Abortion Law

Question 1

Feminist perspectives on abortion (pro-choice)

Answer 1

more reproductive freedom that abortion - women have a right to self determination, privacy and bodily autonomy and integrity.

not allowing abortion violates these rights.

rejects notion of competition between value of feotus & rights of women - rights of feotus is relational rather than absolute; value people for personality not mere existence

Question 2

Borgman quote on abortion in law

Answer 2

‘moral aspect of abortion that we should see codified in law is a woman’s dignity and autonomy in making their own decisions about fate of her pregnancy and thereby her life’

Question 3

Feminist perspectives on abortion (pro-choice; invasion of woman’s body) - Thompson

Answer 3

‘having a right to life does not guarantee having either a right to be given the use of or right to be allowed continued use of another body’

Question 4

Feminist perspectives on abortion (pro-life)

Answer 4

supports anti-motherhood - views abortion as making women’s bodies as a tool of oppression for men; a reusable sex object.

“now you too can walk away from your responsibilities” - lowering women’s standards to a masculine viewpoint of a wombless male world.

Question 5

UK right to abortion (SHELDON)

Answer 5

victorious in the legal right to abortion but not moral = essentially decriminalization and whole freedom of reproductive choice for women)

but Sheldon argued ‘british abortion laws cannot be considered liberal legislation’

Question 6

Williams quote on balancing feminist abortion/anti-abortion

Answer 6

‘for all but most extremist anti-abortionists. The more arresting question is not whether a woman has a right to choose, but rather what appropriate limits or scope this right might be’

Question 7

Abortion as crime legislation (OAPA 1861)

Answer 7

offences against persons act 1861, S.58; administering drugs or using instruments to procure abortion

S.59 prohibits supply of instruments with knowledge of what such objects were going to be used for

Question 8

Abortion as crime case: R v Catt

Answer 8

mother aborted baby 1 week before due date - charged with murder - 8 years imprisonment

Question 9

Abortion as crime case: R v Bourne (N. Irish case)

Answer 9

D gave abortion to 14 year old rape victim - court decided hadn’t acted unlawfully if acted in good faith to save girl’s life (i.e. preventing someone from becoming a mental/physical wreck) - D noted wanted all abortions to be legal in this respect, but would not have carried out abortion if been of prostitute mind (moral right not present)

Question 10

Abortion as crime: infant life preservation act 1929 S.1

Answer 10

punishment for child destruction - killing unlawfully a child/feotus capable of being person (if feotus past 28 weeks used as evidence of potential life)

Question 11

Infant life preservation act 1929 case examples - Carl Whant

Answer 11

raped and stabbed 19 year old to death, killing daughter due to be born in 2 weeks, given life imprisonment (judge emphasised name given to feotus and closeness to birth)

Question 12

problem with removing abortion law on criminal convictions

Answer 12

if decrim, how would we measure feotus capability of being a person? mother can abort at 28 weeks then debatable what kind of criminal justice will prevail for pregnant women losing feotus to a crime. - may require courts to look deeper into intention of mother to keep child (i.e. medical reports, scans, purchasing of supplies)

Question 13

legal status of feotus: St Georges NHS Trust v S

academic commentary

Answer 13

36 week feotus ‘not nothing, not lifeless and it is certainly human’ - feotus protected by law but does not have right that can be enforced by other people.

Paton: not possible to bring proceedings in name of feotus.

Question 14

Art. 2 ECHR (right to life)

Answer 14

feotus is not protected under this article as outlined in Vo v France

Question 15

Current Abortion Law (historical background)

Answer 15

unsafe back street abortions - “class clash” middle class women having safer abortions than working class.

1966; estimated 100,000 to 250,000 illegal abortions per year. - high number of women exposed to potential health risks pursuing abortions

rise of women’s rights in 60s: debates on equality and access to workplace beyond childbearing capacity and thalomide/german measles outbreak led to discussion of abortion where feotus is disabled/severly affected by disease.

Question 16

Grounds for abortion - abortion act 1967

Answer 16

doesn’t provide right to abortion - made clear in drafting not a liberal free for all act. S.1 pregnancy not exceeded 24 weeks.

S.1(a) is classed as social ground and is most commonly used = continuance of pregnancy would involve risk, greater than if it were terminated, of injury to physical/ mental health of pregnant woman or existing children of her family.

S.1(d) is also important in determining removal of abortion act (disability ground) = substantial risk that if child born it would suffer from physical/mental abnormalities as to be seriously handicapped.

Question 17

Abortion act 1967 S.2 & S.4

Answer 17

may take into account woman’s actual/foreseeable environment and need for 2 medical practitioners may be discounted if termination seen as immediately necessary to prevent permanent injury to physical/mental health of woman. (S.2)

BUT, under no legal duty to participate in treatment except if necessary to save life/prevent personal injury (S.4)

Question 18

Ellie Lee comment on abortion act 1967

Answer 18

current law wording of statute makes no reference to rights of women who want to terminate pregnancy

Question 19

Sheldon critique: constructs of woman as minor and victim emerging from abortion act

Answer 19

minor: in terms of immaturity and underdevelopment with regard to matters of responsibility, morality and womanliness - task of law here is one of responsibilisation = if woman seeks to evade consequences of her recklessness, law should act as barrier.

Victim: distraught, out of her mind with worry of pregnancy; desperate and if no dr will help who knows what she will stop at (e.g. older mothers, unstable family, wanting to sufficiently support existing children).

Question 20

Law creates woman it seeks to protect (Smart quote)

Answer 20

‘as long as we can translate the vast and differentiated array of women into more easily knowable woman we can gain purchase in the law.’

focus on woman not women - but 1 in 3 women have abortions so procedure sought by women of all ages and walks of life.

reform needs to align current law with modern medical practice and moral values.

Question 21

Operation of abortion act 1967

Answer 21

2014: 38% of women undergoing abortions in Britain had one or more previously - vast majority under S.1(a) = 98%

basically abortion on demand but need 2 practitioners to sign it off as “gatekeepers” of abortion - risk of termination arguably always less than risk of pregnancy

Question 22

operation of abortion act S.1(d) - feotal abnormality

Answer 22

must be substantial risk of being seriously handicapped - discretion of doctors for both these meanings.

2015: 3213 made on S.1(d) ranging from congenital malformations to chromosomal abnormalities

Question 23

feotal abnormality case: Jepson v Chief Constable of West Mersia

Answer 23

Jepson sought judicial review of decisions by cc not to charge Dr for procuring miscarriage when performed abortion for feotus diagnosed with clef palette, J herself was born with such and corrected by series of facial surgeries - argued doesn’t amount to serious feotal abnormality under act

court said Dr had formed a ‘good faith’ judgement.

Question 24

operation of abortion act - Sheldon positive critique

Answer 24

whilst we have one of the most formally restrictive laws of those countries where abortion is legalised, rates of abortion increase year on year which confirms sheldon’s observation that since AA 1967 the interpretation of it has gradually become more liberal and access to safe, legal abortions has greatly improved.

Question 25

But issue with abortion act - Ellie Lee

Answer 25

‘its availability in practice has outpaced that which the law might appear to allow’

Question 26

Medicalisation and its problems -Sheldon Critique

Answer 26

law as it stands should still be perceived as a problem ; ‘legal regulation of abortion deconstructs woman-centered way of thinking’

Question 27

Dr. as gatekeepers in medicalisation of abortion

Answer 27

law in Britain is outdated because it contradicts the principle of patient autonomy which has come to inform medical law.

Question 28

Disability abortion problems (jackson positive)

Answer 28

• expresses negative discriminatory attitudes regarding traits and these already living/carrying it.
• intolerance of diversity; selectibe abortions involve decision based on feotus traits not because of it is particularly unplanned, unable to be financed or simple unwanted by mother before diagnosis.

BUT, Jackson argues it is plausible to believe disability makes life less satisfying without believing a person with a disability is less valuable - issue; people with disabilities do not already have same level of respect and value in society as those do not; preconceived notions of their life being less satisfying without experiencing it firsthand

Question 29

Reasons for decriminalisation (participation in public sphere)

Answer 29

women should be enabled to fully participate in public sphere on equal terms with en and control of one’s fertility is a fundamental perquisite for such participation

Question 30

reasons for decriminalisation (S.1(A))

Answer 30

broad wording of S.1(a) permits Dr to exercise discretion liberally in line with evolving attitudes of patients being routinely trusted to make medical decisions for themselves.

BUT, 2 Dr’s signatures becomes an entirely bureaucratic one, serving no obvious broader purpose.

Question 31

reasons for decriminalisation (evolving situation of medical expertise)

Answer 31

Abortion introduced in 60s when provisions reflected the need to eradicate dangerous abortions and abortions were far more technically demanding (i.e. approval of 2 drs and on approved premises)

European Medical Agency states there is no clinical need for drugs to be taken on approved premises or to be Doctor who gives it them

Question 32

potential of decriminalisation impacting abortion rates

Answer 32

removal of specific criminal prohibitions in offences against persons act 1861 & Infant Preseveration act 1907 (child destruction) would have effect of decrminalising post-viability abortions.

Question 33

solution to potential of decriminalisation on abortion rates

Answer 33

i) difficulty and risks involved in later procedures offers reason to suppose removal of criminal penalties would not lead to dramatic escalation in later terminations.
ii) State of Victoria (AUS) addressed this by taking out women and healthcare professionals of criminal law altogether and retaining criminal penalties against professionally unqualified abortions at all gestation - no hard data, but appears not to have resulted in increased number of later terminations in vic as professionals set their own limits on its services

Question 34

Gender Selection issue

Answer 34

sex selection is not an issue if woman’s mental or physical health will be adversely impacted by the pregnancy

2015: amendment made to serious crime bill to make abortions based on feotal gender a crime was defeated 291 votes to 201 = gave pro-life groups greater anti-abortionist stance in language of human rights and feminism: a woman’s right to life is a basic feminist demand in any campaign attempting to end violence against women and this must be regarded when arguing for an absolute pro-choice position.

Question 35

Williams suggested solution on Gender selection

Answer 35

restricting sex selection to women who’s needs surpass a certain threshold of urgency.

BUT, unlikely not to find out enough about woman’s circumstances to make an authoritative decision without unacceptable infringement on their private life and provides another condition for which women must meet to exercise their bodily rights.

Question 36

Viability debates (parliamentary actions)

Answer 36

attempt by parliament to reduce time-limit under S.1(a) = private members bill successful in reducing time limit human fertilization and embryo act 1990 from 28 weeks to 24 weeks.

2008: further attempts made to reduce limit under HFEA 1990 but British medical association against this.

Question 37

Reasons for 20 weeks (Dorries)

Answer 37

• 2/3 of babies born at 23 weeks survive in top neonatal clinics
• limit most liberal in europe; 24 weeks double limit of that in France & Germany
• babies can now undergo surgery in the womb under 24 weeks (i.e. for spina bifida)

Question 38

Reasons for 24 weeks (Bristow)

Answer 38

• women need to access safe legal abortions and so should be no time limit; abortions are always the least bad option at a difficult time
• earlier abortions may be safer but for many reasons women may not have access early on
• changes in a woman’s circumstances can mean a wanted baby becomes unwanted (i.e. death of partner, discovers feotal abnormality, change in financial position)
• no evidence feotus feels pain at 24 weeks

Question 39

Abortion in N.Ireland

Answer 39

Abortion act 1967 does not apply - R v Bourn applies common law position on abortiones (preserve life - “emotional/physical wreck”)

Question 40

Abortion in N.ireland (Fegan and Rebouche Critique)

Answer 40

‘still not clear position for abortion in cases of rape or feotal abnormality’ - as a result most travel to Britain for fee paying abortions

Question 41

Abortions in N.Ireland (travelling and cost critique)

Answer 41

Department of Health averaged 20 women a week seeking access to abortion at cost of £200-£2000

burden to women on low incomes, often leading them to borrow money from backstreet lenders or import pills risking prosecution under OAPA 1861

Question 42

Reform on women travelling for abortions (N.Ireland)

Answer 42

after legal action taken against DoH, Horgan questioned whether guidance itself aimed at serving to deter Drs in N.Ireland from carrying out abortions - opening paragraph of DoH guidance makes clear practitioners who unlawfully perform abortion will be liable to criminal persecution with maximum penalty of life imprisonment & secondary party same consequences.

since June 2017 women from N.Ireland can now travel for free NHS abortions through self referral.

Question 43

reluctance to give abortions: Northern Health & Social services board v F&G

Answer 43

pregnant 14 year old lived in children’s home, suspected of substance misuse and threatening to kill herself without abortion. - mother not seen since she was 6 opposed abortion, father maintained contact and felt abortion necessary. - HELD; abortion in best interests but no DR willing to carry it out because of mother’s opposition and uncertainty of law concerning abortion in N.Ireland. - girl traveled to Liverpool for abortion