Who should decide what
abortion laws we should have - unelected judges or parliament?
By Barbara Hewson
The legal challenge by the Reverend Joanna Jepson to a late
termination for fetal abnormality received an unexpected green
light from two judges in the Administrative Court on 1 December
- setting the scene for a showdown in the courts about the
state of Britain's abortion laws. Might this be the UK's Roe
v Wade in reverse (1)
The facts of the case are
not especially favourable to Jepson, who started an action
in September 2003. She wanted a judicial review of the West
Mercia Constabulary's decision not to prosecute two doctors,
in the Birmingham area, who performed an abortion on a fetus
of over 24 weeks for cleft palate in 2001. The West Mercia
police had gone to the trouble of obtaining a letter from
the vice president of the Royal College of Obstetricians and
Gynaecologists, who did not criticise the doctors' decision
Clearly they thought that
there was no evidence to warrant charges being brought. If
they had believed there were serious grounds for concern they
could have sought the views of the Crown Prosecuting Service
(CPS) which is always consulted before serious charges are
brought. But it seems that they had not even thought it necessary
to trouble the CPS.
So how did the case leap forward?
Over the weekend, Jepson's legal team radically recast her
legal argument. They argued that the Court should allow a
legal challenge on the compatibility of section 1(1)(d) of
the Abortion Act 1967, which allows abortion for fetal abnormality,
with the Human Rights Act 1998, which makes the European Convention
on Human Rights part of domestic law The West Mercia Constabulary
should then be asked to review their decision, following the
court's subsequent judgement.
According to Jepson's lawyer,
when a pregnant woman is diagnosed with a fetal abnormality,
her views, needs and wishes are irrelevant. The only issue
for the doctors to decide is whether there is a 'substantial
risk' that the child, if born would suffer from 'such physical
or mental abnormalities as to be seriously handicapped'.
Jepson argues that there is
no room for subjectivity: the decision is a purely objective
one for the doctors to make, and the parents' perceptions
of the matter are neither here nor there. This is hardly realistic;
as those who work in maternity care know, what one woman may
be willing to accept by way of a fetal abnormality (perhaps,
because of her religious beliefs) may be intolerable to another
Section 1(1) (d) Abortion
Act 1967 was amended by the Human Fertilisation and Embryology
Act in 1990, to remove the previous time limit of 28 weeks.
This took account of the fact that some abnormalities only
become apparent at a late stage of pregnancy. There are thousands
of potential fetal abnormalities, and Jepson claims that cleft
palate falls outside the scope of section 1(1)(d).
If she is right, then the
doctors concerned have committed the criminal offence of procuring
an unlawful miscarriage: a serious offence under section 58
of the Offences Against The Person Act 1861. Under the original
wording of that statute, the punishment for such an offence
is 'penal servitude for life'. Jepson has claimed in an interview
on BBC television that the person (or persons) responsible
for the operation are responsible for 'unlawful killing',
a phrase that implies murder, or at least manslaughter, to
the ordinary viewer (2). She says that they should be held
to account, which suggests that they should be charged, prosecuted,
convicted, and punished.
This approach pays scant regard
to the rights of the professionals concerned. What about the
presumption of innocence, and the right not to be convicted
retrospectively of offences that were not treated as crime
at the time of the conduct in question? (3)
Jepson's case that the Human
Rights Act 1998 has any application is weak.
So it is striking that the judges who screened her application
(Lord Justice Rose and Mr Justice Jackson) did not subject
it to closer scrutiny. There have been a number of complaints
made to the European Commission of Human Rights in Strasbourg
about abortion. But all attempts to argue that a fetus is
protected by Article 2 of the European Convention on Human
Rights (which says that 'Everyone's life shall be protected
by law') have foundered (4). This is not surprising, because
legal jurisdictions do not treat fetuses as 'persons', or
as rights-bearing entities. It would be extraordinary if unelected
judges should take it upon themselves to grant the status
of legal personhood to fetal lives, without any prior democratic
debate or consultation.
If they did, all sorts of
curious consequences could arise. If fetuses enjoy rights,
then perhaps they should also carry responsibilities: this
could mean that they should be expected to pay bus fares,
for example. Why not? Also, pregnant women who took drugs,
drank or smoked during pregnancy could be prosecuted for administering
noxious substances to a minor. Indeed, the present initiatives
concerning children 'at risk' would be greatly expanded, if
pregnant women could be included within child protection measures.
In court, the only exception
that Jepson's lawyer seemed willing to countenance was if
the woman's own right to life under Article 2 were affected.
As fetal abnormality does not threaten a woman's life, this
suggests that abortion for fetal abnormality would have to
be outlawed, in all circumstances. For example, why should
fetuses suspected of Down's syndrome be aborted, if abortion
for cleft palate were illegal?
So this case has the potential
to drive a coach and horses through the Department of Health's
plans for Down's syndrome screening to be offered to all pregnant
women: it seems pointless to offer screening to pregnant women
for such conditions, if they and their medical advisers do
not have the option of lawful termination (5).
Indeed, as all abortion involves
the deliberate taking of fetal life, it would follow that
if Jepson is right about the application of Article 2 in this
case, then all abortion ought to be banned; we do not permit
murder under any circumstances (except in self-defence). And
that is surely the underlying thrust of this case. There is
no legal logic in limiting the argument to whether a particular
abortion for cleft palate was contrary to Article 2. If Jepson's
legal analysis is right, then the judges who eventually hear
the full judicial review should declare that Article 2 extends
to all fetuses, disabled or not. Nor is it obvious why the
judges should conclude that legal personhood only starts at
upwards of 24 weeks.
But the underlying rationale
for Jepson's hardline arguments seems to rest on wishful thinking.
It is highly improbable that the court hearing her substantive
application will grant her the relief that she seeks: there
is no support in Strasbourg jurisprudence for her argument,
and a ruling in her favour would open the floodgates to a
stream of further demands by anti-abortion campaigners.
These could include: that
the doctors in question be prosecuted, and that abortions
for fetal abnormality should be stopped by court injunctions,
or at least subjected to prior scrutiny by the civil courts,
who could grant a declaration on a case-by-case basis that
particular abortions were lawful or unlawful. The whole issue
of court-ordered Caesareans, finally put to rest by the Court
of Appeal in 1998, would also fall to be reopened (6).
It seems unlikely that the
judiciary would want to open such a can of worms, especially
in a situation where parliament has chosen to leave this kind
of difficult decision-making to pregnant women, in consultation
with their medical advisers. When parliament has struck the
balance, first in 1967 and then in 1990, it is not for unelected
judges to interfere. We live in a democracy - not a theocracy
or a 'judge-ocracy'.
Barbara Hewson is a barrister
at Hardwicke Building, Lincoln's Inn, London.
(1) [410 U.S. 113 (1973)].
In this landmark case, the US Supreme Court decided that a
woman's constitutional right to privacy protects the decision
to terminate a pregnancy.
(2) Video clip at http://news.bbc.co.uk/1/hi/health/3247916.stm
(3) European Convention on
Human Rights (1950), Articles 6.2, 7.1.
(4) Paton v United Kingdom
[3 EHRR 408]; H v Norway [42 DR 247]; Bruggeman
& Scheuten v Germany [5 DR 103]; [and see open door counselling]
(5) See Antenatal care: routine
care for the healthy pregnant woman: NICE Clinical Guideline
October 2003, chapter 9, para. 9.2; DoH press release
(6) St George's NHS Healthcare
Trust v S  Fam 63.