#10038 - Abortion - Medical Law and Ethics

ABORTION

LAW

1. Crime

• s 58 OAPA 1861 – makes abortion a crime.

• s.59 – crime to supply drugs, substances or instruments for unlawful abortion

• Thus, there is no right to abortion in theory. But there are statutory defences which, in effect, give women a right to an abortion, depending on how far into the pregnancy the termination is requested:

2. Abortion Act 1967

1. s.1(1)(a) Continuance of the pregnancy would involve risk to physical or mental health of the pregnant woman or any existing children of her family

• pregnancies under 24 weeks – all others have no time limit

• 97% in s.1(1)(a) (Department of Health report 2012)

• Herring (2011)- this ground is no more than saying woman requests an abortion

• RCN v DHSS – Lord Denning said in effect there is abortion ‘on demand’ in England and Wales

2. s.1(1)(b) Grave Permanent Injury to the physical or mental health of the pregnant woman

3. s.1(1)(c) Risk to Life of pregnant woman

• has to be an actual belief in death, doesn’t have to be substantial

4. s.1(1)(d) substantial risk that if the child were born it would suffer from physical or mental abnormalities

• substantial risk of serious disability required

5. s.1(4) emergency abortions

• don’t require approval of 2 doctors where termination required to save life or prevent grave permanent injury

6. s. 4 Conscientious Objection

• doctor not under a legal duty to participate unless patient’s life is in danger

3. Contraceptive

• R(Smeaton) – line between contraception and abortion is before and after implantation, respectively (as opposed to pre + post conception)

4. Right to Abortion

• McKay v Essex – whilst no right to abortion, in this case Griffiths LJ said woman entitled to advice from doctor about ‘her right to have an abortion’ – this was in 1982

5. Conditions

• registered medical practitioner does or supervises the procedure

• NHS hospital or approved place

• 2 doctors agree in good faith

6. Doctors don’t have to be correct

• Jepson v CC of West Mercia Police – as long as doctors acting in good faith it’s valid

• Paton v BPAS – George Baker P said it would be a ‘bold and brave judge’ who interfered with a doctor’s discretion acting under AA 1967

7. Distortion of drafter

• David Steel, back-bench MP who introduced the Bill, never intended it to be used in the way that it has

GENERAL POINTS

1. 2012 – 185,122 abortions (Department of Health)

2. 36% of women undergoing abortions had a previous one

3. Jackson (2002) – abortion is ‘a simple, routine and frequently performed operation’

4. Paton v BPAS – George Baker P – it would be a ‘foolish judge’ who declares abortion unlawful unless clear bad faith

PRO-CHOICE ARGUMENTS

1. UNDERGROUND

• Jagger (2009) – criminilasing abortion would only send it underground. For example, Latin America has the strictest abortion laws and also the highest abortion rates,

• Cases-Becerra (1997) - Chile where it’s estimated that 300,000 illegal abortions annually

• Alan Guttmacher Institute (2011) - estimates that 47,000 women die annually from unsafe illegal abortions

2. JUDITH JARVIS THOMPSON (1971) woman

• Jarvis Thompson argues in favour of a woman’s right to choose by proposing the analogy whereby a violinist’s circulatory system is plugged into someone, against their wishes. Thompson suggests that it would be wrong to force the person to have to endure this for 9 months, despite the fact the violinist may die as a result.

• Right to life doesn’t entail a right to use another person’s body for continued sustenance

• Legal Status of Foetus Nullified

• Manninen (2010) – argues that it is becoming increasingly necessary to make the case of saying that the permissibility of abortion does not hinge on the legal status of the foetus, but rather, about stressing that no human being has the moral right to use another human being’s body against the latter’s will. So Thompson argument is good for this

• Kant

• Manninen – forcing a woman to endure pregnancy means using her as a means to save the life of a foetus, which compromises her autonomy and violates the Kantian ideal that people are not a means to an end

• Responsibility

1. Marquis (2010) – argues that we have a moral obligation to another human being when we are responsible for their plight, relying on the analogy of a car accident we caused, we have to pay for their medical expenses – hinges on responsibility

2. Beckwith – but parents, unlike strangers, do owe a duty to act responsibly in order to protect child

3. Tooley (1983) – Thompson’s analogy only like rape, as woman consented to pregnancy otherwise by having sex

4. Boonin (2002) – suggests woman is not consenting to pregnancy by consenting to sex though – Manninen (2010) refers to this argument as the ‘responsibility objection’ and says that having sex is a human need

5. Lee – two people engage in the activity but only woman bears the responsibility

6. Scott – even if we ‘ought’ to help person, this does not mean the law can force us to

3. INTENTION

• Finnis (1973) – relies on Thompson’s analogy to highlight how the person doesn’t intend to kill violinist – doctrine of double effect link -

• Herring – highlights uncertainty as to whether abortion is a +ve act or -ve

4. BODILY INTEGRITY

• Parkinson v St James (Lady Hale) – emphasised how pregnancy has a huge impact on women – thus continuing it brings a whole host of infringements to autonomy

• Jackson (2003) – given this impact, it should be a decision that only a woman can make

5. HEALTH RISKS

• A pregnancy can still present a risk to women. Indeed, in Ireland, where abortion has typically not been permissible, The Protection of Life During Pregnancy Act was introduced July 2013 to allow abortion where there is a threat to the life of the mother, which was a response to the uncertainty on the law on this which an inquest said had led to the death of a woman who was refused an abortion in Galway, in October 2012.

6. EQUALITY

• Mackinnon (1987) – ‘abortion promises to women sex with men on the same reproductive terms as men have sex with women’

• ME: inconsistency that there is an attempt to create equality in terms of how the baby is conceived, but there is no such consistency after the conception

PRO-LIFE ARGUMENTS

1. RELIGION

• Most religions are vehemently opposed

• Pope Francis in January 2014 called it a ‘horrific’ symptom of a ‘throwaway culture’ that placed too little value on human life

• (19/6/2014) reports that 25 UK schools are relying on the Tennessee-based ‘Accelerated Christian Education’ which opposes abortion on religious grounds

2. MURDER

• Marquis (1989) – mother who deprives the foetus of a valuable future is as wrong as depriving an adult of their future

3. LEGAL STATUS OF THE FOETUS

BRIDGING THE VIEWS

1. Kaposy (2012) – highlights philosophical stalemate between pro-choice and pro-life camps.

2. Hursthouse (1987) - fear of compromising slightly could open floodgates only enforces ideological entrenchment

3. Ronald Dworkin (1993)

• argues that there is less of an ideological cleavage between the pro-life and pro-choice camps than might at first appear, as both sides exaggerate their position.

• He suggests that the two positions both have at their root considerations about investments in life:

1. The pro-choice camp value human investment (ie. effort put into life by the person and others), and suggest that it is better for life to end than be doomed to frustration.

2. Whereas, the pro-life camp value natural investment in life (ie. the creative power of God or evolution) and believe that a premature death frustrates that investment.

• This illustrates how the two sides can be bridged

• Some pro-choice people opposed to particularly late abortions or abortions based on sex – highlights how there is some crossover

SCOPE TO PREVENT ABORTION

1. Paton v BPAS – husband cannot secure an injunction against a woman having an abortion. In fact:

2. C v S – father doesn’t even have a right to be informed abortion was taking place

3. Legality – whether it’s a criminal offence is a decision for the DPP

4. CONSCIENTIOUS OBJECTION

• BMA + GMC (2008) – doctor doesn’t have to participate in ‘morally sensitive procedures’

• Janaway v Salford – only allowed to refuse to participate in the treatment itself, not in admin;

• McKay v Essex – or about giving advice

• Wicclair (2009) – critical of conscientious objection as law doesn’t allow doc to act in accordance with conscience, why allowed to omit?

MORALLY NEUTRAL STANCE

1. Kaposy (2012) – government should adopt a ‘morally neutral’ stance of non-interference, whereby abortion is permitted.

2. ME: no stance is a stance

3. Boonin (2002) –...