The Current Legal Position Law Medical Essay

Published Date: 02 Nov 2017

Introduction:

The efforts to decriminalize abortion in England have a long history. However, can in fact abortion be legalized? Discussions over this matter usually lead to dead ends created by the very polarized views over the central issues which surround the debate. Making abortion legal is not enough, there is also a pressing need to fight and remove the obstacles that stand in the way of putting the law in practice. [1] The greatest obstacle in decriminalizing abortion lies on the assumption that the fetus is a human being from the moment of conception and therefore has a right to life. [2] This hypothesis always conflicts with the rights that women possess over their bodies. Therefore, the moral problem of abortion is unusual because the fetus is similar to no other human being and the relationship it has with the woman is unique, making it difficult to reach a solution. [3] Despite the liberalization of abortion law in England, there are still some concerns as the law does not permit abortion on request.

The aim of this essay is to deal with the current situation in England and try to address the different concepts that influence the law in an attempt to determine whether it would be possible for abortion to be completely removed from the criminal law. I will argue that the ideas over the abortion laws do not synchronize enough with the real needs of women and are rather influenced by the extreme ideological groups in the society. In doing so, criticism of the current law will be made as well as consideration of the ethical matters that are involved, especially the conflicting interests of mothers towards their fetuses.

The Law and Ethics:

The Current Legal Position:

In England, abortion is still a crime. Under s.58, 59 of the Offences Against the Person Act (OAPA) 1861 the unlawful and intentional procurement of a miscarriage in oneself or another is a criminal offence, excepting situations where termination is performed to preserve the life of the woman, as illustrated in R v Bourne [4] . Judge Macnaughten held that if the doctor believed on reasonable grounds that the continuation of the pregnancy will have mental or physical consequences on the woman he shall not be convicted as he is assumed to be operating in preserving her life. Even after Bourne, the attitudes of the doctors did not change and abortion rates did not increase as expected. The doctors continued to be hostile and continued to refuse abortions even in tragic cases such as pregnancy resulting from rape.

The Abortion Act 1967 tried to clarify the law and the doctors’ behaviour as well as prevent injuries from back street abortions. [5] S.1(1) of the Abortion Act provides that the pregnancy may be terminated if two doctors believe that the continuation of the pregnancy would expose the woman to a greater risk, of permanent physical or mental health injury, than if it were terminated and also if continuation involves a substantial risk that the child born would be severely handicapped. However, it is worth noting that the 1967 Act does not allow women to elect termination of an unwanted pregnancy if they cannot satisfy two doctors, even if their circumstances are fit under the Act. Following from that, the doctors hold no obligation, under s.4 (1), to perform an abortion if they object to such treatment. As a result, the fetus, under the law, is protected to a degree as its destruction is only allowed under certain circumstances.

Ethical conflicts - Fetal rights vs. Woman’s rights:

If everyone agreed that abortion was morally permissible the law would not have been required to criminalize such practice. [6] The debate over the abortion laws focuses in great part on the divided views over the status of the fetus. Those who perceive fetuses as potential persons (pro-life) are greatly concerned with abortion and support its protection and recognition as a human life with the same rights as any other human being of the same status. Their ideology holds that the fetus is a person from the time of conception and they will not set aside their opposition to abortion, but only in the case where the mother’s life is in great danger. On the other hand, the pro-choice group sees the fetus as just a fertilized egg. Therefore, for them, the woman should be able to make autonomous choices about what is to happen to her own body, upholding her right to self-determination. [7] 

If the pro-life positions are translated into laws they will result in a clear restriction of what might be someone’s right. On the other hand, if pro-choice is made law, it may offend the opposing group but it will not force anyone into abortion. Having in mind these so polarized positions is difficult to reach a balance or consensus over the status of the fetus and as a result the laws will always remain unsatisfactory for both views. [8] Consensual reform cannot be easily achieved if the aim of the law is to satisfy both opposing groups. Holding such stance the law is leaving aside the interests of the parties who suffer directly from the prohibitions imposed. The majority of the people who consider abortion do not belong to any of the two groups. Therefore, in order to avoid the suffering of the people the law should not take into account only one set of views. [9] The subjects of the abortion debate are not just fetuses but women as well who deserve a central place in these discussions. [10] 

The Abortion Act 1967 does not provide a clear picture of the unborn child’s status and thus demands for reform. [11] As ruled in Paton v BPAS "the fetus cannot, in English law, have a right of its own until it is born and has a separate existence from its mother." [12] However, the fact that prior to birth the fetus is dependent on its mother does not mean that we should assume that it does not have separate existence or no legal or moral significance. [13] On the other hand, interpreting Thompson’s violinist example, even if we assume that the fetus is a human being with equal rights to life as the rest of the human beings, we can still show that, in the majority of cases, the woman is under no moral obligation to complete the unwanted pregnancy. [14] She also goes further to explain that the right to life does not imply the right not to be killed, but a right not to be killed unjustly. Thus, if the fetus is not killed unjustly there is no violation to his right to life. Only if we can prove that abortion is unjust killing, we can claim a violation of the fetus’s right to life. [15] Additionally, Warren supports that the woman’s rights should prevail because she is a human being with full moral standing. [16] The pro-life supporters cannot deny that women have rights to life and self-determination, and as long as the fetal rights are not clearly established it is easier for them to accept a part of the pro-choice views.

Problems with the law:

Fears influencing the law:

Although, if we cannot reach consensus on fetal rights and if the law seems to be uncertain there will be no justification why the law will be restrictive towards abortion. [17] There is the fear that the pro-life views coerce women into certain behaviour and force them to take care of the potential life of the fetus. On the other side, the pro-choice views give rise to concerns that permitting the termination of a pregnancy at any stage might give rise to the acceptance of neonaticide at sometime in the future. [18] 

Those opposing to abortion reform pictured the woman as a creature selfish, reckless and irresponsible. More specifically Jill Knight, a conservative MP dismissed any ability of the women to make a serious decision regarding abortion, contending instead that women decide on whatever is convenient for them. On her view, "people should be helped to be responsible and not encouraged to be irresponsible". [19] However, supporters of such arguments seem to forget that the majority of decisions over termination of pregnancy do not involve any medical knowledge. [20] Sheldon suggests that it is time to build an image of the woman as rational, self-determining, responsible and mature. She should be accepted as the person best placed to consider her needs along with those of the fetus in order to decide on abortion dilemma. [21] 

Medicalisation of abortion

Sheldon argues that the main purpose of the Abortion Act was to control the women’s fertility instead to promote their reproductive autonomy. [22] The current legal approach gives the option to healthcare professionals to refuse to perform a legal abortion on the grounds of conscience, empowering them, instead of women, to determine whether or not to perform an abortion. This cannot be justified, as it puts the doctors in a place to decide for which they are unsuitable. [23] Moreover, the Act does not provide provisions to guide through the factors that one needs to consider in order to approve an abortion. [24] The latter can be observed from R v Smith [25] . The doctor was convicted of performing an abortion contrary to s.58 of OAPA. Dr Smith considered that the fact that the woman wanted to abort was a strong indication that continuing with the pregnancy would pose more risk to her mental or physical health than termination. The Court of Appeal concluded that his decision to perform the abortion was based on his personal sympathies and not on the requirements of the law. [26] On this issue, Simms argues that no one else but the woman herself is better qualified to make a decision to abort. Therefore, she supports that the next stage is for the law to hand this decision to the woman herself. [27] 

Nevertheless, others hold the view that even if the Act appears to be restrictive on paper, in practice can be interpreted more liberally by the doctors who are able to understand the burdens on a woman’s health when forced to carry a pregnancy to term and become a mother against her wishes. [28] But, as evidenced above, the Act does not provide for certain behaviour and not all doctors perform alike. As a result the Act can be considered unworkable. [29] A balanced law should be able to protect both the doctor’s right to refuse and the woman’s right to abort legally. [30] The law is viewed as "anachronistic" for requiring the certification of abortion from two doctors. [31] The decision to abort is not a medical one, it is influenced by the woman’s social, economic and personal circumstances and within the context she is located. [32] 

Conclusion:

Several decades have passed since the Act was put into force and the attitudes towards abortion have changed over time leaving the law behind. Thus far, as observed above, women are denied their right to terminate an unwanted pregnancy and instead they should rely on the discretion of the doctors making it clear that the medicalisation of abortion is to restrict the reproductive choices of women. As Jackson proposes, improvements to the law on abortion on granting women their autonomy and freedom to decide might mark the beginning of an important shift towards a medical decision-making based upon partnership rather than power. [33] 

For the supporters of women’s rights over their fertility, medicalisation of abortion was the greatest strength as well as the greatest weakness of the British legislation. [34] As Munday expressed, "Britain, which pioneered abortion legislation, now lags behind the rest of Europe, where abortion on request in the first three months of pregnancy is available in 13 countries". [35] A more woman centered approach needs to acknowledge and bring into the spotlight the reality of the woman’s choice as formed in her own environment and life. [36] A suitable proposed change would be to provide for abortion in request for the first trimester of pregnancy and from 15-24 weeks to be allowed if the doctor approves it.