10 February 2015
Commentary: Criminalising women to protect them? Abortion law proposal is seriously flawed
Sally Sheldon, Professor of Law at the University of Kent, writes on The Conversation.
As a group led by Conservative MP Fiona Bruce attempts to clarify the law on abortions based on a foetus’s gender, there have been many assertions that a change would play no useful role in ending gender discrimination.
And indeed, a close look at the amendment scheduled for debate on February 23 makes it difficult to see exactly what it is trying to achieve. Paradoxically, for an amendment explicitly intended to “clarify” the law, its legal impact is far from clear.
What will the amendment achieve?
Let’s start with a technical problem with the amendment being put forward by Bruce. It states that none of the grounds for abortion that are set out in section one of the 1967 Abortion Act should be “interpreted as allowing a pregnancy to be terminated on the grounds of the sex of the unborn child”.
In the technical sense, the “grounds” are the specific bases upon which an abortion can be authorised, as set out in section one. Most abortions are performed on the first of these grounds: that continuing the pregnancy poses a greater risk to the woman’s health than a termination would. The other grounds relate to more serious risks to the woman’s life, mental or physical health, or substantial risk of serious foetal anomaly.
In one sense, the Bruce amendment is thus harmless, if entirely redundant. Sex selection has never been one of the “grounds” for abortion and it is already clearly impossible to interpret the Act to say that it is.
Possibly what Bruce intends is rather to use the word “grounds” in a broader, non-technical sense, to make it clear that the sex of a foetus should not be treated as justification for a termination under any of the grounds set out in section 1. But this hardly helps to clarify the law.
Currently, the sex of a foetus is not an independent ground for abortion and cannot be the sole reason for a termination. But women rarely present with one straightforward reason for seeking an abortion. The current law does not exclude the possibility that foetal sex may be considered as part of a more complex bundle of other factors. A woman might, for example, fear violence and abuse if she gives birth to a female child. She might have been sexually assaulted and feel unable to carry a male foetus.
Were Bruce’s amendment to be introduced, it would be unclear whether this would continue to be the case or if the mere fact that a woman has mentioned foetal sex along with other reasons means that she must immediately be shown the door.
Equally concerning is the fact that, either by accident or design, Bruce’s amendment is drafted so as also to apply to terminations authorised on the grounds of foetal anomaly. Many devastating anomalies linked to the X chromosome – such as some cases of X-linked infantile spinal muscular atrophy – aren’t diagnosable before birth.
In these cases, the only way for at-risk parents to avoid the birth of a severely impaired child is to test for, and terminate on the basis of, foetal sex.
A large majority of the British public support abortion on the grounds of disability and no justification has been offered for denying this one specific group of parents the right to make this choice.
Protection via criminalisation?
The suggestion that this measure is necessary to enable the government to act to combat prejudice and anti-women violence is specious. Bruce has argued that changing the law is necessary to protect women who are coerced or bullied into ending what would otherwise be desired pregnancies.
But if it achieves anything, the effect of Bruce’s amendment is to remove the protection of the Abortion Act from women who terminate pregnancies and the health care professionals who care for them, leaving each liable for a criminal offence that carries a potential twelve-year prison term. It is perplexing in the extreme to seek to help such women by exposing them to threat of prosecution. Meanwhile, the amendment will make no difference whatsoever to the criminal liability of a violent, abusive or coercive husband who forces his wife to terminate a desired pregnancy.
If Bruce were serious about protecting women, there is another part of the Serious Crime Bill that would have offered the perfect vehicle for an amendment aiming to achieve just that: the section that creates a new offence of “controlling or coercive behaviour in an intimate or family relationship”.
And, should it wish to do so, the government is already able to launch public information campaigns, ensure adequate funding for support services for women fleeing domestic violence and inspect clinics to make sure they have robust procedures in place for ensuring that women’s decisions about abortion are voluntary.
How cruelly ironic if parliament should try to protect vulnerable women by bringing them within the remit of the criminal law, while leaving those who coerce them to end desired pregnancies to go scot free.