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Catholic Medical Quarterly Volume 68(1) February 2018

Decriminalisation of abortion.

Dr Philip Howard MA GDL LLM MA MD FRCP

In order to understand this issue it is important to know what an abortion is and what it means for it to be decriminalised.

Ethical standpoint

The debate is usually confused by a failure to distinguish between the termination of a pregnancy (which refers to the physiological state of the woman) and an abortion, which refers to the killing of an embryo or foetus. This is what philosophers call a “category” error where the subject of the discussion is placed in the wrong framework or category through confusion over definitions. The difficulty is compounded by when pregnancy begins. From a moral and biological standpoint pregnancy does in fact begin with conception when a new and distinct human being is formed. To add to the confusion, the beginning of life in law remains a mystery and is left to the discretion of the Jurisdiction of the individual European Member States.[1] What is even more remarkable is that the Secretary of State for Health has discretion, under secondary legislation, to determine the beginning of life for the purposes of embryo experimentation and human “ad-mixed embryos” and other situations regarding in vitro fertilisation that might arise.[2] In common law and prior to implantation of the embryo, abortion is deemed to be impossible. Where there is no “carriage” there can be “no miscarriage”. However, a woman may be a “mother” by virtue of having within her (womb) an embryo or gametes that have given rise to an embryo, even before implantation. The old adage that “at least we know who the mother is” remains true... but only up to a point.

The presence of a developing embryo begins a biologically fascinating “cross-talk” with the mother as the embryo signals its presence through various chemical mediators. In this way the embryo signals its presence to the mother whose uterine environment adapts to permit implantation and gestation to occur.

Ethically, abortion means the deliberate intention to directly end a pregnancy and destroy the life of an embryo or foetus. Intention has both a subjective aspect i.e. in relation to what the person wants or wishes to do and an objective aspect, which is determined by the actual circumstances of the case. I might intend to shoot a man behind a curtain (subjective intention) but fail because what I thought was the man was merely a shadow (objective test). I am therefore guilty of attempted murder even though the attempt was bound to fail.

Principle of Double Effect.

Abortions are defined as indirect where they arise as a secondary and unintended consequence of another necessary action according to the Principle of Double Effect. This has five aspects. There must be a necessity to act. The act must of itself be either good or morally neutral. There must be a sufficient margin between the expected good effect and secondary undesired consequences. The good effect must not be obtained through an inherently bad action. Finally the bad effect(s) must not be directly willed or intended.

In the case of Ectopic Pregnancy, surgery to a fallopian tube (salphingectomy) removes the imminent risk of haemorrhage. The purpose here is to secure the safety of the woman by removing an immediate source of potential haemorrhage. As a secondary consequence of this the foetus is deprived of the blood supply to that part of the fallopian tube and as a consequence dies. Of course, if it was possible to implant the embryo within the uterine cavity this ought to be done. If this was possible, it would be a viable option which might save the life of the foetus in addition to that of the mother. Surgery for ectopic pregnancy is necessary to save the life of the mother and the surgeon would be failing in his duty if he did not take the necessary action. On the other hand, surgery for ectopic pregnancy would not justify the removal of the fallopian tube alone (salphingectomy) if reimplantation was possible as this would then become a moral obligation to save the life of foetus. The use of abortifacient drugs following conception but prior to implantation is morally wrong. This is because they are a direct attack on the embryo. Confusion arises because according to the law, and many textbooks, abortion can only take place after implantation. This was established in this country by Mr Justice Munby in the judicial review by SPUC.

Abortion from a legal standpoint

Abortion remains a statutory crime in England and Wales and a common law crime in Scotland.

Offences Against the Person Act 1861

Under the Infant Life (Preservation) Act 1929 it is an offence for a pregnant woman to unlawfully intend and attempt to procure her own miscarriage. It is a crime for another person to unlawfully attempt to procure the miscarriage of any woman whether or not she is with child by the administration of drugs or the use of instruments. The supply or procurement of drugs or instruments to procure an abortion is also a crime, though with a lesser sentence of up to 5 years imprisonment. A lot hinges around the use of what constitutes “unlawful” procurement as defined in common law.

The Infant Life (Preservation) Act 1929

The Infant Life (Preservation) Act 1929 was described in the introduction as “an Act to amend the law with regard to the destruction of children at or before birth.” This reference is to craniotomy where the skull of the child was crushed in the case of obstructed labour in order to proceed to vaginal delivery. The 1929 Act concerns the crime of child destruction in which there is an intentional act to destroy the life of a child who is capable of being born alive, unless it was done with the intention of preserving the life of the mother. The child was deemed, prima facie, to be capable of being born alive after 28 weeks of gestation.

Rex v Bourne 1938

The meaning of the term unlawful procurement of abortion was raised in Rex v Bourne 1938 [3] where it was held not to be unlawful to procure abortion following rape or when the life of the pregnant woman was in danger.

Abortion Act 1967

The Abortion Act 1967 provided the circumstances where abortion could lawfully be carried out up to 28 weeks of gestation after which there is a prima facie presumption of viability and would not be a crime under the Offences Against the Persons Act 1861, Infant Life (Preservation) Act 1929 or common law. Except in an emergency, the procurement of abortion requires two doctors acting in “good faith” (undefined) to certify that if the unborn had not reached viability they were of the opinion that the risks to the health of the mother or to her existing children were greater than if the child was born alive or if there was a serious threat to the life or health of the pregnant woman. This considerably extended the grounds for abortion and effectively allowed abortion on demand for social reasons. Now most abortions (97-98%) are performed on the grounds that continuance of the pregnancy is thought to entail a greater risk to the mental health of the mother than having an abortion. However, there is very considerable doubt that pregnancy adversely impacts on mental health.

The Morning After Pill (‘Emergency contraception’)

The use of Emergency Hormonal Contraception (‘Morning After Pill’) was not regarded as an abortion in the judicial Review brought forward by SPUC. [4,5] Mr Justice Munby stated that there can be no miscarriage unless there is carriage following implantation of the foetus. “Whatever may or not have been meant in 1861 the word "miscarriage" today means the termination of an established pregnancy, and there is no established pregnancy prior to implantation. There is no miscarriage if a fertilised egg is lost prior to implantation. Current medical understanding of what is meant by "miscarriage" excludes results brought about by the pill, the mini-pill or the morning-after pill. That is also, I should add, the current understanding of the word "miscarriage" when used by lay people in its popular sense". Therefore, although the term “carriage” was not ever defined and indeed the word “abortion” was not even used in the OAPA (1861) the term “abortion” has come to mean the procurement of miscarriage after implantation. Indeed Mr Justice Munby went on to explain that “There would in my judgment be something very seriously wrong, indeed grievously wrong with our system - by which I mean not just our legal system but the entire system by which our policy is governed - if a judge in 2002 were to be compelled by a statute 141 years old to hold that what thousands, hundreds of thousands, indeed millions, of ordinary honest, decent, law abiding citizens have been doing day in day out for so many years is and always has been criminal. I am glad to be spared so unattractive a duty. The social case put by the FPA, and supported in all its particulars by the Secretary of State, remains wholly unanswered by SPUC. Preferring to concentrate, as it is entitled to, upon narrow legal issues, SPUC has not attempted to refute FPA's case. I strongly suspect that it could not, even if it wished to." To add to the confusion in the light of the above “abortion” or more precisely, the procurement of “miscarriage” occurs whether or not the woman is actually pregnant. The logic of the judicial approach would seem to be that statutes that are 141 or more years old need not necessarily apply, the meaning of words is what they currently are meant to mean, the views of thousands or even millions of individuals are paramount and that the social views of organisations, such as FPA, and the Secretary of State, is inherently unanswerable. In such cases we should not concentrate, much less rely, on “narrow legal issues.” The law is decided by the practice of “honest, decent, law abiding citizens” and what they do on a day to day business. The view that pregnancy does not occur until implantation was refuted by the pioneer of IVF, Prof Robert Edwards, who wrote in1980: ” Pregnancy surely begins at fertilisation... And discussions on the merits of the I.U.D.s or “morning after” pill will be best served by accepting their role as early abortifacients.”[6] Notwithstanding this judgment in 2002, Mr Justice Hamilton in the High Court in Northern Ireland where the Abortion Act 1967 does not apply but the OAPA 1861 still applies stated that section 58 protects the “foetus in the womb” and that the “right to life of the foetus, the unborn, is afforded statutory protection from the date of its conception.” [7]

The Human Embryology and Fertilisation Act 1990.

Following the passage of the Human Embryology and Fertilisation Act 1990, which reduced the statutory limit of viability from 28 to 24 weeks, abortion was also permitted on the grounds of significant foetal disability up to the point of natural delivery i.e. beyond the time of viability. The HEFA 1990 therefore brought in foeticide. It also legitimised in vitro fertilisation and paved the way to embryo experimentation. Foeticide is where the unborn child is killed in utero by injection under ultrasound guidance so that it can then be “delivered” as a stillborn. Foeticide is now legal for congenital disability up to the time of birth. If the disabled child was born alive, then it could not be killed as this would be murder. Clearly, this is only a short step from neonatal euthanasia. The nurses in the Glasgow Midwives case were unprepared to participate in foeticide and abortion on their obstetrical wards.

In the year up to March 2016, according to police recorded crime data, there were seven cases of “intentional destruction of an unborn child “and seven of “procuring illegal abortion.”

Further legal considerations

Where abortion provision is lawful it is subject to further regulations and standards [8] by the Care Quality Commission.[9]

The Abortion Act 1967 does not apply to Northern Ireland except in the case of fatal foetal abnormality and sexual crime (rape and incest). Judicial Proceedings were brought by the Human Rights Commission that the law was too restrictive in contravention of Article 8 of the European Convention on Human Rights - the right to respect for private and family life. The outcome was that it was the responsibility of the Northern Ireland Assembly to amend the law or not.

The decriminalisation of Abortion.

In February 2017 the BMA published a discussion paper on the decriminalisation of Abortion in preparation for the debates as to whether the BMA should support decriminalisation at the Annual Representative Meeting in June 2017.

The decriminalisation of abortion would mean that it is no longer a criminal offence. It would remain a medical or surgical procedure provided essentially for social reasons. The implications of full decriminalisation to birth would be considerable and would lead to an increase in abortions.

Use and supply of abortifacient drugs

It would no longer be an offence either for the woman herself or any other person to procure an abortion. In January 2017 in Belfast a woman who had bought abortifacients for her daughter faced prosecution, subject to judicial review. “Woman who bought abortion pills for daughter can challenge prosecution”.[10] In another case a man procured abortifacients for his wife who was 16-17 weeks pregnant with a view to procuring a termination.[11] When the woman discovered the intention she left her husband and had the child. Similarly there have been cases involving the self-administration [12] and supply to others of abortifacients. [13] In 2012 a woman induced her own miscarriage close to term with the use of Misoprostol after 24 weeks and when natural delivery was imminent. It was described as “a cold calculated decision that you took for your own convenience and in your own self interest alone.” According to the judge, she could have been charged with abortion or the crime of child destruction. The judge commented in his sentencing that “There is no mitigation available by reference to the Abortion Act, whatever view one takes of its provisions which are, wrongly, liberally construed in practice so as to make abortion available essentially on demand prior to 24 weeks with the approval of registered medical practitioners. What you have done is to rob an apparently healthy child en ventre sa mere, vulnerable and defenceless, of the life which he was about to commence.” [14]

The use of abortifacient drugs would be permissible. These are already widely available on the Internet and other sources. It would no longer be an offence for a husband or partner to procure an abortion surreptitiously, although the administration of abortifacients itself would be an assault on the woman, though not a criminal offence involving the pregnancy.

The General Pharmaceutical Council had proposed a change to the right of Pharmacists to conscientious objection with respect to the provision of abortifacients. There was a public consultation in 2017 to remove the right to refuse to supply abortifacients and a duty to refer in favour of “patient centred care.” In the event the right of conscientious objection of Pharmacists was not removed in the updated Guidance. [15] Mr Duncan Rudkin, CEO, said ““This guidance is intended to reflect the broad range of situations when a pharmacy professional’s religion, personal values or beliefs might impact on their willingness to provide certain services. It will support pharmacy professionals to make good decisions and provide person-centred care, within the legal framework.” The Guidance itself stipulates “Employers must also keep to the relevant employment, human rights and equalities law, and must not discriminate against pharmacy professionals because of their stated or perceived personal values or beliefs, including religion.” In the submission of the Catholic Medical Association (20.03.17) we stated that “Freedom of conscience is essential for the freedom of every human being and should be recognised in professional practice and safeguarded by law. No authority has the right to interfere with a person's conscience. Conscience bears witness to the unique importance and freedom of the individual and as such is inviolable.... A necessary precondition of all ethical clinical practice is that the practitioner acts with integrity according to objective standards.... Pharmacists must be able to maintain their integrity and consciences and to decline to participate in care that they reasonably believe to be harmful to the patient or to others.”

 The decriminalisation of abortion is likely to remove the right of conscientious objection as it would become a social rather than a medical issue except where there was a claim for the misuse or supply of abortifacients in clinical negligence.

Assault on pregnant women

The crime of child destruction arose because of the need identified by Lord Atkin to fill a legal lacuna.”[16]
“The gap is that, whereas the mother of a child who kills it after it has a separate existence is guilty of what was the crime of murder and is now the lesser offence of infanticide, yet, if she kills the child in the actual course of delivery or within such a short time afterwards that it has not had and cannot be proved to have had a separate existence, it is not an offence.”.

Assault on a pregnant woman may induce a miscarriage, however it would not constitute procurement of an abortion if this was decriminalised. However the crime of manslaughter or even attempted murder would persist if the child was born alive and subsequently died. Therefore, a more severe assault that prevented a live birth would not constitute abortion and might obviate the potential for manslaughter by preventing the birth of a living child. The assault on the unborn child could be physical or pharmacological. Abortifacient drugs could be used without the knowledge of the mother who might consider that she was experiencing a natural “miscarriage”.

Embryo experimentation

It would seem likely that decriminalisation of abortion would reduce the rights and confuse the legal indentify of the embryo and unborn child. If the embryo was no longer considered a human person, experimentation on embryos is likely to be extended. The human embryo would have less legal protection than a laboratory animal as it would be regarded as no longer human. It would be easy for the in vitro embryo to be used as an experimental entity for genetic research, studies on embryonic development, pharmacological research and drug testing. There is a risk that embryonic research would benefit the development of lucrative patents and the embryo would simply be seen as an object in research. This was seen in the lucrative patents arising from germ line genetic research and the development of gene editing techniques.

Foeticide

Foeticide is already permitted under the 1990 HEFA Act for congenital abnormality or “pregnancy reduction” prior to an induced miscarriage. This usually involves an injection into the foetus in utero following which there is a “natural” or induced miscarriage. Foeticide for other reasons would also be legitimised up to the time of birth if abortion was to be decriminalised.

The legal acceptance of foeticide raises novel issues with the advent of intrauterine treatments including surgery. If a viable foetus undergoes intrauterine surgery for the correction of a congenital abnormality e.g. a heart defect and it is successful, the child could then be either delivered at the completion of the surgery by dividing the umbilical cord or returned to the womb for later parturition. In this instance the unborn child becomes a patient subject to a therapeutic procedure which might cause lasting benefit in later life. Consent would have been obtained from the mother on behalf of the unborn child, notwithstanding any agreement, or disagreement, from the father. However, what would the situation be if the surgery was to fail? Would foeticide or abortion be permitted? Since foeticide is currently permitted in the case of congenital disability up to birth, the answer would appear to be in the affirmative. Conversely, would the surgeon be obliged to end the life of the unborn in the event of failed surgery if this was the wish of the mother? Would the surgeon be obliged to perform foeticide rather than allow the child to be born with a disability? Would the surgery occur with this contingency and might the surgeon be considered negligent, with the prospect of extensive damages, if foeticide did not occur? Would this also apply for minor defects which were poorly corrected or worsened by attempts at surgical correction?

If prenatal foeticide becomes permissible for ‘failed’ surgery or other interventions, what logically would prevent perinatal euthanasia for failed intrauterine surgery, or indeed for perinatal disability discovered at birth? What would this mean for disability discrimination and attitudes towards those who are disabled if they could have been destroyed shortly before (or after) birth for their disability? What, if any limit or threshold would be placed on foeticide or active post-natal euthanasia?

Conscientious objection to abortion and foeticide

The decriminalisation of abortion would mean that it would be regarded as a social issue though performed as a medical procedure. Therefore, doctors and midwives could be sued for not performing foeticide or abortion competently and the rights of doctors to conscientious objection would be seriously undermined as abortion and foeticide would no longer be crimes at all. There would be moral confusion over the meaning of the rights of the pre-born or immediately post-natal child.

Post-natal euthanasia and infanticide

The issue of foeticide will inevitably raise the question of the rights of the unborn and the neonate. If foeticide is legal immediately before birth, why not euthanasia immediately after delivery? What is the moral distinction if any between immediate pre- and post-natal existence? What legal or moral change happens at birth? Would the prospect of a requirement for abortion or foeticide not deter the development of prenatal therapies and the development of foetal medicine?

The judgment of Lady Hale in the Glasgow Midwives case [17] at paragraph 16 was chilling as it indicates a clear understating of the legal and moral issues involved when the child after foeticide is treated as a stillbirth with the possibility of bereavement and burial.

“When a patient undergoing a termination is admitted to the Labour Ward, a midwife will be assigned to give her one to one care. This will involve all the usual care of a patient in labour and giving birth – monitoring her condition and stage of labour, pain relief, toileting, delivering the foetus and placenta, supporting the patient and her family through an emotional and upsetting experience, and making the arrangements for the baby once delivered. These will depend upon the family's wishes, but may include helping them with, for example, taking photographs and making funeral arrangements.”