Criminalised abortion in UK obstructs reflective choice and best care
BMJ 2018; 362 doi: https://doi.org/10.1136/bmj.k2928 (Published 09 July 2018) Cite this as: BMJ 2018;362:k2928
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The Editorial, unfortunately, confuses a number of different issues under the rubric of ‘decriminalisation’. First, whether sections 58 and 59 of the Offences Against the Persons Act (OAPA), which criminalise unlawful abortions, should be repealed. Second, whether the substantive and procedural requirements of the Abortion Act should be liberalised by, for example, removing the requirements of the two doctors or allowing telemedicine. Third, whether and to what extent should the position in Northern Ireland be liberalised. This response will focus on whether sections 58 and 59 should be repealed. The two other proposed changes can be done without repealing those provisions.
Repealing sections 58 and 59 would result in there not being any substantive or procedural restrictions on abortion prior to 24 weeks when the Infant Life Preservation Act (ILPA) starts to operate by prohibiting abortion after that point. If, in addition, ILPA is repealed there would not be any legal restrictions on abortion at any point until birth. So it is true that repealing sections 58 and 59 would liberalise abortion access in England, Wales and Northern Ireland but repeal is a very blunt instrument to do so. The main use of sections 58 and 59 have been the prosecution of men for surreptitiously administering abortion pills to women. Repealing those provisions would reduce the protection women have against non-consensual abortions. Defenders of decriminalisation might argue that such cases could be prosecuted under other legal provisions, for example, the poisoning offences under sections 23 and 24 of the OAPA. But it is far from clear that a prosecution using those provisions would succeed on legal grounds. Whereas under section 58 the thing administered must be harmful to the foetus, under sections 23 and 24 it must be harmful to the woman. But it is by no means clear that misoprostol is harmful to women; it is after all used to treat stomach ulcers. So, if we believe that non-consensual abortions are a serious crime that should be prosecuted then we must not repeal sections 58 and 59.
It is argued that the current legal position - whereby abortion is a crime unless the conditions of the Abortion Act are met - is ‘hypocritical and anachronistic’. But why? This position makes perfect sense. It recognises that an unwanted pregnancy involves a moral conflict between the foetus and the woman. Indeed, one of the authors of the Editorial chastised, in a January 2017 Editorial, those who refused to acknowledge moral complexity in this area.
Sections 58 and 59 recognise that the foetus has value whilst the Abortion Act recognises the important autonomy interests at stake for the woman. The balance that the law draws is that outside the context of the Abortion Act the foetus’s interests should be protected - hence the criminalisation of non-consensual abortions - but that in the conditions laid down in the Abortion Act the woman’s interest wins out. In other words, abortion is a prima facie wrong which is, in some circumstances, all-things-considered justified.
This is in line with public opinion. The Editorial cites the British Social Attitudes Survey which shows that over 60% of the population believe a woman should be able to have an abortion if she does not want to continue with the pregnancy. But this is not inconsistent with abortion being a prima facie wrong which becomes justified when the woman does not wish to continue gestating. Other opinion polls confirm this view. A 2013 YouGov poll for the University of Lancaster found that 44% of the population (and 53% of woman) thought that life begins at conception, a further 30% thought it begins at some point during pregnancy and only 17% believe that it begins at birth. There is also widespread concern about the high rate of abortion in the UK. For example, on the Daily Politics on the May 22nd Jacob Rees-Mogg MP (who is pro-life) and Jo Swinson MP (who is pro-choice) both expressed the view that 200,000 abortions per annum was too high. Public opinion shares that view. An October 2010 poll by ComRes found that 62% of the population believed that the abortion rate was too high and should be reduced, only 25% thought it was a reasonable number. But, if abortion was not even considered to be prima facie morally wrong, such a view would not make sense. It is precisely because abortion is seen as a moral wrong (albeit one which can justified) that there is such a concern about the high rate of abortion.
But perhaps the clearest evidence that abortion is seen as a prima facie moral wrong is an October 2017 poll by Com Res. It explicitly asked people what their thought was on decriminalisation. 55% (and 56% of women) said that it would ‘not be good because although it is often felt that abortion is acceptable in some contexts it is also recognized that the unborn child requires some legal recognition and protection which would not be consistent with permitting abortion without any legal restraint’; by contrast 45% agreed with the view that decriminalisation would be good ‘as it would remove the stigma from having an abortion.’ The poll also found that 53% thought decriminalisation would ‘be wrong as it would no longer indicate the serious nature of a procedure that ends human life’ by contrast 47% thought that it would ‘be good as it would send a signal that it is a woman’s right to choose what happens to her body.’ So a majority of the population believes that it is more important for the law to signal that abortion is a prima facie wrong than it is to remove any stigma that this judgement might cause.
Therefore, the current scheme whereby abortion is a crime subject to exceptions provided in the Abortion Act should stay. Such a scheme ensures the protection of women from non-consensual abortions and it plays an important role in signalling that we consider fetal life to be valuable, albeit one which can be overridden by the interests of the pregnant woman.
Competing interests: No competing interests
This appeal is deeply ambiguous, which in a sensitive and complex legal situation is extremely problematic. Are the authors calling for the complete decriminalisation of abortion? Or leaving ILPA in place, keeping abortions illegal after viability? Are they addressing Northern Ireland only? Is the 2 doctor requirement the target? A general call for ‘decriminalisation’ lacks any of the desperately important nuance. Let us follow their arguments (that criminalising abortion creates stigma and prevents developments in safe medical practice, and that abortion is ubiquitous regardless) to their logical conclusion and suppose they are calling – along with prominent abortion providers and in line with much of the US and Canada – for the complete decriminalisation of abortion up to birth. If they are not calling for this, they should clarify in print their wish to maintain the illegality of third trimester abortions, lest the public get the wrong impression. On this basis, let us consider their arguments.
The authors state that abortion is ‘ubiquitous, whether or not it is available legally’ and that ‘decriminalisation does not increase abortion rates’. While space does not permit extended discussion, it is widely agreed across the ideological spectrum that conservative abortion laws (whether criminalisation, parental involvement, or other laws) reduces the number of abortions (see work by Kate Greasley, Phillip Levine, and Michael New, inter alia). Their claim is saved – if at all – only by its ambiguity. The evidence on decriminalisation, in particular, is quite clear.
They claim that UK abortion law impedes advances in safe medical abortion practice. If true, this is hardly compelling. It is hardly a convincing reason to decriminalise a crime on the grounds that criminalisation is preventing nurses from assisting in it. Nor is the charge of paternalism successful. Paternalism concerns restricting choices people can make on the grounds of their own interests. But abortion restrictions are not (always) there to protect the women’s interests (though there are compelling arguments re: mental health and coerced abortions that they do so). They are there to recognise the interests of the foetus, which are widely agreed to be present in at least some measure. It is not paternalistic to make laws preventing people from violating the rights and interests of other human beings; it is a matter of justice. In this case our society has judged – with almost every other society in the world – that 3rd trimester abortion should not be legal.
Finally, they claim that ‘the law is out of step with those in many other European countries and with UK social values’. Quite so. The law in most of the UK is far more liberal than almost every other country in Europe (including Scandinavia), given the de facto abortion on demand until 24 weeks interpretation of the Abortion Act. To bring the UK in line with Europe would require a considerable reduction of the limit for abortion on demand in Great Britain to around 12 weeks or so. This is a move we can, I hope, all accept.
Likewise with UK social values. A decisive majority of the UK public (70%) think that the abortion limit of 24 weeks should be reduced to 20 weeks or lower (59% of women think <16 weeks). By contrast, legal abortion up to birth is endorsed by a meagre 1% of the public. To interpret this as ‘widespread public … support for decriminalisation in the UK’ is surely to stretch the word ‘widespread’ beyond toleration.
Maybe the authors do not mean to advocate legal abortion on demand up to birth. But if not, why not? Why are the ‘compelling’ arguments they have given for their highly ambiguous version of decriminalisation not also applicable to third trimester abortion? The authors must choose between public opinion and their arguments/third trimester abortion. They cannot have them both. And if they maintain that third trimester abortion should still be illegal, will they say so, and instead outline exactly what they do mean by ‘decriminalisation’?
As it happens, even partial decriminalisation is not in line with public opinion. Polling (e.g. ComRes, 2017) shows that most people support a reduction in the time limit for abortion, and that more people support a two-doctor (or more) criterion than either eliminating or loosening it. So, if not legal abortion up to birth, what type of decriminalisation is being supported here, and where is the public support for it?
Concerning Northern Ireland, there is public support for a change in the law. But to construe this as anything other than a will for legal abortion in highly restricted circumstances is highly misleading. A decisive majority still oppose abortion for the same reasons 97-98% of UK abortions happen: socioeconomic reasons. Only 9.3% of Northern Irish medical students support abortion on demand. To smuggle in decriminalisation on the basis of (still controversial) public support for abortion in the highly sensitive and extraordinarily difficult cases of rape and fatal foetal abnormality is simply illicit.
The authors are right that doctors cannot reasonably judge that an abortion would likely be better for the woman’s mental health. But that is because, despite many studies, there is not a shred of evidence for it. But if there is impalpable evidence for the primary medical justification for 98% of abortions, how is this fact an argument in favour of making abortion part of routine healthcare?
Finally, the authors have, it seems, entirely neglected the possibility that abortion is a prima facie bad thing, and that is why most people think that its incidence ought to be reduced. Most people think that foetuses – especially in the third trimester – have at least some value and some rights. And in the bioethical literature the questions of the ethics of abortion and of the rights of the foetus are far from decided. But acknowledging rights – however nascent – in the law inevitably requires some legislation. And if the rights are very serious rights – as many bioethicists maintain – they must be given considerable legal weight.
In light of the foregoing, it is surprising that the authors note that criminalisation is a blunt tool. For what could possibly be blunter than their overwhelmingly unpopular notion of (we presume, until stated otherwise) decriminalising abortion entirely? The authors decry the ‘unpopular attempts to constrain women’s reproductive choices’. But the reality is that 99% of the public (and perhaps even the authors themselves) think we should constrain reproductive choices in some cases. Even among medical professionals, only 67% of UK medical students would feel comfortable performing an abortion even if the mother’s life is at risk. There is considerable ambivalence about abortion, and the overwhelming majority of the public think that some abortions should be illegal. Hence the – admittedly difficult – task of finding a law that pays due attention to the rights of women, rights of foetuses, and that is acceptable to the public. So my question is: do the authors support the notion of some abortions being illegal? If so, why are their ‘compelling’ arguments not compelling in such cases, and why do they thereby insist on constraining women’s reproductive rights? If not, then will they at least admit that their position is wildly disconsonant with the overwhelming majority of European law, UK medical professionals and their patients?
Competing interests: No competing interests
In the Rapid Responses, JK Anand asks the authors of this article to rebut Eugene Breen point by point. But there is no point in their doing so. A commenter to the Guardian newspaper who identified themselves as Chas2006 made this comment to an article about abortion.
"The abortion debate really boils down to philosophical questions and therefore neither side can be right. Is the foetus a human being? Does it have the right to live? At want point does the unborn baby become human? These questions can never be answered yet both sides act as if they have. I for one believe abortion is wrong but I can’t prove it is and I have to accept in today’s society the majority don’t agree with me."
For pragmatic rather than philosophical reasons, I believe safe abortion is essential, and that decriminalisation would make it safer.
Competing interests: No competing interests
I agree with the authors call to update the UK's abortion laws. The authors importantly note, decriminalising abortion provides an environment for women and girls to freely and honestly discuss their reproductive options with healthcare providers; and ensure they make the best, informed decision for them (whether that is to continue with the pregnancy, undergo an abortion, or use alternative available options).
From a medical student’s perspective, I have concerns induced abortion is only covered as part of the 'personal and professional development' component of the undergraduate medical curriculum. This component of the curriculum facilitates students to reflect upon their own views and the perspectives of others (including the legal status) by debating controversial issues, such as an abortion. Considering one in three women in the UK will have an abortion during their reproductive life, it is shocking that we are not additionally taught the basics of managing an unwanted pregnancy.
As with other health matters taught at medical school, the subject requires a holistic approach, considering appropriate counselling and support, medical and surgical management of an abortion, alternative options and complications of an unwanted pregnancy. In my opinion, the current abortion laws are complicated and as described by the author encourage "clinical contortion". Consequently, the current legal framework hinders the integration of abortion teaching into the undergraduate gynaecology programme and undermines the importance of a reproductive rights-based approach to women's health education. This results in future clinicians potentially being misinformed and under-equipped with the knowledge to manage an unwanted pregnancy.
Additionally, I suspect this may contribute to the current shortage of trained medical personnel working in abortion services, leading to long and variable waiting lists. Furthermore, in an era of safe and effective medical abortion, it is shameful the UK fails to offer a compassionate and patient-centred approach to medical abortion. It is not clinically necessary for women to attend two appointments and take misoprostol in clinic, potentially resulting in an untimely abortion on her way home.
Ultimately, undergoing an induced abortion is a medical and ethical issue rather than a criminal one. Decriminalising abortion is the necessary way forward for the UK to ensure women and girls receive high quality, safe abortion care and will enable medical students to receive adequate teaching on this subject.
Competing interests: No competing interests
1. I am an ancient. You might with justice suggest that I am a walking dinosaur.
2. However, Prof Breen makes some sound points.
3. Would the authors care to rebut Prof Breen, point by point?
Competing interests: No competing interests
Abortion will never be "standard medical practice" for the reason that it crosses an untouchable and inviolable human rights, moral and natural justice line. Before discussing a woman's rights, a man's rights, reflective choice, best care, you ask "What are we talking about?" Is it a form of treatment, or a surgical procedure, or a life sustain intervention, and does it impact on anyone else? Abortion is none of these things except that it seriously impacts on the lives of the baby the mother and the father. It ends an incipient human life. It contravenes the most basic of all human rights upon which every other right depends. It denies a person a right to life. Nothing else is conscionable after that, because the branch humanity sits on has been severed. If incipient human life is not valued and protected, all human life is demeaned and under threat. The literature shows this correlation between abortion-homicide-suicide.
Competing interests: No competing interests
Why Armchair Ethics Will Not Solve the UK's Abortion Divide
Whilst failing to appreciate how BPAS provide abortion care in the UK, and conjecturing on public opinion, Goldbeck-Wood S. et al argue for the “decriminalisation” of abortion.
I will share my experience from spending a day at a BPAS clinic to see vacuum aspiration procedures. I saw women receiving pre-procedure counselling, one-to-one nursing and post-procedure bedside monitoring in the recovery room, where a crash trolley was also present. Before discharge, patients were safety-netted for signs of infection, haemorrhage and retained products. Even purely medical abortions carry these risks. It is concerning therefore, that the author labels the provision of abortion in designated clinics as hypocritical and anachronistic, when any other way would undoubtedly compromise patient-safety. The solution to providing abortion services to the physically disabled is not reckless promotion of telemedicine self-abortion in a campaign of blind “decriminalisation”, neglecting that the main onus for the 1967 Abortion Act was the protection of maternal health.
All the women I saw at least that day stated not using contraception and unwanted pregnancy as the reason for abortion. In one encounter, the nurse volunteered to the patient whether she felt any emotional distress due to this, so that the required details could be entered onto an online system and certified by two remotely-located on-call physicians. Either way, the BMA holds that the relative risk of an unwanted pregnancy and childbirth will mean that legally, “there will always be medical grounds to justify termination in the first trimester” [1]. Thus, it is pure conjecture that risk to mental ill health must somehow be dubiously confirmed in order to access abortion.
The UK has the most liberal abortion provision in the EU, offering it on-request up till 24 weeks, resulting in 200,000 abortions per year. Whilst I appreciate the highly emotive nature of abortion for women, I remain unconvinced that decriminalisation is a solution to improving access. The author’s extrapolation of the Northern Irish issue to the whole of the UK is a clear fallacy.
References
[1] BMA, The Law and Ethics of Abortion, November 2014.
Competing interests: No competing interests