Abortion Law Flashcards
Feminist perspectives on abortion (pro-choice)
more reproductive freedom that abortion - women have a right to self determination, privacy and bodily autonomy and integrity.
not allowing abortion violates these rights.
rejects notion of competition between value of feotus & rights of women - rights of feotus is relational rather than absolute; value people for personality not mere existence
Borgman quote on abortion in law
‘moral aspect of abortion that we should see codified in law is a woman’s dignity and autonomy in making their own decisions about fate of her pregnancy and thereby her life’
Feminist perspectives on abortion (pro-choice; invasion of woman’s body) - Thompson
‘having a right to life does not guarantee having either a right to be given the use of or right to be allowed continued use of another body’
Feminist perspectives on abortion (pro-life)
supports anti-motherhood - views abortion as making women’s bodies as a tool of oppression for men; a reusable sex object.
“now you too can walk away from your responsibilities” - lowering women’s standards to a masculine viewpoint of a wombless male world.
UK right to abortion (SHELDON)
victorious in the legal right to abortion but not moral = essentially decriminalization and whole freedom of reproductive choice for women)
but Sheldon argued ‘british abortion laws cannot be considered liberal legislation’
Williams quote on balancing feminist abortion/anti-abortion
‘for all but most extremist anti-abortionists. The more arresting question is not whether a woman has a right to choose, but rather what appropriate limits or scope this right might be’
Abortion as crime legislation (OAPA 1861)
offences against persons act 1861, S.58; administering drugs or using instruments to procure abortion
S.59 prohibits supply of instruments with knowledge of what such objects were going to be used for
Abortion as crime case: R v Catt
mother aborted baby 1 week before due date - charged with murder - 8 years imprisonment
Abortion as crime case: R v Bourne (N. Irish case)
D gave abortion to 14 year old rape victim - court decided hadn’t acted unlawfully if acted in good faith to save girl’s life (i.e. preventing someone from becoming a mental/physical wreck) - D noted wanted all abortions to be legal in this respect, but would not have carried out abortion if been of prostitute mind (moral right not present)
Abortion as crime: infant life preservation act 1929 S.1
punishment for child destruction - killing unlawfully a child/feotus capable of being person (if feotus past 28 weeks used as evidence of potential life)
Infant life preservation act 1929 case examples - Carl Whant
raped and stabbed 19 year old to death, killing daughter due to be born in 2 weeks, given life imprisonment (judge emphasised name given to feotus and closeness to birth)
problem with removing abortion law on criminal convictions
if decrim, how would we measure feotus capability of being a person? mother can abort at 28 weeks then debatable what kind of criminal justice will prevail for pregnant women losing feotus to a crime. - may require courts to look deeper into intention of mother to keep child (i.e. medical reports, scans, purchasing of supplies)
legal status of feotus: St Georges NHS Trust v S
academic commentary
36 week feotus ‘not nothing, not lifeless and it is certainly human’ - feotus protected by law but does not have right that can be enforced by other people.
Paton: not possible to bring proceedings in name of feotus.
Art. 2 ECHR (right to life)
feotus is not protected under this article as outlined in Vo v France
Current Abortion Law (historical background)
unsafe back street abortions - “class clash” middle class women having safer abortions than working class.
1966; estimated 100,000 to 250,000 illegal abortions per year. - high number of women exposed to potential health risks pursuing abortions
rise of women’s rights in 60s: debates on equality and access to workplace beyond childbearing capacity and thalomide/german measles outbreak led to discussion of abortion where feotus is disabled/severly affected by disease.
Grounds for abortion - abortion act 1967
doesn’t provide right to abortion - made clear in drafting not a liberal free for all act. S.1 pregnancy not exceeded 24 weeks.
S.1(a) is classed as social ground and is most commonly used = continuance of pregnancy would involve risk, greater than if it were terminated, of injury to physical/ mental health of pregnant woman or existing children of her family.
S.1(d) is also important in determining removal of abortion act (disability ground) = substantial risk that if child born it would suffer from physical/mental abnormalities as to be seriously handicapped.
Abortion act 1967 S.2 & S.4
may take into account woman’s actual/foreseeable environment and need for 2 medical practitioners may be discounted if termination seen as immediately necessary to prevent permanent injury to physical/mental health of woman. (S.2)
BUT, under no legal duty to participate in treatment except if necessary to save life/prevent personal injury (S.4)
Ellie Lee comment on abortion act 1967
current law wording of statute makes no reference to rights of women who want to terminate pregnancy
Sheldon critique: constructs of woman as minor and victim emerging from abortion act
minor: in terms of immaturity and underdevelopment with regard to matters of responsibility, morality and womanliness - task of law here is one of responsibilisation = if woman seeks to evade consequences of her recklessness, law should act as barrier.
Victim: distraught, out of her mind with worry of pregnancy; desperate and if no dr will help who knows what she will stop at (e.g. older mothers, unstable family, wanting to sufficiently support existing children).
Law creates woman it seeks to protect (Smart quote)
‘as long as we can translate the vast and differentiated array of women into more easily knowable woman we can gain purchase in the law.’
focus on woman not women - but 1 in 3 women have abortions so procedure sought by women of all ages and walks of life.
reform needs to align current law with modern medical practice and moral values.
Operation of abortion act 1967
2014: 38% of women undergoing abortions in Britain had one or more previously - vast majority under S.1(a) = 98%
basically abortion on demand but need 2 practitioners to sign it off as “gatekeepers” of abortion - risk of termination arguably always less than risk of pregnancy
operation of abortion act S.1(d) - feotal abnormality
must be substantial risk of being seriously handicapped - discretion of doctors for both these meanings.
2015: 3213 made on S.1(d) ranging from congenital malformations to chromosomal abnormalities
feotal abnormality case: Jepson v Chief Constable of West Mersia
Jepson sought judicial review of decisions by cc not to charge Dr for procuring miscarriage when performed abortion for feotus diagnosed with clef palette, J herself was born with such and corrected by series of facial surgeries - argued doesn’t amount to serious feotal abnormality under act
court said Dr had formed a ‘good faith’ judgement.
operation of abortion act - Sheldon positive critique
whilst we have one of the most formally restrictive laws of those countries where abortion is legalised, rates of abortion increase year on year which confirms sheldon’s observation that since AA 1967 the interpretation of it has gradually become more liberal and access to safe, legal abortions has greatly improved.
