Biolaw - abortion

Question 1

What is reproductive autonomy?

Answer 1

o One’s freedom to decide whether or not to have offspring

Question 2

Importance of reproductive autonomy (3 academics)

Answer 2

o Robertson – it is control over reproduction that is central to personal identity, to dignity, and to the meaning of one’s life
o Jackson – when we disregard an individual’s reproductive preferences, we undermine their ability to control one of the most intimate spheres of their life
o Dworkin – the principle of procreative autonomy is embedded in any genuinely democratic culture

Question 3

Compulsory sterilisation

Answer 3

o Nazi governance
 July 1933 – law put into effect which allowed for forced sterilisation of Germans with physical or mental health conditions assumed to be hereditary
o India
 1975 – when civil liberties were suspended 6.2 million men were sterilised in one year
 2013-14 – carried out nearly 4 million sterilisations, mostly on women

Question 4

How is reproductive autonomy protected?

Answer 4

o Protected by the law
 ECHR Article 8 – right to respect for private and family life
 Negative right – protects individuals from state interference and restrictions from exercising their reproductive decisions
 Positive right – gives the state the responsibility to help individuals with their reproductive decisions
 SH and Others v Austria – Austrian government prevented access to assisted reproduction technologies. Successfully argued this violated article 8 right

Question 5

Types of abortion (plus academic)

Answer 5

o Medical abortion
 The abortion pill – stage 1: misoprostol drug taken at the clinic stage 2: mifepristone taken at home
 March 2020 – permitted use of mifepristone at home and telemedicine
* Parsons and Romanis – were concerns that telemedicine would not allow doctors to safeguard patients before prescribing abortion pills. However telemedicine can safeguard patients and actually would be beneficial to domestic abuse victims as could access treatment without abuser knowing

o Surgical abortion
 Vacuum aspiration up to 15 weeks
 Dilation and evacuation between 15 and 24 weeks

Question 6

Right to abortion - United States (6 points)

Answer 6

 Roe v Wade 1973
* Supreme Court ruled that a woman’s freedom to choose whether to bear a child was constitutionally protected liberty, which the state could only restrict in order to promote a compelling state interest
 Planned Parenthood v Casey 1992
* Supreme Court upheld right to have an abortion but allowed states to adopt measures in evaluating state-imposed restriction on that right
 Heartbeat bills 2010s
* Republican states of Ohio, Georgia, Louisiana and Missouri forbid abortion when a foetal heartbeat can be detected (at 6-8 weeks)
 Ohio Bill 2019
* Ohio introduced bill that banned abortion entirely, unless a woman’s life is in danger, and requires doctors to attempt to ‘reimplant an ectopic pregnancy’ or face charges of abortion murder, punishable by life in prison
* Reimplanting an ectopic pregnancy can be deadly and is not medically possible – the bill requires doctors to attempt the impossible or face criminal charges
 Texas Bill 2021
* Prohibits abortion after cardiac activity can be detected, usually at about 6 weeks
 Dobbs v Jackson Women’s Health Organization 2022
* Supreme Court held that the Constitution of the United States does not confer a right to abortion
* This gives individual states the full power to regulate any aspect of abortion not protected by federal law
* Since Dobbs, 14 states have enacted near-total abortion bans, while 2 states (Georgia and South Carolina) have banned abortion past 6 weeks

Question 7

Abortion statistics

Answer 7

o Approximately 25% of all pregnancies currently end in abortion
o In 2021 – 214,256 abortions carried out in England and Wales
o 80% of abortions take place within first 10 weeks of pregnancy
o 87% abortions are medically induced

Question 8

Arguments in favour of right to reproductive autonomy (right to choose)

Answer 8

 Warren 1973 – Foetus is a human, but not a person, whereas a woman is a person. Foetus’ rights do not trump woman’s rights
 Brown 2000 – To give embryo a right to be killed would give them a right to satisfy their needs at the expense of another person’s autonomy
 Greasley 2017 – Many significant events take place at birth: it is the most complex adaptation process
 Savulescu 2002 – If abortion is loss of future, what about using contraception?
 Little 1999 – ‘To be pregnant is to be inhabited. It is to be occupied’ – the state does not have a right to force the woman to continue in this relationship of intimacy without her consent
 McDonagh 1999 – A woman’s right to abortion does not depend on whether the foetus is a person

Question 9

Middle way for abortion

Answer 9

 Utilitarian justification for abortion – personhood increases with gestational age
 Legal justification

Question 10

Human rights and abortion (3 points)

Answer 10

o P v British Pregnancy Advisory Service
 Husband applied to stop estranged wife from having abortion
 Held foetus had no rights of its own until it had a separate existence from its mother
 Appeal to ECHR – declared that even if foetus had a right to life, the right would necessarily be constrained where the woman’s life was in jeopardy
o Vo v France
 Involved death of foetus due to negligence – French doctor mistakenly ruptured amniotic sac when he mistook her for another patient who was not pregnant
 ECHR decided there was no consensus on moral status of the foetus – foetus was a member of the human race but whether its right to life was protected by Art 2 was indeterminate
o Tysiac v Poland
 Woman with severe disease which advanced with pregnancy attempted unsuccessfully to obtain abortion
 ECHR held Polish gov had violated her Art 8 right in its failure to offer women full access to reproductive health services

Question 11

Legal Framework for Abortion - England and Wales (3 statutes)

Answer 11

 Offences Against the Person Act 1861
* S.58 – maximum sentence of life imprisonment if woman intends to procure miscarriage
* S.59 – unlawfully supplying or procuring poison/noxious thing/instruments for woman
 Infant Life (Preservation) Act 1929 -s1(1)
* Makes destruction of a child an offence
* No offence is act done in good faith to preserve mother’s life – only offence if done unlawfully
 Abortion Act 1967

Question 12

Reasons for the Abortion Act 1967

Answer 12

• Reasons for legislation:
  o High demand for abortions
  o High mortality rates from backstreet abortions
  o To provide (limited) statutory defence to the crime of abortion
  o Still prevented women access to abortion ‘on demand’
  o Not legalized to enhance women’s reproductive autonomy, rather to enable doctors lawfully in assisting women

Question 13

What is the Abortion Act 1967

Answer 13

• Abortion is still a crime under OAPA 1861, but Abortion Act 1967 creates an exception
• Abortion Act 1967, as amended by Human Fertilisation and Embryology Act 1990, s.37:
  o Person not guilty of an offence if termination is
  1. Performed by a registered medical practitioner
  2. Two registered practitioners have formed an opinion in good faith
  3. Person’s circumstances fall within one of four grounds for abortion

Question 14

Abortion Act 1967 - s1(1)(a) the social ground

Answer 14

o Pregnancy not exceeded 24 weeks
o Continuation of pregnancy would involve risk greater than if pregnancy were terminated
o Risk
 To the physical or mental health of the pregnant woman
 To any existing children of her family
o Accounted for 99% of all abortions in England and Wales
o Account may be taken of woman’s actual or foreseeable environment (section 1(2))

Question 15

Abortion Act 1967 - s1(1)(b) risk or grave injury

Answer 15

o Termination can be necessary to prevent grave permanent injury
o Injury might involve physical or mental health of the pregnant woman

Question 16

Abortion Act 1967 - s1(1)(c) risk to life

Answer 16

o Continuance of the pregnancy would involve risk to life of the pregnant woman greater than risk if pregnancy were terminated

Question 17

Abortion Act 1967 - s1(1)(d) foetal abnormality

Answer 17

o Substantial risk of fetal abnormality – if child were born it would suffer from physical or mental abnormalities as to be seriously handicapped
o Discretion for doctors on meaning of ‘serious’, ‘substantial’
o Guidance by Royal College of Obstetricians and Gynaecologists
 Effective treatments available?
 Suffering that would eb experienced
 Probability of living independently as an adult
o Crowter v Sec of State for Health and Social Care
 Claimants argued 1(1)(d) provision was incompatible with Art 8 (right to private life) and Art 14 (non-discrimination provision)
 Provision perpetuates discriminatory attitudes and negative stereotypes towards disabled people
 Both claims were rejected – high court did not accept disability ground perpetuated discriminatory attitudes

o Tongue (2021)
 The issue of abortion and disability need not be presented as a conflict between interests of disabled people and disability justice advocates versus those of feminists and reproductive autonomy of pregnant people – this is how the High Court in Crowter frames it
 However it is possible to take an approach that recognises the importance of access to abortion while also addressing the concerns raised around disability exceptions – support both interests of pregnant people and disabled people
 High Court made correct decision in Crowter as restriction or removal of section 1(1)(d) would have only forced pregnant people to continue unwanted pregnancies to term, while failing to address why pregnant people have abortions for non-fatal foetal disabilities
 However, the court rejected important issues around perpetuation of stereotypes and discriminatory attitudes
 Even though there may be no causal connection between section 1(1)(d) and discrimination towards people with Down’s Syndrome, the legislation does make an implicit comment upon the position of disabled people
 Wholesale reform of the Abortion Act is long overdue, but we must also recognise and act to address the structural inequalities that disabled people face

Question 18

Rights of the father

Answer 18

o Paton v Trustees of the British Pregnancy Advisory Service
 Husband sought injunction to restrain defendants from terminating estranged wife’s pregnancy
 Application rejected – Abortion Act 1967 gives no right to a father to be consulted in respect of a termination of a pregnancy
 The husband has no legal right enforceable in law or in equity to stop his wife having the abortion or to stop the doctors from carrying out the abortion
 Woman’s Article 8 rights prevailed
o C v S
 Injunction to prevent girlfriend having a termination was refused

Question 19

Abortion law in Scotland

Answer 19

 Common law crime
* ‘wicked intent’ - It recognises that a doctor who is performing abortion for therapeutic purposes does not have wicked and felonious intent and is therefore not acting criminally
 Abortion Act 1967

Question 20

Abortion law in Northern Ireland

Answer 20

 Originally governed by:
* sections 58 and 59 OAPA 1861
* Section 25 Criminal Justice Act (Northern Ireland) 1945
 Abortion Act 1967 never extended to NI
 Northern Ireland Human Rights Commission
* NI law prohibited abortion in cases of a) serious malformation of foetus, b) pregnancy resulting from rape, c) pregnancy resulting from incest
* Challenged compatibility of law with Art 3 (Prohibition of torture and inhuman/degrading treatment), Art 8 (Right to respect of private and family life) and Art 14 (prohibition of discrimination)
* UK Supreme Court declined to make declaration of incompatibility, however majority of the court considered that current law in NI was disproportionate and incompatible with Art 8 ECHR
 Section 9 Northern Ireland Executive Formation Act 2019
* Abortion up until 24 weeks gestation is decriminalised

Question 21

Abortion law in Republic of Ireland

Answer 21

 The 8th Amendment 1983
* Ireland become first state to enshrine fetal rights in the Constitution
 Section 58 and 59 OAPA 1861
* Criminal offence to procure miscarriage or assist someone in doing so
 AG v X [1992]
* 14 year old pregnant as result of rape
* Established right of Irish women to an abortion, if a pregnant woman’s life was at risk because of pregnancy, including risk of suicide
* However legal uncertainty about precise circumstances
 Savita Halappanavar 2012
* Medical staff denied request for abortion following incomplete miscarriage, on grounds that granting her request would be illegal under Irish law - Savita died due to septic miscarriage
 A, B, C v Ireland [2010]
* ECtHR found Ireland had violated ECHR by failing to provide an accessible and effective procedure by which women can have established whether they qualify for a legal abortion under Irish law
 Protection of Life During Pregnancy Act 2013
* Bill restated the general prohibition on abortion in Ireland.
* However, abortion can be performed if there is a real and substantial risk to the life, risk of loss of life from physical illness or risk of loss of life from suicide.
 36th Amendment 2018
* Formally repealed the 8th Amendment – ban on abortion was overturned
* Abortion is permitted in first 12 weeks of pregnancy and in later cases where woman’s life or health at risk, or in cases of fetal abnormality

Question 22

Reform of Abortion law - decriminalisation (4)

Answer 22

o 2017 Campaign to decriminalise abortion law in UK
 Bill would repeal section 59 of OAPA and amend section 58
 Would decriminalise pre-24 week abortions
 Abortion Act 1967 would continue to apply post 24 weeks
 Bill is currently in second reading
o Sheldon 2016
 In the UK doctors have used the broad discretion accorded to them under the Abortion Act 1967 to respect patient autonomy.
 Now it is time to ‘update the law to bring it into line with modern medical practice, leaving abortion services subject to the same complex web of regulation that governs other aspects of healthcare provision’
 MPs should ‘recognise our formal legal right to control our own fertility’
o Dyer (2017)
 Campaigners say ‘abortion is the only medical procedure that is regulated by the criminal law, denying women control of their bodies’
 1988 Canada decriminalised abortion – since this there remains a relatively low rate of abortion – positive statistics for decriminalisation
 Opposition from Christian and antiabortion groups – decriminalisation would exacerbate danger posed by increased availability fo abortion pills and remove the protection and regulation of the law, fuelling unsafe practices in UK
o Berer (2017)
 The fact that abortion is till legally restricted in almost all countries is indicative of the continuing ambivalence and negativity about abortion in most societies, no matter how old or where the law came from
 Various laws and restrictions on abortion fo mot make any legal or public health sense – what makes an abortion safe is when it is available on the woman’s request and universally affordable and accessible
 If it were up to me, all criminal sanctions against abortion would be revoked, making abortion available at the request of the only person who count – the one who is pregnant

Question 23

Current medicalisation of abortion procedure

Answer 23

 Rests on doctor’s judgement not woman’s choice
 Doctors need to act in good faith
 What is good faith?

• R v Smith 1974
  o Doctor who had obtained the necessary second signature foreseen in the Abortion Act was not protected by it.
  o Convicted under the 1861 Offences Against the Person Act.
  o Dr Smith was judged not to have acted in good faith: he had neither assessed the woman sufficiently fully nor carried out her abortion in accordance with good medical practice. Dr Smith had charged a large fee and had taken steps to conceal the fact that he had performed an abortion also provided damning evidence of bad faith

 Is this an area where there should be deference to clinical expertise?
 How can a doctor assess one’s mental state or social environment?
 How should this be balanced with female reproductive autonomy?