The Association of Lawyers for the Defence of the Unborn
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| Scottish Catholic Observer |
Contents: The Psychological Consequences of Abortion; "Abortion in Great Britain: One Act, Two Laws; Abortion Law in America; The Post-Coital Pill.
The Association of Lawyers for the Defence of the Unborn
40 BED FORD STREET,LONDON,WC2E9EN
Chairman: D. A. POOLE, Q.C.. M.A. (Oxon.),
Hon. Secretary and Editor: M. N. M. BELL, M.A. (Cantab.).
Hon. Treasurer: T. G. A. BOWLES, M.A. (Cantab.).
Patrons of the Association: The Rt. Hon. Lord WHEATLEY; the Rt. Hon. Lord RUSSELL OF KILLOWEN
Spring 1986
Number 29
News and Comment
The Psychological Consequences of Abortion
In our Autumn 1985 Newsletter (number 27) we sought to show that the physical consequences (sequela) of abortion were such that the circumstances win which a doctor could decide in good faith that the balance of risk of physical sequelae favoured abortion must be rare indeed. This article seeks to show that the same is true of psychiatric sequelae.
Nobody has produced any evidence to show that the mental health of women was made worse by pregnancy before 1967, and that since 1967 this problem has been overcome by abortion. Yet 90% of abortions are carried out on the ground of risk to mental health. If termination of pregnancy improved mental health there would now be massive evidence of an improvement in mental health in the female population. Why have those who claim this to be the case never been able to produce any such evidence? Is it because nobody is prepared to allege that pregnancy makes mental heath worse? Or is it because nobody is able to believe in the coincidence that in virtually every case where a woman requests an abortion a gynaecologist is able to discover that in that particular case termination is indicated for psychiatric reasons?
In the absence of any evidence that abortion makes mental health better the pro-abortion lobby has sought to defend abortion on psychiatric grounds by asserting that at least abortion does not make mental health worse. Even if they were able to demonstrate this they would only be half-way to providing that the balance of risk invariably favours termination. But in fact they have certainly not been able to demonstrate even this to the satisfaction of any impartial observer.
Does Abortion Damage Mental Health?
It is necessary to consider, therefore, what long-term mental damage is caused by abortion. Unfortunately, this has not been researched by doctors in anything like the same depth as has the physical damage. The report most commonly cited by pro-abortionists is that of Dr. Colin Brewer published in the British Medical Journal in 1977 (B.M.J. 1: 467-477). This purported to show that only 3 in 10,000 woman who had abortions suffered psychoses as a result. The report was based on a questionnaire addressed to practising psychiatrists in the West Midlands. Dr Brewer's pro-abortion views are well known, however, and only 25% of the psychiatrists who were approached participated. Furthermore, the figure was based on hospital admissions, and many psychoses are not now treated in hospitals.
A much more reliable was that of Sim and Neisser in "The Psychological Aspects of Abortion" (Univ. Public. of America Inc., Washington D.C. 1979). This showed not only that post-abortion psychoses were more common than Dr. Brewer had indicated, but also that about 50% of them did not respond to treatment. This was contrasted with psychoses arising following the birth of a baby, virtually all of which responded to treatment with a full remission of symptoms.
An article by Dr. R.K. McAll in "The Lancet" of 16th August 1980 showed a clear link between abortion and anorexia nervosa. The article showed that where there were terminations of pregnancy for non-medical reasons this could create hidden guilt feelings either in the patient or in a close member of the family, and that self-starvation could be a consequence of these feelings.
A recent study in Canada entitled "The Abortion Choice: Psychological Determinants and Consequences", (Gold et al. Concordia University 1984) funded by a grant from the Fa,mly Planning Division of Health & Welfare, purported to show that abortion does not have negative psychological consequences. One of the few consultant psychiatrists who has made a thorough analysis of this problem over many years is Dr. Myre Sim of Victoria, British Columbia. Writing in the September 1985 Newsletter of our sister organisation Canadian Advocates for Human Life, she showed that the survey which preceded this recent study was so superficial that no firm conclusions at all could be drawn from it. So far as any conclusions at all could be drawn, they showed that maternity patients had better psychological adjustment than abortion patients, and not the contrary.
Dr Sym has little time for gynaecologists who believe that surgery is the best solution for mental health problems. She says:-
"Because of my conservative approach to therapeutic abortion I was able to demonstrate successfully that psychiatry was competent to deal with all the psychiatric hazards of pregnancy, and that the day that a psychiatrist requested a gynaecologist to treat his patient's mental state has not arrived."
Dr Sym is equally scathing about social workers who think that surgery is the best solution to the social problems of their client. She says of the reasons why women seek abortions:-
"As most of these reasons are social and not necessarily formidable ones, it forces one to consider why we keep turning out social workers by the thousands, when they are obviously incapable of dealing with elementary social problems, and are prepared to sacrifice the life of an unborn child on the altar of their incompetence."
No report on this matter can be regarded as anything more than an indication of the damage done to mental health by abortion. In the nature of things it is never going to be possible to assess accurately the extent of the psychiatric sequelae of abortion. Apart from anything else, a personality or neurotic disorder may be said to amount to mental illness. There is in fact a continuum between normal experiences of depression or guilt and the point where these could be described as neurotic disorders.
Is Absence of "Distress" Proof of Mental Health?
Surveys carried out by those who seek to show that abortion does not have harmful psychological effects usually rely heavily on interviews with women who have had abortions. If large numbers of such women claim to have experienced no guilt or distress following their abortion this is taken by the researcher as evidence to show that abortion does no psychological harm. But may it not n fact be evidence of exactly the opposite?
That not many women suffer from dementia, schizophrenia or manic depressive psychosis following an abortion is not surprising, in the present climate of permissive morality. But does this mean that no damage has been done to their mental health?
The truth is that grief or depression following the loss of a baby by miscarriage, whether natural or induced, is a normal and natural reaction. It is reasonable to assume that there is something wrong if a woman does not experience such feelings. When a woman claims not to have any of these normal reactions following an abortion this must give rise to a suspicion that the feelings are being suppressed, and experienced at a deeper level. And indeed many women have said that it has not been until many years later that they have realised how deeply their lives have been affected by that choice.
Thus the statistics quoted by the researchers in support of the thesis that abortion has no psychiatric sequelae may in fact show just the opposite. That is why the conclusions drawn from such surveys are worse than useless. They are positively misleading.
The Possibility of Civil Proceedings
In the light of this, all one can say is that there is at present no evidence that providing an abortion for a patient will (on balance) improve her mental health.There are no rational grounds or statistical evidence on which such a conclusion could be reached. Abortionists who want to allege that abortion can be beneficial will point to a woman who is anxious about the effect of pregnancy on her career or her accommodation. But anxiety about a career or accommodation is not a symptom of mental illness, unless it is of irrational or hysterical proportions. On the contrary, it is normal and natural, and would indicate that the woman was in good mental health and aware of the matters about which she ought to be concerned. Such woman may have social problems, but the medical profession does not exist for the purpose of solving social problems.
Indeed a doctor who uses medicine for such a purpose is mis-applying his sills, and if he damages his patient's health as a result could be held to be negligent. It is only a matter of time before proceedings for negligence are brought against a doctor for providing an abortion when there were no medical grounds for such treatment and the woman subsequently suffered adverse mental side effects. In such a case the anticipated sequelae of abortion, as set out in this article would be highly relevant, as they are matters of which the doctor should have been aware.
The Possibility of Criminal Proceedings
In order for an abortionist to avail himself of the defences provided by the Abortion Act 1967, it would not be necessary for hm to show that abortion was the right or even the best treatment for his pregnant patient. It would suffice for her to show two doctors had each formed the opinion in goof faith that an abortion would improve the mental state of the mother.
An editorial review in the British Medical Journal (B.M.J. 1976, 1:1239) suggests that he would find difficulty in doing even this. It found that at the very least there is a universal transient depression following abortion, and that those influenced by others or advised to have a termination may have continuing feelings of regret and more severe degrees of depression. Abortion was even more clearly contra-indicated in the case of patients who were genuinely mentally disturbed, because these were the ones most likely to show serious psychiatric sequelae following an abortion.
It would appear, therefore, that a doctor who sought to show that he had formed the opinion in good faith that the balance of risk favoured a termination of pregnancy on grounds of mental health would be in considerable difficulty if a prosecution were brought. Furthermore his position is likely to become much more difficult in the near future, because various pro-life organisations, both in this country and overseas, are now heavily involved in post-abortion counselling. The demand for such counselling appears to be overwhelming, and a very substantial body of case histories is rapidly being built up. When this is collated and analysed it will present a formidable problem for any doctor wishing to show that he genuinely believed that an abortion would improve the mental health of a particular woman.
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"Abortion in Great Britain: One Act, Two Laws"
An article with the above title by Mr Kenneth Norrie, who is Lecturer in Law at the University of Aberdeen, appeared in the Criminal Law Review for August 1985 at page 475. Members of this Association are strongly urged to read this article, which in many respects reinforces the views put forward by this Association as to how the law relating to abortion in this country should be interpreted.
The main contention in this article is that, because the Infant Life (Preservation) Act 1929 does not extend to Scotland and thus Scots law does not specifically and explicitly protect the child capable of being born alive, the defence provided to a doctor by the Abortion act 1967 are, in Scotland, available to doctors who kill unborn babies of any age, regardless of whether the babies are capable of being born live.
The "Potential" Child
In some respects members of this Association would have to take issue sharply with some of the remarks in the article. Mr Norrie quotes Scottish cases to argue that:
"the victim of the crime of abortion or attempted abortion in Scots law is the potential child."
the concept of a "potential child" is not one that is known to English Law. The case which he quotes in support of this theory pre-date the Abortion Act 1967 by many ears, and the Abortion Act, which applies in Scotland, knows no such euphemism. In section 1(1)(b), for example, it openly and clearly refers to the proposed innocent victim, the unborn baby, as "the child", and indeed the Abortion Act clearly recognises throughout that abortion is a means of bringing about the death of an actual child.
More recently i the case of Emeh v Kensington A.H.A. [1984] 3 All ER 1044, Lord Justice Slade, in giving the reasons why the plaintiff decided against having an abortion, said "the child in this instance was that of her husband". A little later on in his judgement he said: "I think that they could and should have reasonably foreseen that. . . . . she might well decide to keep the child." (Our emphases).
Numerous other judgements might be quoted to show that although the unborn child is occasionally referred to by judges as a "foetus", there has never been any suggestion that the foetus is anything other than a chid at a particular stage of development, nor any suggestion that there can be such a thing as a "potential child".
The Potential Pregnancy
Furthermore Mr Norrie states that : "A woman is clearly not pregnant simply because her egg has been fertilised". He correctly draws attention to the fact that this must be the case where the fertilisation takes place "in vitro", but one cannot infer from this that a woman is not pregnant when her egg is fertilised in the normal way in her own Fallopian tube. The proposition that a woman who has conceived a child is not pregnant until the moment when, about a week following the conception, the child implants in her womb is not a wonderful new medical discovery. On the contrary it is an absurd fiction invented by certain lawyers in an attempt to exculpate doctors who artificially induce an abortion between conception and implantation.
The word "pregnant" in ordinary language means, and has always meant, "having conceived", as is confirmed by the Oxford Dictionary. This matter was dealt with fully in our Autumn 1983 Newsletter, and we remain convinced of the very serious unsoundness of the law of the Written Answer given to the House of Commons by the Attorney General on 10th May 1983 (Hansard, Cols.238 and 239). This ordinary meaning of the word is also the meaning given in leading medical dictionaries, and the points made in the article by Dr. John Finns on "Miscarriage" on the back of the same Autumn 1983 Newletter are unassailable.
On the question of whether the law against abortion covers the situation between conception and implantation, F.J. Taussig's classical medical work on abortion "Abortion: Spontaneous and Induced" (London 1936) maintains that abortion is "the detachment or expulsion of the previable ovum", a definition which plainly understands "ovum" as "fertilised ovum", and equally plainly includes the unimplanted embryo. In R v Wycherley, [1838] 8 C & P 262, Gurney B., at the Oxford Assizes, charged the jury that "quick with child is having conceived", and plainly implied that it matters not how early in the pregnancy. There are other authorities to the same effect.
One may look at the question from the point of view of the mischief intended to be prevented. Quite clearly the fertilised ovum is a life in being, by any definition, and is equally clearly a human life. The mischief that the law against abortion was intended to prevent was the unlawful taking of innocent human life, which is clearly brought about by destruction of the life between conception and implantation.
The Potential Abortion
In dealing with the question of whether it is a criminal offence to provide an abortifacient to a woman before it is known if she is pregnant, Mr Norrie makes some very interesting observations. He points out that s.58 of the Offences Against the Person Act 861 provides that a person may be charged with procuring an abortion whether the woman is pregnant or not.
He further points out that s.1 of the Criminal Attempts Act 1981 makes unlawful an act done with intent to commit an offence, even though the facts are such that the commission of the offence is impossible. He then finally points out that neither of these Acts applies to Scotland.
His emphasis on this gives a special significance to the timing of his article. A.L.D.U. members will recall that in our Summer 1985 Newsletter (Number 26) we reported that the Assistant Procurator Fiscal in Edinburgh was looking into the question of whether trials of the drug RU486 being carried out in Scotland were illegal. This drug is the new "abortion pill" which is being given to women to induce a miscarriage. Mr Norrie seems to concede that the use of a "precautionary" pill, taken by woman without knowing whether she is pregnant or not, may well be illegal in England, but argues that its use is not illegal in Scotland. Does this explain why these trials are being carried out north of the Border?
Throughout his article Mr. Norrie shows an awareness of many points relating to abortion which have been previously urged by this Association. With the reservations mentioned above, this article is a most useful contribution to an understanding of the present state of the law in the two different parts of the United Kingdom.
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Abortion Law In America
by John Warwick Montgomery M.Phil in Law (Essex), Ph.D. (Chicago), of the Middle Temple, Barrister
We are informed by Mohr, in his standard work on abortion in America, that "in the period from 1880 to 1900 the United States completed its transition from a nation without abortion laws of any sort to a nation where abortion was legally and effectively proscribed", (J.C. Mohr, Abortion in America: the Origins and Evolution of National Policy 1800-1900: New York Oxford University Press 1978 at page 226). This is, however, a dangerous half-truth, for prior to the enactment in 1828 of the New York anti-abortion statute which became a model for those of many other states, the common law existed - and that common law was essentially the English common law as set forth by such classic commentators as Blackstone. Thus the state anti-abortion statutes, which became more and more severe by the end of the 19th century, gradually eliminating the earlier statutory distinction between the foetus before or after quickening, were a genuine reflection of the respect for unborn life in the English common law. By the end of the 1950's, most U.S. jurisdictions banned abortion completely except to preserve the life of the mother.
In 1973, this pattern was radically changed, not by statue but by U.S. Supreme Court decision in the well-known case of Roe v Wade [1973] 93 S.Ct. 705. A Texas anti-abortion statute (typical of most state statutes criminalising abortion) was struck down as unconstitutional, especially in that it violated the "right to privacy" of the Plaintiff, a single pregnant woman. Henceforth American women would have an absolute right to physician-performed abortions during the first trimester of pregnancy, and state legislatures attempting to regulate abortion during the second and third trimesters would be radically limited in the extent to which they could do so. In actual effect, Roe v Wade judicially created abortion on demand in the United Sates.
Blackmun J. wrote for the majority in this leading case, and his opinion remains a jurisprudential mystery to many on both sides of the Atlantic. The "right to privacy" on which the decision chiefly relies is nowhere mentioned in the U.S. Constitution; it was first argued for a constitutional right in a Harvard Law Review article in 1890 by Warren and Brandeis. But Blackmun's use of the doctrine in Roe v Wade bears virtually no relation to the original meaning of that legal principle. (The Court would hardly argue that whenever one's privacy is potentially disturbed, e.g. by prying neighbours or obnoxous newsmen, one may kill the source of the disturbance and the result would be justified homicide!) Understanding Roe v Wade requires not jurisprudential acumen but sociological perception: as is so often the case with contemporary U.S. Supreme Court decision, social and political considerations played the primary role. The majority in Roe v Wade say as much: "This holding is consistent with the relative weights of the respective interests involved . . . . . and with the demands of the profound problems of the present day".
The case-law picture in the United States since Roe v wade can best be seen by a short catalogue of the most important U.S. Supreme Court decisions on the subject from1973 to the present, as follows:
Doe v. Bolton, 410 U.S. 179 (1974) (companion case to Roe):-
Requirements that a hospital committee or a second doctor approve an abortion are unconstitutional; state residence cannot be required to obtain an abortion.
Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976):-
Spousal consent and blanket parental consent requirements are unconstitutional, a requirement that a woman certify "that her consent is informed and feely given and is not the result of coercion is constitutional.
Maher v. Roe, 432 U.S. 464 (1977):-
The federal Constitution does not require that tax dollars be used to pay for non-therapeutic abortions for the poor.
Poelker v. Doe, 432 U.S. 519 (1977) (companion case to Maher):-
Public hospitals need not provide non-therapeutic abortions in their facilities.
Bellotti v. Baird (II), 443 U.S. 622 (1979):-
For a parental consent statute to be constitutional, a minor must be given the alternative of going before a judge or administrator to show either: (1) that she is mature enough to decide about abortion without parental involvement, or (2) that even if immature, an abortion without parental involvement would be in her best interest.
Harris v. McRae, 448 U.S. 297 (1980), and Williams v. Zbaraz, 448 U.S. 358 (1980):-
Neither the Medicaid statute nor the U.S. Constitution requires tax dollars to be spent for "medically necessary" abortions for the poor.
City of Akron v. Akron Centre for Reproductive Health, 103 S. Ct 2481 (1983). Roe v. Wade reaffirmed:-
An informed consent ordinance is unconstitutional: a physician must have discretion to decide what information to give or withhold from a woman considering abortion. the standards for the constitutionality of a statue requiring parental consent were reaffirmed. Legislative regulations concerning maternal health are constitutional only when they comply with standards established by professional medical organisations. A 24 hour waiting period is unconstitutional. A requirement for "humane and sanitary" disposal of aborted unborn child is unconstitutionally vague.
Planned Parenthood Association of Kansa City, Mo. v. Ashcroft, 103 S. Ct 257 (1983) (Companion case to Akron):-
The requirement that a second doctor be present in a post-viability abortion to aid a live-born child, the requirement that a pathology report be completed after each abortion, and a parental consent statute with a proper judicial consent alternative are constitutional; a second trimester hospitalisation requirement is constitutional.
Simpoloulos v. Virginia, 103 S. Ct.2532 (1983) Companion case to Akron and Ashcroft):-
The requirement that second trimester abortions be performed in a licensed clinic was held to be constitutional.
The viewpoint is frequently expounded that the U.S. Supreme Court has been moving in a more conservative direction on abortion since Roe v. Wade. The cases belie that conclusion. True the Court has ruled against as constitutional right to publicly funded abortions (Maher, Poelker, Harris); and it has allowed for a limited range of parental consent statutes, as well as a requirement that second trimester abortions be performed in hospital or licensed clinics (Bellotti, Ashcroft, Simopoulos). But spousal consent, and legislative efforts to set forth the substantive content of the woman's own "informed consent" have been roundly rejected (Danforth, City of Akron). Most significantly, Roe v. Wade was reaffirmed in the City of Akron case (1983), but with a powerful dissent by Justice O'Connor, who would clearly like to see the decision reversed. Unless or until the composition of the Court changes, however (as it doubtless will during the next presidential term, since five of the current justices are seventy five years of age or older), the American legal landscape offers virtually no right to life to the unborn child.
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The Post-Coital Pill
In our Winter 1984 Newsletter (No.24) we pointed out that the above pill, which is administered after intercourse is in fact an abortifacient, and not a contraceptive. To provide the pill therefore is an offence under ss.58 and 59 of the Offences Against the Person Act 1861, to which the provisions of the Abortion Act 1967 will normally provide no defence. It has, however, been drawn to our attention that in certain circumstances the provision of this pill would in fact act as a contraceptive, and not as an abortifacient, and therefore its provision would not be illegal. It is very important for members of this Association who are concerned to argue the case agains the unlawful provision of this pill to be absolutely clear as to what the medical effects are. We have therefore consulted the World Federation of Doctors who Respect human Life on this issue. It is our normal practice in this Association to consult the Federation on matters of this sort, and we are deeply grateful to them for all the help which they have given us over the years.
We understand that the precise medical position is as follows: There are three possibilities where this pill has been provided following intercourse. First of all, obviously, if the act of intercourse takes place during the three weeks out of every four in which it is impossible for conception to occur, then its only possible effect will be to act as a contraceptive, in respect of future acts of intercourse during that four weekly period. Secondly, if the particular act of intercourse takes place in the three days prior to ovulation, then the pill will have a contraceptive effect to prevent fertilisation. Only if the act of intercourse takes place 24 hours after ovulation has occurred will the pill have the effect of causing an embryo created as a result of that act of intercourse to abort. In simple terms, therefore, there is only one day in a woman's monthly cycle on which if she takes the post-coital pill it will cause her to have an abortion.
Any doctor, therefore, who wished to keep within the law could easily do so by a few simple enquiries directed to his patient. Only if his enquiries revealed that it was possible that ovulation had taken place within the previous 24 hours could be be said to be providing the pill with intent to procure a miscarriage, and therefore committing an offence under the law against abortion.
The above facts about the medical position are given for the assistance of members of this Association who are called upon to advise on this matter. They take no account of the fact that there are strong medical grounds for arguing that this pill should not be provided to a woman under any circumstances. As many as half the patients who are given this pill have adverse side-effects, and in some cases it can lead to very serious complications such as ectopic pregnancy. These dangers must never be overlooked.
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 protection of the law 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 1,400 members.
