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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

Rapid Response:

Re: Criminalised abortion in UK obstructs reflective choice and best care

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

26 July 2018
Calum A Miller
Medical doctor, Visiting Research Fellow in Bioethics
University of Oxford
Oxford, UK