Abortion

Question 1

Lord Ellenborough’s Act of 1803

Answer 1

Procuring the miscarriage of a woman ‘quick with child’ was a crime subject to captial punishment.

Question 2

Lord Landsdowne’s Act 1828

Answer 2

Preserved criminal offence but changed penalty from capital punishment to imprisonment, transportation or whipping.

Question 3

Offences Against the Person Act 1861

Answer 3

S58: Any woman who administers poison or uses any instrument to abort her child with poison of any instrument shall be guilty of felony

S59: Anyone who obtains poison or any instrument knowing it is intended to be used to abort a child is guilty of a misdemeanor

Question 4

Infant Life Preservation Act 1929

Answer 4

Protects foetus from violence to the mother
S1(1): Any person who, with intent to destroy the life of a child, by a wilful act causes a child to die before it has an existence independent of its mother will be guilty of felony to wit of child destruction.
Provided the act was not done in good faith to preserve the life of the mother

Question 5

C v S: capable of being born alive?

Answer 5

Baby must be able, on delivery, to breathe either naturally or with mechanical aid.

Question 6

The Abortion Act 1967
Section 1(1)(a)

Answer 6

Performed by registered medical practitioner

Two medical practitioners are of the opinion in good faith that
The continuation of the pregnancy would involve greater risk of physical or mental injury to the pregnant women or any existing children in her family than if the pregnancy were terminated

Not exceeding 24 weeks gestation

Question 7

Section 1(1)(b) AA 1967

Answer 7

Performed by medical professional

Two medical practitioners are of the opinion in good faith that

Abortion is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman.

Question 8

Section 1(1)(c) AA 1967

Answer 8

Performed by medical professional

Two medical practitioners are of the opinion in good faith that

Continuance of pregnancy would involve risk to the life of the pregnant woman

Question 9

Section 1(1)(d) AA 1967

Answer 9

Performed by medical professional

Two medical practitioners are of the opinion in good faith that

Substantial risk that if child were born it would be seriously handicapped.

Question 10

Crowter v Sec of State for Health

Answer 10

English courts unwilling to recognise any right to life, or discrimination arguments on part of the unborn child because to do so may create an obvious conflict with the rights of women.

Question 11

Paton v Trustees of British Pregnancy Advisory Services [1979]: does a foetus have a right to life?

Answer 11

NO - foetus cannot have a right of its own until it is born and has a separate existence from its mother.

Question 12

Right to abortion?

Answer 12

No legal right to abortion – BUT right to request it subject to AA 1967.

Montgomery – Abortion Act does not provide women with rights to terminate – dependent on finding doctors who will cooperate with their wishes – vulnerable to prejudices.

Question 13

Vo v France [2004]

Answer 13

Negligence claim for her own injury and trauma but no legal protection for foetus in that context.

Question 14

A, B, C v Ireland (2011)

Answer 14

Margin of appreciation → ECHR respects the religious backgrounds of member state countries

Question 15

Paton v BPAS: Fathers rights

Answer 15

AA 1967 gives no right to the husband to be consulted.
ECHR – husbands’ right to family life must be subordinated due to the need to protect the rights and health of women.
Justified under Art8(2).

Question 16

Evans v UK: The reluctant father

Answer 16

Natalie Evans froze embryos with partner when discovered cancer to be implanted later. Successfully treated for cancer. Relationship broke down. Ex partner withdrew consent.

Held: Even though she promised court she would not seek financial help from him she lost. His right to consent was more important than her right to be a biological mother.

Question 17

Conscientious Objection

Answer 17

Conscientious Objection = putting forward that you cannot do something based on moral or religious beliefs linked with your conscience.

Section 4 AA 1967: provides no person shall be under any duty ‘to participate in any treatment to which he has a conscientious objection’.
UNLESS – emergency → if abortion is needed to save a woman’s life then conscientious objection is not permissible under s4.

Question 18

Janaway v Salford Area Health Authority

Answer 18

The term ‘participate’ referred to actually taking part in treatment terminating a pregnancy. Secretary could not rely on it for referral letters.

Question 19

Doogan v Greater Glasgow [2014]

Answer 19

SC held cannot excuse yourself from general care outside of procedure - narrow view on s4. Could refuse any ‘hands-on’ role that would not have been a task but for the defences provided for in s1 of the Abortion Act.

Question 20

What falls within s4 conscientious objection?

Answer 20

NO:
Administrative duties - (e.g., booking patients in, allocating staff to duties in the ward and ensuring staff took breaks, referral letters).

YES
Medical duties (e.g., supporting any medical intervention or fetching the drugs comes within the scope of conscientious objection).

Note: Lady Hale noted that even if staff could not rely on s4, could claim under the HRA or Equality Act that employers should have made reasonable adjustments to accommodate the objections due to religious beliefs.

Question 21

Decriminalisation?

Answer 21

Decriminalisation means taking away application of potential criminal offences -> would not mean abortion is not regulated at all.
It means if you did access abortion outside of legal procedures you would not be criminalised/ punished/ prosecuted.

Question 22

Dr Bourne

Answer 22

Dr Bourne was acquitted after he terminated the pregnancy of a young victim of rape (14 year old of gang rape).
Judge suggested that there might be a duty to abort to save the ‘yet more precious’ life of the woman.
(Before Abortion Act)