The morality of abortion

There will never be consensus over whether abortion is morally permissible. One view, associated particularly with Roman Catholicism, is that personhood begins at conception [3]. If the fetus is a person, abortion is murder. If the fetus is a person, it makes no difference to the wrongness of killing it that it was conceived as a result of rape. Nor does its age make a difference, so on this view, termination at six weeks is morally equivalent to termination at 36 weeks. If an abortion is necessary in order to save the woman’s life, then, if the fetus has an equivalent right to life, it is not self‐evident that its life must be sacrificed in order to save hers.

The law is clear, however, that legal personhood is acquired only once a child has an existence independent of its mother, that is once it has been born. Of course, some might argue that birth is simply a matter of geography, and that a newborn baby is not an intrinsically different entity from a fetus immediately prior to birth [4]. But in legal terms, geography is central. While a fetus is inside the woman’s body, it cannot be considered a separate legal person.

A second approach to the morality of abortion instead emphasizes the physical invasiveness of pregnancy, and the degree of self‐sacrifice involved in compelling a woman to carry an unwanted pregnancy to term, and go through childbirth against her wishes. One of the most famous philosophical ‘thought experiments’ used to illustrate this view is Judith Jarvis Thomson’s 1971 article [5], in which she invites readers to imagine that they wake up attached to a famous, unconscious violinist, who needs to be plugged into their circulatory system for the next nine months. Thomson then asks: ‘Is it morally incumbent on you to accede to this situation? No doubt it would be very nice of you if you did, a great kindness. But do you have to accede to it?’ Although this sounds extraordinarily far‐fetched, Thomson’s point is to jolt readers into contemplating what it might be like to be compelled to use your body to support another human life for nine months.

A third ‘middle ground’ position on the morality of abortion would permit abortion subject to restrictions, such as time limits. According to this view, a fetus may not have legal personhood, but it is also ‘not nothing’ [6]. As legal philosopher Ronald Dworkin [7] has explained, this view on the morality of abortion is by far the most common: most people share a belief in the sanctity of human life, but at the same time they do not believe that the fetus has the same moral status as a person, otherwise it would be impossible to justify abortion where the woman is pregnant as a result of rape. Most people also believe that the respect accorded to the fetus increases as it matures towards birth. This is often described as the ‘gradualist approach’: many people believe that abortion should be available as of right in the first months of pregnancy, while not believing that it should be available as of right until birth.

Abortion and the law

To the surprise of many students, abortion is still a criminal offence in the UK. A Victorian statute, passed more than five decades before women had the right to vote, continues to apply today to the termination of pregnancy. Statutory defences have existed in England, Scotland and Wales for 50 years, but under sections 58 and 59 of the Offences Against the Person Act 1861, the maximum sentence for a woman who intentionally and unlawfully procures her own miscarriage continues to be life imprisonment, and anyone who assists her could be imprisoned for up to five years.

Before abortion was partially decriminalized in 1967, a test case in 1939 established that it could be lawful to carry out a termination of pregnancy if carrying the pregnancy to term might leave the woman ‘a mental wreck’. In R v Bourne [8], a distinguished obstetric surgeon, Aleck Bourne, was prosecuted for carrying out an abortion on a 14‐year‐old girl, who was pregnant following a violent rape. His defence was that the operation was not unlawful, because, in his opinion, the continuance of the pregnancy posed an extremely serious risk to the girl’s mental health. In his direction to the jury, Macnaghten J was clear that an abortion might be carried out lawfully not only where the pregnant woman was in imminent danger of death (as had always been the case), but also where the effect of carrying the pregnancy to term might be to ‘make the woman a physical or mental wreck’.

Following Aleck Bourne’s acquittal, safe ‘legal’ abortions were available in the UK to women who could afford them, and who could find doctors who were prepared to run the risk of imprisonment. Much more commonly, women with unwanted pregnancies relied on the services of illegal abortionists It is thought that there were probably around 100 000 illegal abortions each year before the Abortion Act came into force, and mortality rates were high. Abortion had become a public health issue and by the mid‐1960s there was broad public support for bringing it within the safety of medical control.

The Abortion Act 1967 provides that an abortion will be lawful in England, Scotland and Wales (the Act does not apply in Northern Ireland), and no offence will have been committed if the criteria laid out in the Act are met. These are that two doctors must be ‘of the opinion, formed in good faith’, that the woman’s circumstances satisfy one of the four statutory ‘grounds’ for abortion; that the abortion is carried out by a registered medical practitioner in an approved place; and that it is notified within seven days to the relevant Chief Medical Officer.

If a termination of pregnancy does not satisfy these criteria, a criminal offence will have been committed. In 2012, Sarah Catt bought abortion pills from an internet site which she took in order to terminate her own pregnancy, shortly before she was due to give birth. She was convicted under section 58 of the Offences Against the Person Act and initially sentenced to eight years in prison [9], reduced, on appeal, to three and a half years [10].

The most commonly invoked ground for abortion, often referred to as the ‘social ground’, is set out in section 1(1)(a) of the Abortion Act 1967. It requires two registered medical practitioners to be ‘of the opinion, formed in good faith’:

that the pregnancy has not exceeded its twenty fourth week and that the continuation 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.

In 2016, 97% of all abortions were authorized on the grounds that the pregnancy posed a risk to the pregnant woman’s own health, and 99.8% of these were authorized solely because of the risk to her mental health [1].

This ground is very easily satisfied, and not only because the mental well‐being of a woman who does not want to be pregnant will generally be promoted by allowing her to end her pregnancy. Through what is sometimes called the ‘statistical argument’, it could be argued that, because pregnancy and childbirth will almost always pose a greater risk to a woman’s physical health than termination, this ground is satisfied in virtually every pregnancy.

The other three grounds for abortion are that two doctors are ‘of the opinion, formed in good faith’ that: under section(1)(1)(b) the termination is necessary to prevent grave permanent injury to the pregnant woman; under section (1)(1)(c) continuing the pregnancy involves a risk to her life; or under section (1)(1)(d) ‘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’. None of these three grounds is subject to a time limit. In practice, however, terminations after 24 weeks are rare (fewer than 0.1%), and most are carried out because of the late detection of a grave fetal abnormality, such as anencephaly.

While the legalization of abortion is sometimes assumed to be part of the pattern of liberal law reforms that took place during the 1960s, it is important to remember that the 1967 Act does not, in any circumstances, give a pregnant woman the right to terminate her unwanted pregnancy. Even if a woman’s pregnancy resulted from an act of rape or incest, she does not have the legal right to terminate it (of course, in practice doctors will invariably find that the first statutory ground is satisfied in such cases).

Instead the statute gives doctors considerable discretion over the legality of abortion. Notice, for example, that the statute does not specify that the section 1(1) grounds have to actually be satisfied. An abortion’s legality depends solely upon whether two doctors have formed the opinion, in good faith, that that woman’s circumstances satisfy one of the statutory grounds. So, for example, the legality of the 1% of abortions carried out under s.1(1)(d) depends upon two doctors agreeing, in good faith, that a particular handicap is ‘serious’, and that the risk of it materializing is ‘substantial’. In deciding whether a fetus’s abnormality is sufficiently serious, the Royal College of Obstetricians and Gynaecologists has recommended that doctors take into account the probability that effective treatment will be available; the probable degree of self‐awareness and ability to communicate with others; the suffering that would be experienced; and the extent to which the person might be dependent upon others. There is, however, no definitive list of conditions which justify abortion, rather the test is simply whether two doctors have formed the opinion, in good faith, that there is a substantial risk that the child would be seriously handicapped.

The question of what might count as a serious handicap was raised by Joanna Jepson in 2003, following her discovery that an abortion had been carried out on a fetus with a cleft palate after 24 weeks [11]. Following her complaint, West Mercia police launched an investigation, but they decided not to prosecute the doctors who had signed the form. Ms Jepson sought and was granted leave to apply for judicial review of this decision, on the grounds that the case raised an issue of public importance, but Jackson J admitted that she would face substantial evidential and legal hurdles at the full hearing. Before this could take place, West Mercia police conceded that their initial investigation may not have been sufficiently thorough, and the case was reopened under a different team of officers. The case was then referred to the Crown Prosecution Service, which decided against prosecution because, as the Chief Crown Prosecutor for West Mercia explained [12]:

both doctors concluded that there was a substantial risk of abnormalities that would amount to the child being seriously handicapped. The evidence shows that these two doctors did form this opinion and formed it in good faith.

An outdated statute?

There are three ways in which the Abortion Act 1967 is a poor fit with modern medical practice. First, to be lawful, an abortion must be carried out by a registered medical practitioner. This restriction made sense in 1967 when all abortions were surgical, but 62% of abortions are now medical and simply involve taking pills [1]. There is no clinical need for the pill to be provided by a doctor, and indeed nurse‐led abortion services are both clinically and cost‐effective. In practice, the courts have interpreted this provision in a way that facilitates nurses’ involvement in medical abortions, provided that the nurse continues to be supervised by a doctor. In Royal College of Nursing v Department of Health and Social Security [13], the House of Lords decided that nurses could actively participate in the termination of pregnancy, provided that a registered medical practitioner is supervising the procedure.

Second, except in an emergency, ‘any treatment for the termination of pregnancy’ must be carried out in an NHS hospital, or in a place approved for the purposes of the Act by the Secretary of State (section 1(3)). Around two‐thirds (68%) of NHS‐funded terminations take place in independent clinics run by charities including Marie Stopes and the British Pregnancy Advisory Service (BPAS). Pregnancies of 24 weeks or more can only be terminated in NHS hospitals.

Once again, this restriction may be incompatible with best practice in the provision of early medical abortions. If taking mifepristone and misoprostol is ‘treatment for the termination of pregnancy’, then both pills must be taken in an NHS hospital or an approved place, despite the fact that it would be safe to take them in a GP’s surgery, or even at home. It might be argued that it would be preferable for women to be able to take the second drug, misoprostol, at home, since this is what will usually trigger her miscarriage. Instead, in addition to the inconvenience of having to attend the clinic on two separate occasions, which may be particularly difficult for women with young children or those who live in remote rural areas, there is also a risk that the woman might miscarry while she is on her way home. There is considerable evidence that home medical abortion would be safe, and that most women would prefer it [14].

In 2012, BPAS sought, unsuccessfully, a declaration that it would be lawful to prescribe misoprostol when the woman attended the clinic to take the mifepristone, so that she could take the misoprostol home with her, and subsequently take it at home. In British Pregnancy Advisory Service (BPAS) v Secretary of State for Health [15], Supperstone J held that the ‘treatment’, which had to take place in an approved place, was the taking of the drug, not its prescription. The irony of this is that a provision in the legislation which was intended to protect women’s safety – by ensuring that surgical abortions only take place in properly equipped and staffed premises – in fact, in the case of early medical abortions, could make them less safe. By requiring the woman to take the second pill in a clinic, before allowing her to return home, there is a risk that she might miscarry in a public place.

Third, the provision of new birth control methods that might involve a woman taking a contraceptive pill only once her period is late, or once a month, is blocked by the Abortion Act 1967. Any method of birth control that works after implantation would involve ‘procuring a miscarriage’, and hence could avoid being a criminal offence only if all of the criteria in the Abortion Act are satisfied. Two doctors would have to agree that the woman’s circumstances satisfy one of the statutory grounds for abortion; the woman would have to take the pill in an approved clinic or NHS hospital, while being supervised by a doctor. This would make post‐implantation methods of birth control both inconvenient and expensive. As Sally Sheldon [16] explains:

That archaic legislation, which has remained largely unconsidered for one and a half centuries, is drafted so as to block the development and use of safe, effective forms of fertility control that operate so soon after intercourse provides a compelling argument for a fundamental review of, at least, this aspect of its operation.

Sex‐selective terminations

In 2012, undercover reporters from the Daily Telegraph filmed abortion providers allegedly agreeing to carry out terminations on the grounds of fetal sex. The reaction from the then Secretary of State for Health, Andrew Lansley, and the Chief Medical Officer, Sally Davies, was to declare that such abortions are unlawful. In 2014, the Department of Health issued Guidance in Relation to Requirements of the Abortion Act [17], in order ‘to provide support for doctors by setting out how the law is interpreted by the Department of Health’, according to which: ‘Abortion on the grounds of gender alone is illegal. Gender is not itself a lawful ground under the Abortion Act’.

The assumption behind claims that abortion on the grounds of sex is illegal in the UK is that because ‘fetal sex’ does not appear as one of the grounds for abortion in section 1(1) of the Abortion Act 1967, abortion on the grounds of fetal sex must be unlawful. But this is to misunderstand how the Abortion Act works. It does not contain a list of legitimate reasons for abortion. As we have seen, rape does not appear as a ground for abortion in section 1(1), but this does not mean that abortion on the grounds of rape is unlawful. Instead, the Act gives two doctors considerable discretion to determine whether a woman’s health would be better served by termination than by carrying the pregnancy to term.

In 2015, Fiona Bruce MP attempted to put the supposed illegality of sex‐selective abortions beyond doubt through an amendment to the Serious Crime Bill. If passed, her amendment would have read: ‘Nothing in section 1 of the Abortion Act 1967 is to be interpreted as allowing a pregnancy to be terminated on the grounds of the sex of the unborn child.’ In the event, her amendment was defeated, not because there was support for sex‐selective abortion in parliament, but because there were concerns that this provision might prevent women from terminating pregnancies where the fetus was suffering from a sex‐linked disorder. Anxieties were also expressed about the use of the term ‘unborn child’ in legislation. Instead, an alternative amendment was passed which required research to be carried out into the incidence of sex‐selective abortion in the UK. The Department of Health duly carried out this research and published its report [18] later in 2015. Its conclusion was that ‘we have found no substantiated concerns of gender abortions occurring in England, Wales and Scotland’.

Termination of pregnancy in children and adults who lack capacity

Once children reach the age of 16, their consent to medical treatment is as valid as it would be if they were adults [19]. If a girl is under 16, but Gillick‐competent – that is, she is mature enough to make the decision for herself – it is clear that she can give a valid consent to abortion, and that the termination can take place without her parents’ consent or knowledge [20].

If a girl is not yet Gillick‐competent, decisions about her medical treatment would normally be taken by her parents, subject to the possibility of being overridden by the courts if the parents’ decision was not in her best interests. It is, however, hard to imagine circumstances in which it could be in the best interests of a girl who lacks capacity to terminate her pregnancy against her wishes, or, likewise, to force her to carry an unwanted pregnancy to term. Certainly this was the view of the President of the Family Division, Sir James Munby, in Re X (A Child) (Capacity to Consent to Termination) [21], a case involving a pregnant 13‐year‐old girl who was not yet Gillick‐competent:

I find it hard to conceive of any case where such a drastic form of order – such an immensely invasive procedure – could be appropriate in the case of a mother [sic] who does not want a termination, unless there was powerful evidence that allowing the pregnancy to continue would put the mother’s life or long‐term health at very grave risk. Conversely, it would be a very strong thing indeed, if the mother wants a termination, to require her to continue with an unwanted pregnancy.

So even if a girl lacks the capacity to make a decision about whether to have an abortion, her views will carry considerable weight.

For adults who lack capacity, the Mental Capacity Act 2005 applies, and the first question for the doctor will be whether a termination is in the patient’s best interests. The Mental Capacity Act is clear that when judging what is a patient’s best interests, the doctor should not just consider her clinical best interests, but also her ‘past and present wishes and feelings’ and ‘the beliefs and values that would be likely to influence [her] decision if [she] had capacity’ [22]. In An NHS Trust v CS [23], a pregnant woman who was in a violent relationship had told her sister that she did not want to ‘keep the baby’. Following a further violent assault, as a result of which she now lacked capacity, Baker J decided that a termination would be in her best interests, and not only because this would promote her physical recovery: ‘I consider that the clear and unambiguous views that she expressed prior to the injury are the crucial factors in this case’. Of course, deciding that a termination would be in the patient’s best interests is not the end of the matter, and two doctors must additionally be of the opinion that the woman’s circumstances fit within one of the statutory grounds for abortion, and the termination must be carried out by a registered medical practitioner, in an approved place.