The Construction of Woman
in Abortion Law
By Sally Sheldon
The following paper was given as part of a day
of discussion for staff and students at Kent University
Women's Studies Centre held in the Autumn Term 1997. The
day was about reproductive choice and was organised by Ellie
Lee, a student at Kent University and Co-Ordinator of Pro-Choice
There are various reasons to oppose the law regulating abortion
in Britain today as inadequate and inequitable.(1) Here
I want to focus on just one of those reasons, which I would
describe as the argument from principle. My argument is
that the current regulations governing abortion are fundamentally
predicated upon a particular way of thinking about women
in general and, in particular, the kind of woman who would
seek access to abortion services. I argue that this vision
of women should form the basis of a principled rejection
of the current law.
Regulations governing abortion.
Under the Abortion Act 1967, abortion is legal when a pregnancy
is terminated by a doctor, and where two doctors certify
that one of the following conditions is met:
a) risk to the woman's health or the health of any existing
children of her family (within a 24 week time limit)
b) risk of grave permanent injury to the physical or mental
health of the pregnant woman (no time limit)
c) risk to the life of the pregnant woman (no time limit)
d) substantial risk that if the child were born it would
suffer from such physical or mental abnormalities as to
be seriously handicapped (no time limit).
In ascertaining the existence of these conditions, doctors
are entitled to look at the 'actual or reasonably foreseeable
environment' of the pregnant woman. This law does not apply
to Northern Ireland where access to abortion remains extremely
If these regulations are examined within a comparative European
context, two things appear significant. First, is the question
of time limits. An upper time limit of 24 weeks, with abortions
available after that time in certain, extreme circumstances,
gives the impression of a comparatively liberal law. In
contrast to this, however, it is striking that there is
no provision for abortion on request in early pregnancy.
This is different from many of our European neighbours who
allow women a considerable degree of autonomy in early pregnancy.(2)
There is an apparent paradox then, between the relatively
liberal upper time limit and the illiberal refusal to recognise
women's autonomy in early pregnancy. Secondly, there are
some significant omissions from the 1967 Act. Many other
countries which have adopted the same model of regulating
abortion (a blanket ban with specified contraindications
where abortion will be permitted) also make provision for
abortion where the pregnancy results from either rape, or
where the socio-economic circumstances of the woman make
it impossible for her to have a child. These provisions
are here notable by their absence.
Having given a very brief outline of the British law, I
will now attempt to offer some explanation for why it took
this form. My claim is that the Abortion Act is influenced
by some fundamental assumptions regarding the kind of woman
who would seek access to abortions and the doctors who would
provide them. In particular, I will argue that the two features
which I have identified above as unusual in our legislation
- the seeming contradiction of the time limits and the 'missing
clauses' - can best be explained in this way. First then,
I will look at how women (and to a lesser extent doctors)
are constructed in the Parliamentary debates leading to
the introduction of the Abortion Act. I will then go on
to outline how the assumptions which are made about both
women and doctors are reproduced in the text of the Abortion
Constructions of women.
It is possible to identify two quite distinct images of
the woman seeking an abortion, as she is seen by the opponents
of reform and as she is constructed by the reformers.
The opponents of reform
The opponents see the woman as a minor in terms of immaturity
or underdevelopment with regard to matters of responsibility,
morality, and even to her very femininity or `womanliness'.
Her decision to abort is trivialised and denied rational
grounding, being perceived as mere selfishness: she will
abort, 'according to her wishes or whims', (3) for example,
in order to avoid the inconvenience of having to postpone
a holiday. She is immoral for being sexually active for
reasons other than procreation; she is irresponsible for
not having used contraception, and now for refusing to pay
the price for her carelessness; she is unnatural and `unwomanly'
because she rejects the natural outcome of sexual intercourse
for women: maternity. There is a hint that one day she will
come to realise the error of her ways and want children,
yet may be unable to have them as a result of the abortion.
Jill Knight (Con., Edgbaston), one of the leading opponents
of reform, plays heavily on the idea of the woman as selfish
and irresponsible within the debates leading to the 1967
Act. She reveals an image of women seeking abortion as selfish,
treating '[b]abies ... like bad teeth to be jerked out just
because they cause suffering ... simply because it may be
inconvenient for a year or so to its mother'.(5) She later
adds that '[a] mother might want an abortion so that a planned
holiday is not postponed or other arrangements interfered
with'.(6) The ability and willingness of the woman to make
a serious decision regarding abortion, considering all factors
and all parties is dismissed. Rather (like a child) she
will make a snap decision for her own convenience. The task
of the law is thus perceived essentially as one of responsibilisation:
if the woman seeks to evade the consequences of her carelessness,
the law should stand as a barrier.
People must be helped to be responsible, not encouraged
to be irresponsible ... Does anyone think that the problem
of the 15-year-old mother can be solved by taking the easy
way out? ... here is the case of a perfectly healthy baby
being sacrificed for the mother's convenience ... .For goodness
sake, let us bring up our daughters with love and care enough
not to get pregnant and not let them degenerate into free-for-alls
with the sleazy comfort of knowing, "She can always go and
have it out".(7)
As another MP comments, again with regard to whether abortion
should be allowed to a fifteen year old girl, 'one needs
to think twice before one removes all the consequences of
folly from people'.(8)
Several participants in the Parliamentary debates give voice
to an implicit assumption that it is morally wrong for women
to make a distinction between sex and procreation - women
should not indulge in sex, if pregnancy is not desired.
William Deedes (Con., Ashford) makes these sentiments clear
in expressing his concern that: 'science and its little
pill will enable so-called civilised countries to treat
sex more and more as a sport and less and less as a sacrament
in love, a divine instrument of procreation'.(9) Perhaps
the single most telling quotation here comes from David
Steel himself, defending a clause to allow abortion in cases
of rape, which was eventually dropped after debate in Parliament,
for reasons which will be further developed below. He states,
[m]ost honourable Members would agree that to have a woman
continue with a pregnancy which she did not wish to conceive,
or in respect of which she was incapable of expressing her
wish to conceive, is a practice which we deplore, but the
difficulty is to find an acceptable wording which will enable
termination to be carried out following sexual offences
of this kind but which does not allow an open gate for the
pretence of sexual offences.(10)
What is startling here is Steel's correlation of 'a pregnancy
which she did not wish to conceive' with conception following
rape. Steel fails to imagine that the vast majority of requests
for abortion will be for pregnancies that the woman did
not wish to conceive. In using this argument to justify
abortion in cases of rape, he implicitly equates consensual
intercourse with desired conception. Wanting sex equals
wanting pregnancy equals wanting motherhood.
The second narrative account strongly present in the Parliamentary
debates is that of the woman as a victim of poverty and
harsh social circumstances.(11) This construction is typically
that of the reforming forces, where the woman and her social
situation enjoy a far more central place. The reformers
here seek to capitalise on the public sympathy for women
facing unwanted pregnancy. Newspapers, magazines and books
had reported horror stories of backstreet and self-induced
abortions and, as David Steel tells the House of Commons,
in the years preceding the introduction of the Abortion
Act, an average of thirty women per year were dying at the
hands of criminal abortionists.(12) Further, the well publicised
thalidomide cases had contributed to public sympathy for
the woman carrying a handicapped foetus.
The image of the woman seeking abortion here draws her as
'not only on the fringe, but [as] literally, physically
inadequate'.(13) She is presented as distraught, out of
her mind with the worry of pregnancy (possibly because she
is young and unmarried, but normally because she already
has too many children). She is desperate, and should the
doctor not be able to help her, her potential actions are
unpredictable (suicide is discussed).(14) Her husband is
either absent or an alcoholic, her housing situation is
intolerable. She is at the end of her tether simply trying
to hold the whole situation together. As Madeleine Simms,
of the Abortion Law Reform Association, later wrote: '[i]t
was chiefly for the worn out mother of many children with
an ill or illiterate or feckless or brutal or drunken or
otherwise inadequate husband that we were fighting'.(15)
Lord Silkin was one of the most eloquent exponents of this
narrative, and he had many opportunities to develop it during
the passage of his Bill through the House of Lords.(16)
The following letter, which he read to the House of Lords
during the second reading of his own Bill, provides a typical
and tragic illustration of the woman to be helped as she
was envisaged by the reformist forces.
Dear Lord Silkin, I am married to a complete drunk who is
out of work more than he is in. I have four children and
now at 40 I am pregnant again; I was just beginning to get
on my feet, and get some of the things we needed. I've been
working for the last three years, and cannot bear the thought
of that terrible struggle to make ends meet again. I've
tried all other methods that I've been told about; without
success, so as a last resort I appeal to you - please help
me if you possibly can.(17)
Worries for the health of the woman are related back to
concern for the well-being of the family. One particularly
tragic story is told by Lena Jeger, MP. An 'honest young
woman' with five children, recently deserted by her husband,
was refused an abortion because 'she did not seem quite
depressed enough'. The woman was forced to continue the
pregnancy, and her depression following the birth of her
sixth baby was so extreme, that she killed the baby by throwing
it on the floor. The woman was now in Holloway prison, the
children in care.(18) Lord Strange notes that 'nearly every
woman in this condition [of unwanted pregnancy] would be
in a state bordering on suicide'.(19) The woman's irrationality
is sometimes conceptually linked to her pregnant condition,
as David Owen states, for example, '[t]he reproductive cycle
of women is intimately linked with her psyche'.(20) This
pathologises women, playing on the notion of female behaviour
as dominated and controlled by biology.
Women as natural mothers: opponents and reformers.
Both reformers and opponents of reform are united in a view
of women as mothers. For the conservatives in 1966-7, the
woman who rejects maternity is seen to reject the very essence
of womanhood. Kevin McNamara (Lab., Hull N) provides a strong
account of woman's maternal instinct,
[h]ow can a woman's capacity to be a mother be measured
before she has a child? Fecklessness, a bad background,
being a bad manager, these are nothing to do with love,
that unidentifiable bond, no matter how strange or difficult
the circumstances, which links a mother to her child and
makes her cherish it.(21)
This implicit assumption of woman as mother is further reflected
in the consideration of her existing responsibilities to
children and family (and an apparent inability to see her
outside of this role of wife and mother). Jill Knight informs
us that, 'if it comes to a choice between the mother's life
or the baby's, the mother is very much more important'.
This is not, according to Knight, because she is more important
in her own right, but rather because '[s]he has ties and
responsibilities to her husband and other children'.(22)
The reformists seek to capitalise on the idea of maternity
as the female norm. In defending the need for a social clause
(to allow abortion where the woman's social and economic
circumstances are deemed inadequate) within the Act, Roy
Jenkins (Lab., Birmingham, Stechford, Home Secretary) argued
that without the presence of such a clause, 'many women
who are far from anxious to escape the responsibilities
of motherhood, but rather wish to discharge their existing
ones more effectively, would be denied relief'.(23) Another
MP asserts in similar vein that,
in many cases where we have over-large families the mother
is so burdened down physically and emotionally with the
continual bearing of children that it becomes quite impossible
for her to fulfil her real function, her worthwhile function
as a mother, of holding together the family unit, so that
all too often the family breaks apart, and it is for this
reason that we have all too many problem families in many
parts of the country.(24)
The construction of the doctor.
These images of the woman as selfish irrational child and
desperate victim are contrasted against the cool impassive
figure of the doctor. The doctor represents a calm, responsible,
rational and reassuring figure - everything that the woman
is not. He is without doubt a male figure(25) who is perceived
as the epitome of maturity, common sense,(26) responsibility
and professionalism. He is a 'highly skilled and dedicated',(27)
'sensitive, sympathetic'(28) member of a 'high and proud
profession'(29) which acts 'with its own ethical and medical
standards'(30) displaying 'skill, judgement and knowledge'.(31)
Regulating abortion/regulating women
The abortion decision.
On the basis of these constructions of women and doctors,
the reformers were successfully able to argue that it was
better to get women into the safe hands of their GPs, who
could take control and `manage' the pregnancy in the best
interests of the woman herself, her family and the broader
society. 'If we can manage to get a girl such as that into
the hands of the medical profession, the Bill is succeeding
in its objective', argues David Steel.(32) And as Dr Winstanley
points out, '[i]n every case the duty of the medical practitioners
should be, wherever possible to encourage aid and support
the mother towards term with the pregnancy'.(33)
Given the assumptions made regarding women seeking abortion
in these debates, it is not surprising that Parliament agrees
that abortion decisions are best located in the hands of
doctors. The female subject conceived of within the Abortion
Act is clearly someone who cannot take decisions for herself.
Rather responsibility is handed over to the reassuringly
mature and responsible (male) figure of the doctor. Thus,
the legislation here assumes that the doctor will be better
equipped to judge what is best for the woman, even though
he may never have met her before and may have neither knowledge
of, nor interest in, her concrete situation. The entrenchment
of such a construction in law fits precisely with the images
of woman deployed in the debates. If the woman is distraught
and irrational, then she is an unsuitable party to take
such an important decision. Indeed she inevitably and inherently
lacks the necessary emotional distance to make such a choice
in a considered way. Equally, if she is selfish and self-centred,
intellectually and morally immature, considering only her
own needs, and giving no weight to other factors (such as
the claims of the foetus) in her snap decisions, she is
again incapable of making such an important choice. She
is thus in need of the normalising control of the doctor
to impose either calm and rationality or moral deliberation
and consideration of the interests of others.
On the basis of these constructions of women and doctors,
the 1967 Act adopts a model of medical control of abortion.
The abortion is seen as falling within the competence of
doctors, as being a decision which is too important or difficult
to be taken by women. In this light, the seeming paradox
of the liberal upper time limit and illiberal failure to
recognise women's autonomy in early pregnancy loses its
mystery. By maintaining a high upper time limit, the autonomy
of doctors to act in the best interests of their patients
is protected. This is completely consistent with a refusal
to recognise women's autonomy in early pregnancy.
The 'illiberal' refusal to allow women to make choices in
early pregnancy and 'liberal' upper time limit both serve
to protect and entrench medical control and to ensure that
doctors are not reduced to the role of mere technicians.
The effect of the concern with protecting medical discretion
can be seen even more clearly in the 1990 parliamentary
debates, when the Abortion Act was reformed.(34)
The two clauses allowing termination where pregnancy resulted
from rape or where the woman's social or economic situation
made it difficult for her to care for (another) child were
included in the original Steel Bill, but were eventually
deleted following opposition from all of the major medical
bodies. The bodies were concerned that women might interpret
the clauses to mean they had a right to demand abortions
where the circumstances outlined were met.(35) For example,
the Royal Medico-Psychological Association warned that:
[s]pelling out in detail when a doctor should or should
not have the right to induce abortion, even if the legislation
is cast in permissive terms, would have the effect of introducing
an element of coercion in the sense that in each defined
situation the patient might reasonably expect the doctor
to acquiesce and the role of the surgeon or gynaecologist
would be reduced that of a technician carrying out an objectionable
Accordingly, in the words of two commentators, the law was
left 'vague and fuzzy so that doctors would have total discretion
in the matter of abortion and so that patients would be
unable to argue.'(37)
It was also argued that in case of rape, abortion would
already be available under other provisions, notably the
risk to the woman's mental health. To remove the clause
would mean that women would not feel they had an automatic
right to termination in these circumstances and would minimise
the risk of their fabricating stories of rape in order to
qualify for an abortion.(38) One academic commentator explains
the decision not to include a specific rape clause in that
were it to be included: ' women would have a stronger inducement
to allege that an unwanted or embarrassing pregnancy had
been imposed by rape.' He goes on:
[t]his crime always poses problems of definition. The differences
between rape and determined `masculine' seduction can be
fine, and the presence or absence of consent can sometimes
be impossible to find conclusively. Further, a woman may
provoke her own rape by finally withholding consent from
a man who is unable to control the passion she has deliberately
aroused. At present, charges of rape are occasionally found
where a woman wishes to protect her reputation, for example,
where she is unmarried, but the prospect of having the pregnancy
terminated, without anyone having to be prosecuted or convicted,
would be an attraction which some women might find hard
Just a history lesson?
In this paper, I have identified certain constructions of
women and doctors which are present in Parliamentary debates
and have attempted to show how these have impacted on the
form taken by one statute: the Abortion Act 1967. The fact
that I have dealt with events which are now some 30 years
distant, however, should not suggest that the above is little
more than a history lesson. Indeed, it is possible to identify
the same assumptions regarding women who seek abortion in
current media representations of women seeking abortion.(40)
More important, though, is the fact that the 1967 Act continues
to provide the basis for the regulation of termination services
in Britain. It has been modified only once, in a way which
fully accepted the general form of the legislation voted
onto the statute books in the 1960s. The law which is based
on these assumptions about women is still in force and continues
to have a major impact on the lives of hundreds of individual
women every day. If the assumptions upon which the 1967
Act is predicated are accepted to be inaccurate, sexist
and offensive (as I believe they are), then there is every
reason for a principled rejection of the law.
Finally, I believe that there are also more practical reasons
for challenging the 1967 Act. The effect of the Act has
been to deliver women from the backstreets, into the hands
of the medical profession: to enforce a medicalised understanding
and control of abortion. This medicalisation has had advantages
in ensuring, entrenching and protecting some access to abortion
services whenever this has been challenged in either Parliament
or the courts. However, medicalisation also presents enduring
problems. Notably, it has left access to abortion services
dependent on the vagaries of medical goodwill. This has
meant that whilst some women have good experiences of abortion
services, others most certainly do not. Access to abortion
services in Britain remains characterised by large regional
variations in NHS funding, leading to gross unfairness between
individuals. And the whole experience of seeking an abortion
remains a far more unpleasant, intrusive and traumatic one
for some women than it should be.(41)
(1)The arguments in this paper are explained in considerably
more detail in S. Sheldon, Beyond Control: Medical Power
and Abortion Law, London: Pluto.
(2) For example, in France the woman is legally entitled
to a termination within the first 12 weeks of pregnancy
where she defines herself as being in a 'situation of distress'.
This does not mean that she will not face considerable practical
difficulties in obtaining a termination. See D. Simmonot,
'Avortements: le retour a l'étranger', Libération, 3 March
(3) Mahon, H.C. Deb. Vol. 750, Col. 1356, 1967 (13 July).
(4) See for example the comments of Knight, H.C. Deb. Vol.
749, Col. 932, 1967 (29 June), Glover, H.C. Deb. Vol. 749,
Col. 971, 1967 (29 June).
(5) Knight, H.C. Deb. Vol. 732, Col. 1100, 1966 (22 July).
(6) Knight, H.C. Deb. Vol. 749, Col. 926, 1967 (29 June).
(7) Knight, H.C. Deb. Vol. 732, Col. 1101, 1102-3, 1966
(8) Maude, H.C. Deb. Vol. 732, Col. 1121, 1966 (22 July).
(9) Deedes, H.C. Deb. Vol. 732, Col. 1092, 1966 (22 July).
(10) H.C. Deb. Vol. 730, Col. 1075, 1966 (22 June).
(11) It seems clear that not all of those active in the
debates shared the vision of those women seeking abortion
as somehow deviant and aberrant which I will discuss below.
Madeleine Simms was a founding member of the Abortion Law
Reform Association, which spearheaded the campaign for the
decriminalisation of abortion. In 1971, in a book co-authored
with Keith Hindell, she notes that the reformers did consider
the situation of the ordinary woman who simply did not want
to give birth, and that one wing of the reform movement
did feel there was a need for abortion for all on request.
They acknowledged, however, that politically this idea was
far too radical to gain public acceptance and parliamentary
approval. It was obvious throughout the reform campaign
that they would only be able to carry the country with them
if they concentrated on the hard cases. See K. Hindell and
M. Simms (1971) Abortion Law Reformed (London: Peter Owen)
at p. 25.
(12) H.C. Deb. Vol. 750, Col. 1350, 1967 (13 July).
(13) V. Greenwood and J. Young (1976) Abortion in Demand
(London: Pluto) at p. 76.
(14) See for example, Strange, H.L. Deb. Vol. 274, Col.
1235, 1966 (23 May).
(15) Simms, M. 'Legal Abortion in Great Britain', in Homans,
H. (ed.) The Sexual Politics of Reproduction (Hants, Gower)
(16) Silkin dropped his Bill so that the reformers could
concentrate on getting the Steel Bill through the House
of Commons (see Hindell and Simms, op. cit., 1971, p. 154).
(17) Cited in Hindell and Simms, op. cit. 1971, p. 80.
(18) H.C. Deb. Vol. 749, Col. 977-8, 1967 (29 June).
(19) H.L. Deb. Vol. 277, Col. 1235, 1966 (23 October).
(20) H.C. Deb. Vol. 732, Col. 1113, 1966 (22 July).
(21) H.C. Deb. Vol. 732, Col. 1129, 1966 (22 July).
(22) H.C. Deb. Vol. 732, Col. 1104, 1966 (22 July).
(23) H.C. Deb. Vol. 732, Col. 1144, 1966 (22 July).
(24) Dunwoody, H.C. Deb. Vol. 732, Col. 1098, 1966 (22 July).
(25) Doctors are referred to as 'medical men', 'professional
medical gentlemen' and 'professional men'. They are always
referred to as 'he' within the 1996-7 debates.
(26) Steel, H.C. Deb. Vol. 747, Col. 463, 1967 (2 June).
(27) Mahon, H.C. Deb. Vol. 750, Col. 1352, 1967 (13 July).
(28) Raglan, H.L. Deb. Vol. 274, Col. 591, 1966 (10 May).
(29) Lyons, H.C. Deb. Vol. 732, Col. 1090, 1966 (22 July).
(30) Steel, H.C. Deb. Vol. 747, Col. 464, 1967 (2 June).
(31) Hobson, H.C. Deb. Vol. 747, Col. 531, 1967 (2 June).
(32) H.C. Deb. Vol. 750, Col. 1349, 1967 (13 July).
(33) H.C. Deb. Vol. 749, Col. 1055, 1967 (29 June).
(34) See Sheldon, op.cit., chapter 6.
(35) Keown, J. (1988) Abortion, Doctors and the Law: Some
Aspects of the Legal Regulation of Abortion in England from
1803 to 1982 (Cambridge: Cambridge University Press), at
(36) Keown, ibid., at p. 89. Keown provides examples of
the same objects from a host of other medical organisations.
(37) Hindell and Simms, op.cit. at p. 185.
(38) The idea that the women might fabricate charges is
put forward several times in the parliamentary debates.
(39) Dickens, B.M. (1966) Abortion and the Law (Bristol:
MacGibbon and Kee Ltd) at p. 139.
(40) See for example the Bennett and Allwood cases, discussed
in Sheldon, op. cit., at pp. 90-5. 41.