4 February 2015
Britain’s abortion law - why doctors are so important
Jennie Bristow explains why clinical discretion is central to the Abortion Act.
In recent years, many of the controversies around abortion have focused not on the rights and wrongs of abortion itself, but on women’s reasons for terminating their particular pregnancies.
A debate is currently raging around the attempt by Fiona Bruce MP, chair of the All-Party Prolife Group, to bring an amendment to the Serious Crime Bill that would make abortion for reason of ‘sex selection’ a specific crime. The claim here is that Britain’s abortion law needs ‘clarifying’, to put onto the statute books ‘Nothing in section 1 of the Abortion Act 1967 is to be interpreted as allowing a pregnancy to be terminated on the grounds of the sex of the unborn child.’
On the face of it, this amendment is quite irrelevant. First of all, there is nothing in Section 1 of the Abortion Act that could be interpreted as ‘allowing a pregnancy to be terminated on the grounds of the sex of the unborn child.’ For an abortion to be authorised, a woman must meet one of seven legal grounds – reproduced below – none of which is to do with the sex of her fetus.
The amendment is also clearly premised on a particular (‘pro-life’) idea about abortion, which construes it as an offence against ‘the unborn child’. If nothing else, the language of the amendment should act as a red flag to those who support reproductive choice. Once a fetus is legally represented as an ‘unborn child’ in whatever context, the premise of legal abortion in any context is undermined – as we have seen in Ireland. This is presumably Bruce’s intention.
However, the campaign to make more explicit the abortion law with regards to sex selection has caused some confusion among those who would, broadly, consider themselves to be pro-choice. Many people hold an ethical objection to the idea that a woman might abort a pregnancy simply because the fetus is a girl (or, in some cases, a boy). They have been alarmed by the claim made by Fiona Bruce, the Daily Telegraph and other opponents of abortion that the law is ‘unclear’ on this matter; and further claims that women from some Asian communities are routinely having abortions in Britain on this basis.
There seems to be a sentiment that, if we agree that ‘sex-selective abortion’ is a problem, and if we agree that it is not legal for a woman to demand abortion based on the sex of her fetus, then what is the problem with strengthening the law in this respect?
What the law says
Part of the confusion here lies in understanding what the law actually says, and how it is designed to operate. This is due to the fact that the 1967 Abortion Act is premised on a high level of trust in the medical profession. It was written at a time when doctors were seen as the people best placed to decide whether a woman should be able to have an abortion: a decision that they were mandated to make according to their own professional assessment of each individual woman’s health and circumstances.
Thus, 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.
Section 1 (2) of the Act further 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.
There is nothing unclear about this law. In fact, compared to the tortuous complexity of many newer pieces of legislation, the 1967 Abortion Act is a model of clarity and good professional practice. It states that doctors must use their discretion to decide whether the physical or mental health of the woman sitting in front of them will be best aided by terminating the pregnancy, or carrying it to term.
In making that decision, a doctor will take a number of factors into account. One is the state of the woman’s physical health. And it is worth noting that, in 2015, a doctor would always be legally justified in authorising an abortion under Section 1(1)(a) of the Act – because, in 2015, abortion is generally safer than childbirth.
Yet because doctors and their clinical teams care about the woman sitting in front of them, they do not simply sign off a woman’s abortion request because it is statistically safer than childbirth. They also discuss the wider reasons why continuing the pregnancy might be a greater risk to a woman’s physical or mental health than having a termination. The most important of these reasons is to do with whether the pregnancy is wanted, or not.
Denying a termination to a woman who definitively does not want to continue her pregnancy is inhumane. The Abortion Act clearly gives doctors the discretion to make that judgement – if a woman does not want to be pregnant, forcing her to continue the pregnancy and to give birth is clearly not in the best interests of her physical or mental health.
On the other hand, if a woman is not sure about her decision, or has been coerced by her partner, family members, or others to request a termination, doctors and their clinical teams will be very wary of performing an abortion until they are sure that the woman has reached the decision that is right for her. In some cases, doctors will refuse to perform the abortion. In others, a woman will decide that she wants to continue her pregnancy after all.
The emphasis on ensuring that a woman has made the right decision for her emphatically does not mean that doctors and their clinical teams are responsible for ensuring that a woman has made the right decision per se. There are any number of circumstances in which a woman might be committed to terminating a pregnancy that another woman in similar circumstances might be desperate to keep. By a similar token, many women decide to have babies under circumstances that other women would see as an unequivocal reason to terminate the pregnancy.
A doctor might be personally conflicted by the particular reasons that a woman gives for needing a termination – but it is not for the doctor to act as a moral judge on the content of a woman’s decision. The doctor’s role is as a medical professional, whose concern begins and ends with his or her individual patient. So if the doctor thinks that the woman is making a bad decision, but is convinced that she has come to that decision herself and is determined to have a termination, it would be damaging to force her to continue the pregnancy.
The decisions that doctors face
Under the law, a doctor who is confronted with a woman demanding an abortion ‘because it’s a girl’ must refuse to authorise the procedure. This would be no different if the woman were to demand an abortion ‘because I was raped’, or ‘because I have three children under five already’, or ‘because my partner has been beating me up’, or ‘because I have to take my exams’, or ‘because I’m in my mid-forties and my family was completed years ago’, or any other conceivable, or sympathetic, reason that a woman could give for needing an abortion.
A doctor must refuse requests on these grounds because none of these requests are legal grounds for abortion. The 1967 Abortion Act emphatically does not make legal ‘abortion on request’: it is only legal when two doctors agree that the woman meets one or more of the legal grounds laid out at the end of this article.
Yet a doctor who point-blank refused to perform an abortion because the woman had given any of the reasons above would not be acting lawfully, either. The doctor must make his or her decision based on the relative risk to a woman’s physical or mental health of having an abortion versus carrying the pregnancy to term; and this decision can take into account the woman’s ‘actual or reasonably foreseeable environment’.
So if a doctor believed that a woman with three young children already would struggle, physically, emotionally, or financially, with a fourth baby, and if this woman really did not want a fourth baby just yet and is requesting a termination, how could this doctor, in good conscience, refuse her request for an abortion? If a forty-something mother of teenage children is worried about the impact of pregnancy on her own health, anxious about the risk of having a child with a disability, and really does not want another baby – how can the doctor, legally and morally, turn her down?
If a woman is being beaten up by her partner and knows that having a baby will destroy her chances of leaving him, thereby compromising her health further – how could the doctor tell her to have the baby? What if the woman does not want to leave her partner, or cannot leave him, but feels that continuing the pregnancy will make the situation worse? The doctor cannot change this woman’s circumstances – but he can permit her to have an abortion, rather than forcing her to carry the pregnancy to term.
These are the kinds of judgements that abortion doctors and their clinical teams have to make every single day. They are often painful, complex, and unhappy. In this context, it is not difficult to see how a woman’s decision to terminate a pregnancy might, in some particular circumstances, be bound up with an anxiety that she cannot have another girl, or another boy.
The abortion would never be authorised for that reason alone – but if that reason formed part of the larger reason why it would be better for a woman’s mental or physical health to terminate the pregnancy, provided this is her decision, then how could a doctor – legally or morally – suddenly apply a different set of criteria to this particular woman?
The significance of professional autonomy
The discussions that take place between doctor and patient are highly personal, and often involve weighing up a complex set of considerations and circumstances. This is why, when the 1967 Abortion Act was written, there was no list given of particular reasons why an abortion should or should not be authorised. To provide such a list would have undermined the clinical discretion of doctors and their clinical teams to make decisions based on their individual patients – and without that professional integrity, the law would not work at all.
Today, the law is no less clear than it was nearly 50 years ago. Doctors, nurses, and others working in the abortion service understand very well what it says, and work within the law to provide the best standard of care for their patients. However, to those who do not work within this environment, the Abortion Act’s emphasis on clinical discretion can seem perplexing, and out of sync with modern legal and medical practice.
In other areas of healthcare, doctors today are increasingly expected to play a role in correcting their patients’ choices or behaviours. Members of the medical profession often complain that their autonomy to practise in a way that they feel to be appropriate is being eroded, by the demands of monitoring, form-filling, and meeting wider public health objectives. Healthcare in general has become more bureaucratic, and subject to detailed laws and guidance.
The abortion service is not immune from these trends. Another fallacy promoted by opponents of the Abortion Act is that this piece of legislation is the only thing that regulates abortion care – the reality is very different. Abortion doctors, nurses and midwives are regulated by their professional bodies, and abortion services are centrally inspected by the Care Quality Commission and subject to stringent guidance by the Department of Health.
The Abortion Act is a piece of criminal legislation that regulates abortion on top of the kind of regulations that surround other medical procedures. Yet while abortion doctors are heavily regulated than many others, the legality of abortion rests on their ability to exercise their professional autonomy. This is the contradiction that lies at the heart of the current attacks on the Abortion Act; and the tension that doctors struggle with, heroically, every day.
The problem with the law
Pro-choice advocates have long argued that the 1967 Abortion Act is problematic, because it puts the abortion decision with doctors, rather than with the pregnant woman. It is fundamentally a paternalistic piece of legislation that presumes that pregnant women cannot decide for themselves to have an abortion, when that is what they feel they need to do.
It is bizarre that in the twenty-first century, we have a law that frames abortion as a crime, which is only legal in circumstances authorised by two doctors. Abortion today is safe, acceptable, and a normal part of life. It would be much better if abortion could be regulated as any other medical procedure. As we have noted above, this would still require a stringent set of regulations – but these would at least be grounded in patient safety and good clinical practice, rather than attempts to satisfy arcane legal requirements in the criminal statute.
Yet the problem with the Abortion Act does not lie with the doctors themselves. Doctors and their clinical teams are dedicated professionals, who are motivated by a desire to do what is best for their patients within the terms of the law. What the Act has done is to legislate for a space in which doctors and their patients can have an honest, private discussion about the woman’s health and circumstances, which then becomes the basis on which an abortion is, or is not, legal.
This has served women much better than a formal list of ‘good’ reasons for abortion, and a formal list of prohibited reasons, which would in no way take account of the complexities of women’s individual circumstances and needs. The only effect of reducing doctors’ professional autonomy to make judgements in this area would be to deny access to abortion for the very women who need it most: those with difficult lives, who do not come to the clinic equipped with ‘the right thing to say’.
Britain’s Abortion Law: What it says, and why. BPAS, 2013
Reproductice Review topic archive: Abortion laws
Reproductice Review topic archive: ‘Sex selection’ claims
The legal grounds for abortion
Under Section 1 of the 1967 Abortion Act, abortion is legal if it is certified by two registered medical practitioners under one or more of seven grounds, with at least one ground being the same. The legal grounds for abortion are:
A) the continuance of the pregnancy would involve risk to the life of the pregnant woman greater than if the pregnancy were terminated (Abortion Act, 1967 as amended, section 1(1)(c))
B) the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman (section 1(1)(b))
C) 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 (section 1(1)(a))
D) 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 any existing children of the family of the pregnant woman (section 1(1)(a))
E) 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 (section 1(1)(d))
or, in an emergency, certified by the operating practitioner as immediately necessary:
F) to save the life of the pregnant woman (section 1(4))
G) to prevent grave permanent injury to the physical or mental health of the pregnant woman (section 1(4)).
Grounds C and D apply to pregnancies before 24 weeks’ gestation. Ground E applies to pregnancies up to full term, but only in the case of a substantial risk of severe fetal anomaly.