, even if they have very few things which might be called "pleasures". Rightly understood and used, sexuality has a positive contribution to make to all these sources of human happiness. Unfortunately, when used as nothing more than a means of getting pleasure, it does not make a positive contribution. On the contrary, it tends to destroy love, security, faith and so on.
A pro-abortion attitude, therefore, often arises from a fundamentally wrong attitude towards human sexuality, towards what makes human beings happy, and towards life generally. These wrong attitudes are now inculcated from such an early age that people are growing up wholly unaware that they are basing their lives on false assumptions. People seek proof about these assumptions no more than they seek proof that air is breathable, because they are taken for granted among their friends, among their teachers and in the media. Basically their attitude can be expressed as a belief that they have certain rights. Unfortunately not only can no logical case be made out for the existence of these rights, but the very belief in their existence is grossly harmful both to the believers' own future happiness and to the well-being of their society. These "rights" could be summarised as follows :
1. The supposed right to enjoy the pleasure of sex whenever one can get it without physically harming others.2. The supposed right at all times to decide freely whether or not one will take any responsibility for the life or well-being of another.3. The supposed right to resist or reject anything which causes one pain or discomfort, or interferes with the way of life one has freely chosen.4. The supposed right, in a situation where one's rights conflict with those of another, to protect oneself whatever the harm done to the rights of the other person.
Changing basic assumptions
It should be apparent that considerations about abortion being the taking of the life of a human being, or about abortion being unjust, are unlikely to weigh strongly with those who have been conditioned to think in this way. One problem is that such people have probably never rationally formulated their beliefs. They just take them for granted. So if we are to succeed in our aim of achieving justice for the unborn child we must be prepared to take the time and trouble to think seriously about these assumptions and to expose the flaws in them. We must then explain clearly these flaws to people who may not even be aware of the true nature of their beliefs. We must be able to present cogent arguments as to why self-interest is not a satisfactory basis for living when pursued without regard to its effect on others.
Our task is made more difficult by the fact that in general we cannot use arguments derived from religion. Religion teaches us to love our neighbour, or at least not to harm our neighbour, and it is not difficult to show that in societies where such beliefs are generally accepted, whether they be large societies or small, the result is generally beneficial to the members of these societies. Nevertheless we have to accept the fact that we live in a society where religious beliefs are suspect, and most people find it difficult to believe in any being superior to themselves, or to accept any belief on the basis that it has been handed down or revealed by such a being.
Arguing as lawyers
We in the legal profession have two distinct advantages in this situation. The first is that members of this Association are not in general directly involved in the problem of abortion as are, for example, the members of the medical profession. Doctors often find it difficult to speak out forthrightly against abortion, because it looks as if they are being disloyal to, and critical of, their professional colleagues. We members of the legal profession have no such difficulty. Secondly, we have the advantage that our profession has a strong tradition of upholding justice and equity, and this tradition gives to our members standards of right and wrong which, although they may once have derived from religion, are not seen today as being associated with it. A further advantage is that we have our own media, our own publications, in which we can make our views known, and this is an advantage which people who are not members of a learned profession will not normally have.
Taking into account the great influence of our profession in the affairs of our country, these considerations should lead us to use every effort to apply our minds to the problems which have been raised in the preceding paragraphs, and to take every opportunity to speak to our professional colleagues about them. If we begin realistically tackling the underlying false assumptions which exist in our society, we may hope to have very much more success in the future in convincing those who are pro-abortion that the taking of another human life can never be an acceptable or sensible way of behaving. If, in addition, we can show that we are actively promoting and providing alternative solutions to the problems which abortion purports to solve, then there is every reason to hope that abortion may come soon to be seen as the cruel, mindless, and unjust activity which it undoubtedly is.
The Association of Lawyers for the Defence of the Unborn accepts the undisputed finding 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 father or by any other human being. The Association was founded by eight lawyers in May 1978 and already has well over 1000 members.
