Abortion Flashcards
General abortion framework
Abortion is a criminal offence under ss 58-59 OAPA 1861 - thus under the criminal law if a woman/another person unlawfully terminates a pregnancy then they are criminally liable.
However, under the Abortion Act 1967 abortion has been decriminalised in a number of circumstances - exceptions to the general prohibition under the criminal law.
Therapeutic exceptions to abortion permitted - these are fairly broad (esp. social ground). English law thus does not treat the foetus as the same status as a legal person, contrast to Ireland e.g. where the 8th amendment to the constitution puts a blanket ban on abortion completely.
s 58 OAPA 1861
Criminal offence for a woman to administer noxious substances to herself.use an instrument to procure her own miscarriage.
s 59 OAPA 1861
Criminal offence for another individual to procure a woman’s miscarriage, e.g. by administering noxious substances.
Context - AA 1967
Key reason for passing the AA at the time was to reduce the number of dangerous, back-street abortions which were taking place. There were very high levels which was putting women’s lives and health at risk, so primary reason and framing of the AA defences was to ensure that women could have access to safe abortions.
Three stages of pregnancy under English law
1) Pre-implantation - women have easy access to contraception since it is not an abortifacient.
2) Implantation - 24 weeks - primarily social ground under s 1(1)(a) AA 1967. Relatively easy access to abortion.
3) Post 24 weeks - limited access to abortion on maternal health or fetal abnormality grounds.
Safeguards for abortion
1) Medical monopoly/only doctors can carry out abortions - s (1)(1) AA 1967
2) Abortions can only be carried out in NHS hospital or other approved place - s(1)(3) AA 1967
3) Need for second opinion - s 1(1) AA requires to doctors to have formed the opinion in good faith that one of the grounds for abortion applies.
4) Notification requirements - s 2 AA provides that certificates etc. must be issued to doctors to fill out for abortion. Evidentary requirements.
s 1(1)(a) AA 1967
Social ground for abortion. Social ground applies where two doctors are satisfied that the pregnancy has not exceeded its 24th week and continuation of the pregnancy would result in risk, greater than were the pregnancy to be carried to term, to the mother’s mental or physical health, or the wellbeing of any existing child.
s1(2) AA 1967
Doctors may take into account actual or foreseeable circumstances when determining the affect on the woman’s mental or physical health.
This makes it easier for doctors to authorise abortions under s 1(1)(a) AA - can take into account foreseeable impact on mother’s mental health, which makes it easy to grant abortion since risk of pregnancy is usually lower than risks to mother’s mental health by carrying the pregnancy to term.
Note also - ‘health’ under the Act uses the broad WHO definition of health, which does not just include disease or conditions but mental wellbeing too.
s 1(1)(b) AA 1967
First maternal health ground - applies where termination is necessary to prevent grave permanent injury to physical or mental health of the mother.
s (1)(1)(c) AA 1967
Second maternal health ground - applies where continuation of the pregnancy would involve greater risk to the life of the mother than termination of pregnancy.
s(1)(1)(d) AA 1967
Fetal abnormality ground - applies where there is a substantial risk that if the pregnancy were carried out the child would suffer from such mental or physical abnormalities that they would be severely handicapped.
s 4 AA 1967
Conscientious objection clause to participation in abortion - no person is under a duty to participate in termination of pregnancy if they conscientiously object.
Note, however, that this does not apply to the maternal health ground where there is a grave risk of serious injury to mother’s mental or physical health under s (1)(1)(b).
Sally Sheldon
‘Decriminalisation of Abortion: An Argument for Modernisation’ - argues that the current framework is outdated and should be reformed.
AA framework was decided in the context of very different concerns/rationale. Retaining this framework in a different context has two problems:
1) Act’s two doctor requirement is grounded in assumption that doctors, not women, are best placed to decide whether an abortion is justified. Medicine has moved away from this approach of medical paternalism.
2) Other legal safeguards are unnecessary and hinder women’s access to a timely abortion. Not supported by any current medical evidence base. E.g. only NHS hospital or other approved place - 50% of abortions in England are now EMA - don’t need restrictive requirements.
Criminalisation under ss 58-59 OAPA is not justifiable - aim that women are at risk of abortion is untenable given that evidence shows abortion is generally much safer than carrying pregnancy to term. Should decriminalise abortion and remove unnecessary safeguards - stigmatise women and impede access to timely abortions.
Reproductive Health (Access to Terminations Bill) 2016-17
Note that a recent Bill passed its first reading in the House of Commons narrowly, proposed by Diane Johnson MP. Draft Bill has yet to be published and will now have to be restarted in the next parliamentary session - but possible it may be decriminalised in the near future.
