Abortion in England and Wales: Legal Ubiquity or Time for Reform?
By Chidera Ofili
The Supreme Court’s overturning of Roe v Wade dismantled what has been a constitutionally protected right in the US for half a century. The symbolic impugnment of the status and humanity of those capable of pregnancy ensued by this decision is separate from the more measurable socio-economic consequences, such as access to abortion. That is not to say that the issue of access is not important, especially legal access i.e. the routes by which pregnant individuals are permitted, by law, to have an abortion. I will evaluate the issue of legal access to Abortion in England and Wales, against those who call for reform of the Abortion Act(AA) 1967 (whom I will generally refer to as the “reformists”) in light of the shift of judicial opinion across the Atlantic; arguing that abortion is essentially available on demand.
Surprising to some, the legal starting point of abortion is that it is a criminal offence. This is due to section 58 OAPA 1861 [1]and section 1 of the ILPA 1929[2], both effectively criminalising the termination of pregnancy. With the exception of Northern Ireland, these laws were actually never repealed which has led the likes of Sheldon to contend that the legal framework of abortion laws are “rooted in the punitive, conservative values of the mid- Victorian era[3]”. Sheldon and others have used this as a datum by which to argue for the “decriminalisation” of abortion.
However, it is fair to say that the effect of these draconian laws has been extensively diminished due to the defences available by the AA 1967. Firstly, one of four conditions laid out in Section 1(1) of the AA 1967 must be satisfied in order to meet its defences. These conditions focus mainly on medical opinion, specifically that an offence will not be committed if “two registered medical practitioners are of the opinion formed in good faith[4]”. This means that it is not necessary to show that a ground was made out in fact, but merely that the doctor, in good faith, believed it was. Thus, if the reformists’ overarching aim is the adequate access to abortion, without the fear of prosecution, this lack of stringency when assessing the lawfulness of an abortion is something that should be embraced, rather than needing reform.
Sheldon, however, is deeply sceptical about this deference to doctors, arguing that it is far from being a liberalising measure. AA 1967 was about putting in place a more rigorous and subtle system of medical control over individuals’ fertility[5]. To the contrary, the AA 1967, malleating the issue of abortion as a medical issue, can be described as a stroke of genius. Fox supports this suggestion, positing that the medicalisation of abortion has benefited pregnant individuals in that it has produced an obstacle for men seeking to challenge the legality of an abortion[6]The idea is that as abortion is an issue for medical experts to decide, rather than lay people, any outsider seeking to challenge abortion is unlikely to succeed. This could be very important especially in the context of cases where the father seeks an injunction to prevent an abortion. Again, if the reformists’ basis for their argument is the increase in adequate access to abortion, reforming the AA is not the way to go.
Alternatively, it seems likely that a reformist’s response to the contentions above would be: this excessive trust in the fulfilment of appropriate ethical and medical evaluation by doctors when assessing the lawfulness of an abortion is misguided. If anything, Montgomery [2017][7]has surely taught us to be wary of readily putting faith in a responsible body of medical opinion, much less just “two medical practitioners” according to Section 1(1) of the AA 1967. However, the most common ground for an abortion (98% in 2018)[8] is section 1(1)(C)-“that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated”,[9]and it is obvious why: carrying a pregnancy to term always carries health risks and, there is always less risk to the pregnant individual’s health in the case of a termination than continuation of the pregnancy. If this is true, therefore, under Section 1(1)(c), there are grounds for lawful abortion in the first 24 weeks of every pregnancy.
Another reformist’s objection could be section 4 of the Act, where it makes clear that if someone has a conscientious objection to abortion, they are not under a legal duty to participate in any treatment authorised by the Act[10]. Wilkinson expressed practical concerns over this provision, arguing that if all those who conscientiously objected to a controversial procedure were allowed to refuse to carry it out, the system would inevitably break down[11]. This is not necessarily the case. Lady Hale has made it abundantly clear in Greater Glasgow Health Board [2014] that section 4 does not apply to the performance of “ancillary, administrative and managerial tasks that might be associated with those acts”[12]So for instance, an NHS clinic receptionist who fundamentally opposes abortion cannot deny a patient the request to see a doctor. Similarly, the conscientious objection provision does not remove the duty on the doctor to advise by referring the pregnant woman to another practitioner willing to perform an abortion (as per Barr v Matthews [1999])[13].
It is important to note that the bone of contention here is the tenacity of the legal access to abortion in England and Wales. Indeed, the AA is not without flaws, but in practice, it is safe to argue that abortion is available on demand. Any concern reformists have about stigma can be addressed through better public education that could de-taboo the topic of abortion. Any concern about the wording of the Act or symbolic nature of the AA not giving individuals a right to abortion should be ignored. Surely, what is important is that, in practice, individuals are legally able to adequately access abortion and thus have a de facto right.
[1] Offences Against the Person Act, s 58.
[2] Infant Life (Preservation) Act 1929, s 1.
[3] Sally Sheldon, 'The Decriminalisation of Abortion: An Argument for
Modernisation' [2016] 36(2) Oxford Journal of Legal
Studies<http://dx.doi.org/10.1093/ojls/gqv026> accessed 8 November 2022, 334
[4] Abortion Act 1967, s 1(1)
[5] Sheldon (n 3) 345-346
[6] Marie Fox and Ellie Lee, Abortion Law and Politics Today (Palgrave Macmillan UK 1998) 200-230
[7] Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland) 2015] UKSC 11
[8] Department of health and social care, 'Abortion Statistics, England and Wales: 2018 Summary information from the abortion notification forms returned to the Chief Medical Officers of England and Wales' (Office of National Statistics, 2019)
<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/fil e/808556/Abortion_Statistics__England_and_Wales_2018__1_.pdf> accessed 8 November 2022
[9] Abortion Act 1967, s 1(1) (c)
[10] Abortion Act 1967, s 4
[11] Dominic Wilkinson, 'Conscientious Non-objection in Intensive Care' [2017] 26(2) Cambridge
Quarterly of Healthcare Ethics<http://dx.doi.org/10.1017/S0963180116000700> accessed 8 November 2022 132-142
[12] Greater Glasgow Health Board (Appellant) v Doogan and another (Respondents) (Scotland) [2014] UKSC 68
[13] Barr v Matthews (1999) 52 BMLR 217.
