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8 January 2014

Abortion law: the lessons from Spain

In an unstable climate, neither legal principles nor political pragmatism can prevent women and doctors from finding themselves suddenly exposed to criminal sanction. By Jennie Bristow, editor, Reproductive Review.

The Spanish government’s approval of a restrictive new abortion law has, reports the Financial Times, ‘raised eyebrows in several EU capitals’.  Tim Montgomerie, comment editor of the London Times, wrote on 26 December that this recent drastic reform to the abortion law shows that there is a wider appetite to restrict provision.

Montgomerie points to the recent tensions between abortion providers and politicians in Britain, which have emerged around newspaper allegations of ‘sex-selection abortion’ and the pre-signing of abortion authorisation forms, as a way of arguing that ‘the ground is shifting in the abortion debate’, and that there is a ‘slow and steady concession’ to the idea that there needs to be greater restrictions on abortion provision.

Montgomerie’s assertions tell us little about public opinion on abortion in Britain. Ultimately the best marker we can have on attitudes to abortion is the number of women who need it, which remains stable, at around 190,000 per year. But Montgomerie’s comments do reveal the trajectory of those around the British government who have made it a mission to problematise abortion.

The British 1967 Abortion Act, like the 1985 Spanish abortion law up until 2007, has been interpreted liberally, on the assumption that it is more harmful to a woman’s health to carry an unwanted pregnancy to term and bear and child than it is to terminate the pregnancy if she wishes to do. There is nothing untoward about this interpretation: as the legal scholar Sally Sheldon explains, ‘[a]ccording doctors the discretion to determine when abortion is indicated is… fundamental to the operation of the legislation’. But it also the case that doctors working within both the letter and spirit of the law are vulnerable to misinterpretations and reinterpretations by politicians.

This was the lesson of 2012, when the then health secretary, Andrew Lansley, ordered the regulator, the Care Quality Commission (CQC), to conduct a shock wave of inspections on abortion clinics following a sting operation by the Daily Telegraph newspaper into ‘sex selective abortion’, which also involved an investigation by the police. The upshot of the Lansley raid was that the Crown Prosecution Service (CPS) ruled that it was not in the public interest to prosecute the two doctors implicated in the Telegraph sting, and while the CQC found some irregularities in paperwork in a small proportion of NHS abortion services, it found no evidence of illegally authorised abortions.

Nonetheless, this whole episode has had a chilling effect on doctors and clinics, who are now continually aware that the basis of their lawful and professional practice may be challenged by journalists or politicians with an agenda to push.

In Spain, police raids of abortion clinics in 2007 led to clinics calling for the law of 2010, which gave women abortion on demand in the first 14 weeks of pregnancy and provided doctors with some legal clarity and protection. Unfortunately, the rapid overturning of this law indicates that in an unstable climate, neither legal principles nor political pragmatism can prevent women and doctors from finding themselves suddenly exposed to criminal sanction.

This is a problem of instability rather than conspiracy; of changes in political influence rather than changes in public opinion. But for women with unwanted pregnancies and the doctors who care for them, it is no less dangerous for that.

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Also read:

Q&A – The Spanish abortion law. Reproductive Review, 7 January 2014

Britain’s Abortion Law: What it says, and why. bpas, May 2013