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18 May 2014

Q&A – Britain’s abortion law

This Q&A explains what does the 1967 Abortion Act does; what it means for doctors to 'act in good faith'; what 'risk to health' means; why it is legal to terminate a pregnancy because of a woman's social or financial circumstances; the legal situation surrounding abortion for fetal sex and the pre-signing of authorisation forms; and why the British law does not give women 'abortion on demand'.

1) What does the Abortion Act do?

The 1967 Abortion Act renders lawful activities that would otherwise constitute a crime under the Offences Against the Person Act (OAPA) 1861. The OAPA makes it a crime for a woman to ‘procure a miscarriage’, or for another person to help her do so.

The Abortion Act 1967 (as amended by the Human Fertilisation and Embryology Act 1990) states that an abortion is legal if it is performed by a registered medical practitioner (a doctor), and that it is authorised by two doctors, acting in good faith, on one (or more) of the following grounds (with each needing to agree that at least one and the same ground is met):

(a) that the pregnancy has not exceeded its twenty-fourth week and 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; or

(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or

(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or

(d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.

The 1967 Act does not apply to Northern Ireland, where the abortion law remains governed by the Bourne Decision. (1)

2) What does it mean for doctors to ‘act in good faith’?

To show that an opinion has been formed ‘in good faith’ does not mean that authorising an abortion must be the ‘right’ course of action, simply that the doctor has not been dishonest or negligent in forming that opinion. What makes an abortion lawful is the doctor’s opinion that there are lawful grounds for the procedure, rather than the fact that those grounds exist.

So, for example, if two doctors believe in good faith that abortion carries less risk to a woman’s physical or mental health than carrying the pregnancy to term, this makes the abortion legal – even if, in the eventuality, it would have been safer to carry the pregnancy to term (for example, if the abortion resulted in death or injury). Similarly, if a woman states that she cannot afford to continue the pregnancy, the doctor is not obliged to check that she really is lacking in funds.

3) What does ‘risk to health’ mean?

These circumstances under which doctors can authorise an abortion include risk to a woman’s physical or mental health, which, under Section 1(1)(a), is defined relative to the risk of giving birth. Prior to 1967, it was already established in law, by the 1938 Bourne decision (1), that an abortion was legal if the doctor was ‘of the opinion on reasonable grounds and with adequate knowledge of the probable consequences’ that continuing the pregnancy would ‘make the woman a physical or mental wreck’. This was significant because it confirmed that the grounds for a lawful abortion extended not merely to saving the woman from death but also to considering her mental and physical wellbeing.

The 1967 Abortion Act took the concept of wellbeing further, by indicating that an abortion was lawful if ‘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’ (emphasis added). In 2012, medical evidence is clear that, purely on a physical level, abortion carries less risk of maternal mortality and morbidity than does childbirth. In terms of mental health impacts, authoritative reviews of the evidence in the USA and Britain are clear that aborting an unwanted pregnancy has no adverse psychological sequelae, compared to carrying that pregnancy to term. (2)

Thus it could be argued that any abortion carried out under Section 1(1)(a) (the ground on which 98 per cent of abortions are carried out) would always be lawful, provided the authorising doctors were acting on the basis of a good faith reliance on this medical evidence base.

4) Is it legal to terminate a pregnancy because of a woman’s social or financial circumstances?

Yes. This is provided by Section 1 (2) of the Abortion Act, which states that doctors may take account of the pregnant woman’s actual or reasonably foreseeable environment when making a decision about the impact of the continuance of a pregnancy on a woman’s health.

Here again, the law bestows upon doctors a gatekeeping role in terms of deciding who may have an abortion, but within that role provides for a great deal of latitude in making their decision. The law does not state that doctors ‘must’ take account of a woman’s environment, but that they ‘may’ do so. There is an implicit recognition that it is not always possible to separate the mental or physical health effects of abortion from a woman’s wider social circumstances - such as her income, her housing situation, her support network. Doctors may take all this into account in determining whether to authorise an abortion.

Thus, it would be entirely reasonable for a doctor to decide that a woman who presents for an abortion saying that she cannot afford to continue the pregnancy can lawfully be provided with the abortion, as to refuse her might have relatively negative consequences for her health.

5) Is abortion for reason of fetal sex illegal under the Abortion Act?

No. The law is silent on the matter. Reason of fetal sex is not a specified ground for abortion within the Abortion Act, but nor is it specifically prohibited. Other reasons for abortion that are widely accepted as ‘good’ reasons - for example, if the woman has been raped - are not specified either.

Part of the reason why some initially claimed that it is illegal to authorise an abortion for reason of fetal sex was because of a confusion with another piece of legislation. The Human Fertilisation and Embryology (HFE) Act 1990 (as amended, 2008), which regulates fertility treatment, prohibits preimplantation genetic diagnosis (PGD) for the purpose of non-medical sex selection. However this provision does not apply to abortion.

6) Does the fact that there is such broad discretion for authorising abortions mean that British women have access to ‘abortion on demand’?

No. The construction of the law around a doctor’s good faith opinion was motivated firstly by a concern about the health consequences of unwanted pregnancy and backstreet abortion for women and their families, and secondly by an unwillingness to legislate for abortion on demand. Women in Britain cannot obtain abortions ‘just because’ they want them – doctors have to agree that they are warranted. That there is no right to abortion on demand is illustrated in three ways.

First, the law makes very clear that the decision rests with two doctors, according to their own judgement about the impact of abortion versus childbirth on the woman’s physical or mental health.

Second, on the question of the woman’s social circumstances, the law does not state that doctors ‘must’ take account of a woman’s environment, but that they ‘may’ do so. This means that doctors are not compelled to take these broader factors into account.

Third, the Abortion Act allows doctors the right to conscientious objection to authorising or performing abortions, except where this is necessary to save the woman’s life or to prevent grave, permanent injury to her health. This means that women do not have the right to demand that any doctor performs an abortion for her.

The fact that women do not in practice have access to ‘abortion on demand’ was well illustrated by the Daily Telegraph ‘sting’ operation, of 2012, in which an undercover journalist visited a number of clinics asking for an abortion on the grounds of fetal sex. In all but three cases, the doctors refused to authorise the request because they did not believe it was right to do so.

7) Do doctors have to examine the woman in person before signing the HSA1 form?

The Abortion Act legislates that two doctors must decide ‘in good faith’, that a woman meets the legal requirements for an abortion. It also requires the government to make further provision regarding the certification of such decisions. These regulations regarding certification currently provide that two doctors must specify on what ground/s an abortion can be provided (with both needing to agree that at least one and the same ground is met) along with providing other prescribed information. Current regulations stipulate that they can do so through filling in a particular official document – the HSA1 form; or by providing the same information on signed certificates.

It was established in the 1981 case Royal College of Nursing of the United Kingdom v. Department of Health and Social Security that abortion should be considered as a procedure that would be carried out by a medical team comprising doctors, nurses, midwives, and other qualified staff, acting in accordance with good medical practice; and that while a doctor should accept responsibility for ‘all stages of the treatment for the termination of pregnancy’, he/she did not personally have to conduct every stage of the procedure.

Therefore it has, for many years, been considered good practice for doctors to rely on the information gathered by other members of their team in determining whether a woman meets the criteria for an abortion, just as it is considered good practice for nurses to administer medications.

There is no legal requirement for the doctor personally to examine the woman, or review her records in depth. That is why there is the option, on the HSA1 form, for both doctors to certify that they have not seen or examined the woman.

8) Is pre-signing HSA1 forms illegal?

While the Abortion Regulations provide that the form must be completed before treatment is provided, there is no specific legal prohibition of pre-signing and, indeed, it has been suggested that this practice is clearly legal when done to facilitate speedy treatment of a woman in some circumstances (eg where the doctor pre-signs forms knowing that s/he will be away from a clinic, with the intention of discussing the cases by telephone with a colleague, who can then complete other details with the doctor’s approval).

The legality of pre-signing forms on the basis of a good faith reliance on the fact that early termination is statistically safer than continuing a pregnancy is less clear. The fact that the HSA form requires specific information regarding the individual patient might serve to suggest that the judgement must be an individualised one concerning the specific woman seeking an abortion.

However, while pre-signing forms on this basis is not advisable, there appears to be nothing on the face of the statute to prohibit it.

This Q&A is taken from Britain’s Abortion Law: What it says, and why, in which legal scholars explain that the attacks on Britain’s abortion service in 2012 were based on a misunderstanding of the law, both in spirit and in practice. It can be downloaded for free here.

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(1) The 1938 Bourne Decision. In England, in 1938, Dr Alex Bourne deliberately challenged the law in order to clarify what constituted legal practice in relation to abortion when the abortion was not directly necessary to save the woman from death. He carried out an abortion on a 14-year-old rape victim, and at the subsequent trial brought evidence that if the young woman had been forced to continue with the pregnancy she would have become a mental and physical wreck. Dr Bourne was acquitted. At the trial Judge McNaghton restated that the law allows termination of a pregnancy for preserving the life of the mother and continued:

‘I think those words [that the law allows termination of pregnancy for preserving the life of the mother] ought to be construed in a reasonable sense and, if the doctor is of the opinion on reasonable grounds and with adequate knowledge of the probable consequences, that continuing the pregnancy would be to make the woman a physical or mental wreck, the jury are quite entitled to take the view that the doctor who, under those circumstances and in that honest belief, operates is operating for the purpose of preserving the life of the mother.’

(2) The Care of Women Requesting Induced Abortion - full guideline. Royal College of Obstetricians and Gynaecologists, November 2011.

Induced Abortion and Mental Health: A systematic review of the evidence - full report and consultation table with responses. Academy of Medical Royal Colleges (AoMRC), December 2011.