Abortion Flashcards
(24 cards)
Finnis
conception is the moment at which a new individual comes into being and this should be when their acquire their rights
Warren
while a fetus might be a human - it is not a person yet .therefore priority should be given to the actual person - pregnant woman
She describes 5 characteristics of what it means to be a person.’consciousness and reasoning.’
Abott
Criticises warren - he 5 charestrisctics exclude disabled adults and fetus from the definition of a person
Marquis
Killing a fetus is just as bad as an adult because both are still being deprived of everything it might value in the future
Criticism - people who are using contraception as potentially doing the same thing.
Jarvis
Even if the fetus is a person a pregnant woman should be able to defend themselves fro, the physical invasion of an unwanted pregnancy.
Reva Siegel
Legislators may condemn abortion because they see those who are rejecting motherhood to be selfish and an unnatural choice.
Ronald Dwokin
People do not believe that the fetus has exactly the same rights as a pregnant woman, otherwise it would be impossible t justify abortion when a woman’s life is in danger.
what are the key developments in the law of abortions
- Offences against the person act 1861: the offence of procuring a miscarriage (section 58)
- Instant life Act of 1929 - the offence of child destruction. Act recognised for the first time that there may be a defence for the viable death of the fetus - save the life of the mothers. 28 wks vable of being born alive.
- Abortion act 1967 - abortion would be legal if 2 doctors certified that it would cause serious risk to the life of the mother and second f the child born would suffer physical or mental abnormalities.
- 1990 amendments - The abortion act applies to all aspects of pregnancy. section 1(1) states what conditions need to be met to qualify.
What does section 1(1)of the 1990 amendment act
section a - pregnancy has not exceeded 24 weeks, carrying on the pregnancy would involve a risk greater than if the pregnancy was terminated, of injury to the physical and or mental health of the pregnant woman or any existing children of her family.
section b - termination is necessary to preserve grave permanent injury to the physical or mental health of the pregnant woman.
section c - continuance of the pregnancy would involve risk to the life of the pregnant woman
section d - there is a substantial risk that if the child was born it would suffer from physical or mental abnormaities
r v carl whant
A man was convicted for stabbing a pregnant woman. he killed both the lady and the baby. the CPS added the child destruction charges - he had a committed a crime against the unborn child
Rv bourne (development in the law to show that criminal liability may not be a consequence of an abortion)
a doctor performed an abortion on 15 years old who was raped. He argued that there must be conditions where you can carry out an abortion lawfully and incorporates the defence from 1929 where yo save the life of the mother.
Justice Macnaughten: life depends on health, health includes both physical and mental health of the mother. the doctor was acquitted using this broad interpretation.
what cases can be used when discussing the viability of the feotus ?
this was around the Abortion Act 1967
CVS - a man tried to stop a partner from having an abortion the foetus was 18-21 wks. the court said no - the child is not capable of being born alive.
RANCE V Mids downs Health Authority - hospital told pregant lady that they could only warn of a risk at 26 weeks. the court said that it would be 27 weeks that the child is capable of being born alive.
criticisms of the law and acts
secton d very controversial -no clear defnitions of on terms. absence of definiotn creted rom for medical discreton-but interpretations may vary. Jepson for example the doctor perfomed abortion under desction 1 (1) D the mother didnt belive that her aby was seriously handicapped. she tried to sue -but because 2 doctor had acted in good faith nothing could be done
what is the role of the doctor in relation to the abortion
They can be vulnerable to prosecution - R V smith (DOC failed to make a genuine medical assesment and failed to inform her to get a second opinion.and descrbed as charging execissive fees. All three combined made the court conclde that he wasnt acting in good faith. he was covicted under the 161 act.
UK V DASS- Healthcare proffesional acting under the doctor would be acting lawfully under the abortion act
Conscientious objections
relives medcal proffessional from having to be involved in an abortion.
Section 4 of Abortion Act
if a doc wants to exercise these rights, he can but he must tell patient to see another doctor and give them information to do so. this ensures lawful access to abortion - hower i undermines the purpose of CO - reluctant to facilitate the act even if they are not directly involved.
Janaway V Salford Heal authority
Secretary of healthcare refused to type refferal letter. shw was dismissed. HOL she cant rely on CO becuase she wasnt personally involved in the treatment.
Doogan V NHS Greater Glasgow
midwives didnt want to assit in the aftercare of abortion patients or supervise other staff in their care.
supreme court the midwives could refuce to help with the after care because section 4 allows ‘an individual to to object to particpate in any treatment under the act’
secretaries and mannagers can not rely on this because they are far too removed.
Can you be charged for procuring a miscarriage if you take a morning after pill - contragestion
R V SOS for health
- The judge :for there to be a miscarriage there must be some sort of carriage (an attachments to to the womans body).
- therefore not a miscarriage
Minors and Abortion
R (Axon) v Sos Health
- it is lawful for the parents of a gillick competent child to not be informed about the abortion - this is fair because that is the same procedure for other medical treatments.
however abortion is a diffrent form of treatment -cause psycological damage and mey need emotional support from families. the law is clear abortion shouldnt be singled out as a special treatment.
RE X
- Shows that the courts are wlling step in and order an abortion -for a gllick imcompetent child - however it was something the child wanted so it was in her best interests.
Incompetent patients and Abortion
NHS Trust v CS
Adult suffering from head injuries - lost capacity and didn’t remebr her view on abortion. Court ruled in her best interest. took nto account that she had an abortion previously had an abortion - so she wsnt physically wasnt n her best interest.
rights to abortion in canada and US
They are rights covered by the constituion but the US has a trimester approach. the later in the trmester the more rghts the feotus will have.
Does a pregant woman have a right to an abortion under Art 8
P and S v Poland - minor bwho was raped - her access to an aborton was limited ecause they tried to disuade her and didnt provide adequate counselling session. Court said polad fell short of their art 8 obligation
Bruggeman and scheuten Germany - Germany changed laws to be similar to the UK’s. German court thought it violated the rght to the feotuses right. The commision rejected this arguement there was no violation of art 8
Tysiac v Polnd (loosing an eye) , R v Poland (genetic testing) - both cases practical accessibility to abortions were not available so court said it violated art 8
ABC V Ireland -
A and B wanted an abortion for heath and wellbeng - court gave ireland margin of apprecation - protecting the rights of the fetus is necessary for ther own society. it was okay.
C needed abortion to save life - but no trained doctors - violated Art 8 - court reinforced ideas that if you say abortion is available it should be available.
What rights do the father have ?
Paton V UK
Fathers art rights are evoked however mothers rights trumps his. Promotion of bodily intergrithy.
What is the purpose of section 5 (2) of the aborton Act
you can have an abortion
if you havem multiple pregnancies and one is disabled - youu can terminate the fetus whilst trying to save the others
- large pregancy too risky to carry on
1990 ammendments makes it clear that both scenarios are lawful.
