In a thoughtful piece in the Guardian, MP Sarah Wollaston calls for a review of the Abortion Act. She focuses on the decision by the General Medical Council (GMC) not to pursue Fitness to Practice proceedings against 67 doctors who had pre-signed, without assessing the women concerned, the forms used to authorise abortion. She concludes:
“… it makes no sense to prolong outdated and paternalistic attitudes that only doctors can make judgments about whether the grounds for the Abortion Act are satisfied. It makes even less sense to leave the situation as it is now with doubts about the legal obligation for a doctor to have seen the woman to whom form HSA1 refers; clear guidance must be issued as to whether doctors may sign based on evidence from clinical nurse specialists. A change to allow clinicians other than doctors to certify directly would, however, require an amendment to the Abortion Act.
In my view, the act is no longer fit for purpose. This would be a good time for a wider review of the ethical arguments and public attitudes, and to establish a legal framework fit for the 21st century.”
Wollaston’s article is not a blithely uncritical plea for unrestricted abortion. Indeed she criticizes the GMC for its failure to act in the face of apparently clear breaches of the law. Nor is her objection merely the (powerful) constitutional one – that a statutory professional regulator should not disapply the law of the land for professionals under its jurisdiction. She acknowledges that some regulation is necessary, and points out that failure to ensure some medical oversight of abortion might encourage (for instance), the practice of abortion on the grounds of fetal gender. Nonetheless, she says, the case illustrates the need for a review of the law. Her argument seems to be along the following lines: “(1) A lot of doctors don’t comply with the law. (2) That indicates that the people who know most about the issues are opposed to the law in its current form and/or that the doctors are reflecting the zeitgeist, which similarly is opposed to the law in its current form. (3) This in itself warrants a review.”
This is a curious argument. If burglary is rife, that would seem to be a good reason to pursue and prosecute burglars more energetically, and arguably to sentence convicted burglars more savagely. And to suggest that the unlawful administrative practices of hard-pressed clinicians amount to or evidence serious moral deliberation is also strange, as is the suggestion that doctors’ own views or practices say anything much about the demographically and democratically relevant stakeholders.
I’m not at all opposed to a review of the Abortion 1967. Indeed in this blog post I welcomed Fiona Bruce’s re-examination of some of its provisions. But nothing that has occurred in recent years justifies a fundamental re-design of its architecture.
Here is section 1:
“(1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith—
(a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or
(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or
(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or
(d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.”
The broad outline thus is:
1. This is a decriminalizing statute. An abortion will amount to a criminal offence (under s 58 of the Offences Against the Person Act 1861) unless there is certification by two registered practitioners that one of the criteria (a) – (d) is satisfied.
2. The certification has to be reached “in good faith”. One cannot possibly come to a conclusion about the satisfaction of (a), (b), (c) or (d) in the case of X unless one has seen X.
The decriminalizing nature of the statute is important and legally adroit. It very obviously has not inhibited doctors from performing abortions. The fact that a criminal statute lies behind the 1967 statute has had no chilling effect. Its nature is an acknowledgement that abortion which does not fall into one of the four statutory categories is likely to be frowned on by society. Is that really so controversial? Go through the categories, ignoring, for the moment, the references to stages of gestation. The only real argument against the adequacy of these categories is the unnuanced argument based on the absolute rule of maternal autonomy: “It’s my uterus, and there’s nothing else to discuss.”
But surely there is more to discuss? Nothing in life is that simple. And it is partly because there obviously is more to discuss that the statute insists that discussion occurs – with medical practitioners who can help to articulate some of the voices that should participate. Those voices will include, of course, the voice of the woman’s own best interests. It’s hardly offensively paternalistic to say that patients should be warned about the complications of a procedure. Outside the abortion clinic we say that that honours autonomy, rather than truncating it.
So: by all means examine the way that the 1967 Act should be redrafted in the light of scientific understanding and medical advance. But don’t blame the Act because it has been badly policed by those responsible for its enforcement. Sort out the police instead.