Risks, Reasons and Rights
By Saomai Vu Khan
One of the most complex and controversial debates of our time surrounds the right to abortion. Throughout the 20th century, activists such as Stella Browne, Janet Chance, and Joan Malleson fought for abortion rights, with efforts eventually succeeding with the passage of the Abortion Act in 1967. Since then, abortions in Great Britain have been easily accessible on certain grounds, for example to prevent harm to a woman’s physical or mental health. However, some argue that the law has not gone far enough in this respect, with some campaigners now believing that no explanation or reason should be required for the procedure to take place. This then leads to the inevitable question of our time; should abortions be available on demand?
One person who would answer ‘yes’ to this question is Rosamund Scott who, in her article ‘Risks, Reasons and Rights: The European Convention on Human Rights and English Abortion Law’ (2015), argues that the UK should consider ‘abortion law reform, particularly in relation to the first trimester, towards a more autonomy-focused, though time limited, rights-based approach’. S 1(1)(a) of the Abortion Act 1967 requires that, in order for an abortion to be legal when pregnancy has not exceeded its twenty fourth week, two doctors must be of the opinion that ‘the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family’. Scott asserts that by putting the decision to have an abortion in the hands of doctors under s 1(1)(a), rather than in the hands of the pregnant woman, the United Kingdom is in violation of its negative obligations to respect the right to private and family life under Article 8 of the European Convention of Human Rights.
Scott’s first step in rationalising this approach is in pointing out that the European Court of Human Rights ‘holds that abortion regulation amounts to an interference… under Article 8(1) and must therefore be justified under Article 8(2)’. The question then is whether The United Kingdom’s interference is in accordance with the law, has a legitimate aim, and is necessary, as required under Article 8(2). Scott focuses on the ‘so-called statistical argument’ in maintaining that the interference of doctors is not ‘necessary’. Scott refers to the MEC’s statement that: ‘there are always legal grounds for abortion … because the risk to the life, and physical and mental health of a pregnant woman, of continuing a pregnancy, although low, will always be greater than the risk of terminating a pregnancy’. Essentially, as the criteria for abortions under s 1(1)(a) is virtually always met, then abortions are effectively on demand already and so, the third-party intervention under this section is unnecessary and as a result, is an unjustifiable interference under Article 8. As noted by Scott, ‘this must be so, unless there are reasons in a given woman's case to ‘upset the ‘statistical argument’’. The following discussion serves to cause such ‘upset’.
Indeed, the major drawback of Scott’s article is her failure to acknowledge women on all ends of the spectrum, more specifically, women who want to see their pregnancy through, but are pressured by their partners or by society to have an abortion. A study by the polling company D-Cyfor, as reported by the Independent, found that 7% of women have been coerced into having an abortion. This figure could be exacerbated if abortions on demand were legalised, because women who are vulnerable to such coercion may feel they have less excuses to not have an abortion.
This can be explained by Jennifer Denbow’s application of Velleman and Schelling’s theoretical framework of choice (that the existence of choice can be detrimental) to the question of abortion on demand. In her article ‘Abortion: When Choice and Autonomy Conflict’ (2005), Denbow points out that ‘the mere existence of the option to have an abortion can undermine a woman's autonomy’. Denbow notes that this ‘woman's option to end her pregnancy exposes her to pressure from both her partner and society, which can consequently serve to undermine her autonomy’. If this woman chooses to go through with the pregnancy, she must then live with the ‘heightened responsibility’ that the child may be exposed to abuse from its father and a hard upbringing due to financial difficulties, because she chose to have the baby. Denbow adds how this responsibility may be further intensified as the ‘father may feel he has less responsibility to care for both the woman and the child when the woman has freely chosen not to have an abortion’. Furthermore, the social stigma which surrounds women who have children they cannot support financially would not only ‘erode their confidence in their rational capabilities to assess their situation’, but may also make them feel as though they would not be ‘worthy mothers and should exercise the abortion option’. This demonstrates that a freer choice to abort does not automatically mean enhanced autonomy for women, because while it may be empowering to women who are able to independently and confidently make their own decisions, the free choice to abort ignores and can clearly be detrimental to the autonomy of other women in society, particularly those who are impoverished and vulnerable.
The contrast between Scott’s and Denbow’s positions demonstrates the need for a compromise. I believe that s 1(1)(a) of the Abortion Act serves as this middle ground; under this section, vulnerable women can rely on third party intervention (the two doctors) to deny her an abortion, thus transferring the pressure and responsibility of choosing to continue the pregnancy from herself, to the doctors, demonstrating a relevant and pressing need for social interference. Furthermore, as ‘most terminations are performed under [s 1(1)(a)] before 12 weeks’ and since ‘virtually all women seeking an abortion in the first trimester will meet the current criteria for abortion’, as pointed out by Scott herself, then women who do actually want an abortion can get one almost as easily as if it were on demand. Therefore, the UK’s interference is not out of proportion, with the interference being rather slight, which, along with the protection it provides to certain women, defends the position that s 1(1)(a) is in fact necessary.
Of course, it could be debated that if a woman can be pressured into seeking an abortion and is then denied one by a doctor, she can equally be pressured to simply refer to another doctor who will grant her the procedure. Nevertheless, this barrier is certainly better than nothing, especially as it gives women an opportunity to express their true feelings to medical professionals and to receive help.
There are reasons beyond the theoretical framework of choice which indicate that abortions on demand could be problematic. If free abortions became a right, in theory it is possible that the new system could be perceived as encouragement to abort and so could be abused, with people relying on abortions rather than using contraception. This would lead to a growth in the number of abortions, which is contrary to the Parliamentary Assembly of the Council of Europe’s affirmation that ‘abortions must, as far as possible, be avoided’. However, if we look to the example of Spain, we can see that in practice, this may not necessarily be the case. In 2010, Spain decriminalised abortions before 14 weeks, giving women the free choice to terminate a pregnancy before this time. While there was a 0.95 surge in the rate of abortions in Spain in 2011, this rate has steadily decreased ever since.
Spain’s Secretary for General Health, Jose Martinez Olmos, suggested that ‘The sale of the 'morning-after pill' over the counter, pregnancy prevention programs and the advent of new subsidised contraceptives are all helping reduce the number of unwanted pregnancies’. This shows that abortion on demand can function when it is accompanied by a system of education and easily accessible contraception and links back to Scott’s comment that: ‘it would be appropriate for any English law reform to be accompanied by increased attention to appropriate sexual and reproductive education, information and advice and to the availability of contraception’.
Indeed, the importance of contraception is where I believe the UK’s attention should be focused, but this does not need to be accompanied by legal reform. The more educated that people are on the contraceptive options they have and the more accessible that these options are, the less need there will be for abortions and this will still be useful alongside our current laws. As much prevention as possible from unwanted pregnancies will resolve many of the issues and arguments surrounding abortions before they even arise.
Another potential consequence of an amendment allowing abortion on demand is that sex-selective abortions could (depending on time-limits) become permissible, which in the long-term could lead to the underrepresentation of a particular gender (most likely females, as this has been the case historically). For example, a decrease in the number of women would mean a decline in their political power, as they would have less votes as a whole. While sex-selective abortions are a real issue in South Asia, with the sex ratio at birth (SRB) in India reaching 125 (125 boys to every 100 girls) in some Indian states, a 2015 report by the Department of Health has shown that there is not currently an issue in the UK surrounding sex-selective abortions. Furthermore, if a time-limit was imposed on the right to abortion, limited to 18 (or even 13 weeks, as Scott recommends), then it is unlikely that sex-selective abortions would become an issue, since the sex of a baby is normally determined during the second ultrasound scan at 18-21 weeks of pregnancy.
While sex selective abortions may not be an issue when time-limits apply, other problems could arise. Scott’s proposal to repeal s (1)(1)(a) and replace it with abortions on demand limited to 13 weeks, with abortions thereafter being subject to the conditions laid out in s 1 (b), (c), and (d) of the 1967 Abortion Act, would serve to reduce the number of complications that result from late-term abortions, in that it would encourage women to seek abortions at an earlier stage. The greater time limitation would also ‘be in line’ with the law, which ‘implicitly represents that a foetus’s moral status increases during its gestation, thus potentially requiring greater justification for termination as pregnancy progresses’.
However, while Scott reasons that this time-limit would be ‘no less restrictive’, since ‘the great majority of abortions are conducted in the first trimester’, this statement is flawed, because while it may be true for the majority, it fails to take into account women who are between 13 and 24 weeks of pregnancy who, for example, do not find out they are pregnant until after the first trimester, or who have taken longer to decide they want an abortion and who then would not be able to meet any of the legal requirements for an abortion as they would have under s (1)(1)(a). It seems counter-productive to give some rights with one hand but take other rights away with the other; being able to freely choose to have an abortion prior to 13 weeks of pregnancy, to having to fulfil strict requirements immediately afterwards. This could lead to an increase in the number of women seeking unsafe, illegal, back-street abortions as a last resort; there were an estimated 100,000 illegal abortions carried out per year in the UK, prior to the Abortion Act 1967. Furthermore, there were a reported 3,050 women diagnosed with sepsis due to abortions in 1965. More restrictive laws do not result in compliancy, but rather, they force women unable to meet the strict legal requirements into seeking dangerous alternatives.
On a final note, given that Scott’s argument for reform largely surrounds her advocation for enhanced autonomy, reform could potentially open the floodgates to debate surrounding euthanasia and the right to die. Under current laws in the UK, euthanasia is categorised as assisted suicide and is prohibited under s 2 of the Suicide Act 1961, carrying sentences of up to 14 years for those prosecuted. However, if an amendment for the right to abortion was granted on the basis of respecting individuals’ autonomy, then pro-euthanasia advocates may also feel entitled to the right to assisted suicide, since as Naomi Richards notes in her article ‘The fight-to-die: older people and death activism’ (2012): ‘people who join right-to-die societies do so as a result of both their own personal belief in autonomy’. Whether this would be beneficial or detrimental to the moral, political, and legal spheres of society is a debate for another day, but nevertheless it is a highly significant implication that could arise if abortions on demand were permitted.
I believe that the takeaway from this blog is that while it may be true that abortions on demand could function in society, this functionality would not be an improvement to the current law. An amendment granting abortions is not necessary as it is not difficult for women who want an abortion (before twenty-four weeks of pregnancy) to get one, so abortions on demand simply could not be justified due to the potential detrimental side-effects discussed. The age-old saying stands true in this case: if it isn’t broken, don’t fix it.