Who's afraid of choice?
By Ellie Lee
December 7, 2003
The discussion around the
legal case brought by Reverend Joanna Jepson - who is trying
to get a doctor who performed an abortion on the grounds of
cleft palate prosecuted by the police - has confirmed one
thing: there is little sympathy today for those who think
abortion should be banned outright.
But the case has also highlighted
a lack of support for the idea of choice. The most common
position taken in response to the Jepson case is one that
says: 'I'm not against abortion, but this is a very worrying
case.' In effect, individuals are saying, 'I'm for choice
- but not this terrible choice'.
Choice is one thing, they
argue, but there must be safeguards to stop things 'going
too far'. As the Daily Mail's Lesley Garner put it:
'I am a strong defender of a woman's right to make her own
decisions on abortion....However, Miss Jepson has raised very
important issues about the uses, and abuses, of abortion.'
The fact that a woman had an abortion because the fetus had
a cleft palate is now cited as evidence that too little is
being done to put the breaks on the demands of women seeking
In some ways, this is an old
story. The furore surrounding the 'cleft palate abortion'
is reminiscent of cases from the past - like the woman who
wanted an abortion 'because she was going on a skiing holiday',
or the woman who, in the mid-1990s, aborted one of the twins
she was carrying. However, there are different dimensions
to the abortion issue now. The sentiment that gave strength
to anti-abortion claims in the past - that motherhood should
be a woman's main social role - has little resonance today.
But other themes have come to the fore.
The first is the notion that
we are increasingly consumerist in the way that we think,
and cannot tolerate anything less than perfection. It is clear
from an interview published in The Sunday Times, under
the headline 'Holy War on the beauty fascists', that this
is the idea Rev Jepson is promoting above all others. Her
claim that abortion for cleft palate shows up the problems
with our 'quest for perfection' has dominated the debate.
Journalist Christina Odone
argues that, 'Our culture is so obsessed with looks that there
are women who think it is better not to be born'. Edwina Currie,
the ex-Tory minister who consistently voted against the anti-abortion
lobby when she was in parliament, says: 'This is indeed the
thin edge of the wedge. What's next? Let's get rid of a baby
because it has too big a nose...? Think like that, and it's
the end of a civilised world.'
Even though we do not know
how profound the cleft palate was in this case, the media
have provided numerous examples of people born with cleft
palate whose lives have not been marred by their condition.
Writing in the Daily Telegraph, Andrew Cullen, who
was born with cleft palate and got bullied at school, says:
'I am not against abortion in all cases...[but] this is not
an adequate reason, legally or morally, to terminate an unborn
child before or after the 24-week deadline.'
The other theme that has emerged
around the Jepson case is the notion that we should be distrustful
of doctors. As one correspondent to the Guardian put it: 'After
the Shipman case and the retention of infant body parts affair,
doctors no longer have our absolute trust.... "Trust
me, I'm a doctor" is no longer good enough.' Allowing
doctors to make judgements about whether an abortion should
be take place - which is what the law demands at present -
is now looked upon as deeply problematic by some.
In response to these discussions,
it is important to point out some basic facts about the provision
of abortion in Britain today.
These are its positive aspects:
first, it rests on the idea that fetal abnormality is a legitimate
reason for ending a pregnancy. The law recognises that there
is a difference between becoming a parent to a child with
a disability and becoming a parent to a child without a disability.
And a good thing this is, too.
In light of the la-la land
approach to disability and its effects on families that is
promoted by Rev Jepson and others, it is important to argue
that abortion and related services, such as antenatal screening,
should rightly take issues of disability into account. Women
who have abortions for fetal abnormality are not selfishly
seeking 'perfection'. They simply do not want to bring a child
who is ill into their family.
Cleft palate often causes
serious problems. Multiple congenital abnormalities affect
15 per cent of those born with cleft palate, and up to 300
conditions affecting the head and face involve some form of
cleft palate. It is wrong for Jepson, and those who have given
her a sympathetic hearing so far, to disguise these facts.
It is also important to defend
medical judgement and expertise. We are encouraged to expect
that doctors with a specialism in the area of fetal abnormality
will be able to explain, better than anyone else, what the
nature of the diagnosed disability is and what implications
it will have. This is a good expectation to have of the medical
profession, and on this basis we should be able to trust doctors'
But while these positive aspects
of abortion law should be defended to the hilt, there is no
avoiding the fact that Rev Jepson has raised a problem that
cannot be dealt with simply by standing by the status quo.
What if the fetus in question was affected by a form of cleft
palate that was not severe? What should happen then?
In response to such questions,
it is no use just defending the law and practice as it currently
exists. The problem is that the law does state that after
24 weeks of pregnancy, abortion is only legal where two doctors
believe there is 'substantial risk of serious abnormality'.
It does not say anything about the woman's views or feelings
about her pregnancy being taken into account when the judgement
is made. In fact, British abortion law makes absolutely no
mention of women's perceptions of their pregnancies, or their
rights. It simply says that a woman can only have an abortion
if two doctors agree that it is necessary on health grounds.
It is arguable that cleft
palate falls short of what many people would term a 'serious'
abnormality. There are other 'grey areas' where the legality
of abortion for fetal abnormality could be questioned. For
example, what if it a woman requested an abortion where a
disability was diagnosed, but the screening could not tell
how profound the abnormality would be? Would this be a 'substantial
Presently, such problems are
dealt with by arguing that there should be room for 'medical
discretion'. This is where a pregnant woman can discuss with
medical professionals what the condition affecting her fetus
might entail, and, if it seems best, the medical professionals
can decide whether to terminate the pregnancy. Abortion might
be right for some women but not for others - and doctors should
be able to make decisions according to circumstance.
This is a good point, and
it would be a step backwards to make medicine more rule-bound,
as Rev Jepson is suggesting. The logic of her approach is
that highly distressing and sensitive life dilemmas should
be handled on the basis of a diktat from judges or parliament,
who would provide a 'list' of which conditions are serious
and which are not. But with 'medical discretion', surely women
are effectively making a choice over whether to terminate
a pregnancy that is affected in a way that some would not
consider to be 'serious'.
In the end, the only convincing
argument that can be mounted against Rev Jepson's case is
that when it comes to deciding whether a pregnancy should
be terminated or not, the decision must be the woman's alone.
It should be no business of Rev Jepson's, or any of the other
pundits who have developed such strong feelings on abortion
for cleft palate.
Arguing for this approach
means arguing that British abortion law as it currently stands
is wrong. It is not that the law is too lax, allowing
for a 'slippery slope', but that it is too prohibitive; it
would be better all round if the law had at its centre the
principle of choice. So where the severity of abnormality
is debatable, and the risk it poses unclear, a woman should
still be able to have an abortion. The woman should make the
This should be the case because
it is the woman's pregnancy, her future and her family that
will be affected by the choice she makes. She will live with
the consequences of what she decides to do; and she must have
the right to make a choice that others disagree with. If she
decides that she does not want to have a child with a facial
disfigurement, that is her business. Those who argue that
permitting abortion for cleft palate would make society degenerate
and immoral are talking rubbish. All it would mean is that
the women concerned do not have babies with cleft palate,
but might decide to have babies without cleft palate at a
There is another argument
to be made. If the legitimacy of abortion abnormality depends
in part on 'medical discretion', and whether it is authorised
depends in part on the clinician's assessment of the context
of the woman's life, why single out disability?
There are many situations
where a woman might come to view an abortion as the best course
of action, regardless of how upsetting it might be to end
the pregnancy. For example, it is perfectly possible to imagine
a woman in her twenty-sixth week of pregnancy deciding that
an abortion is the best solution for her - even though there
is no fetal abnormality. So what is basis for the 24-week
What about a woman who discovers
at this gestational stage that the father of her child-to-be
has been having an affair and is planning to leave her? She
might decide that she desperately no longer wants to be a
mother. Why is she any less deserving than the woman carrying
a fetus affected by Down's syndrome? Both women, if forced
to by the law, could probably cope - but I find it quite hard
to understand why one woman should get the abortion, but not
the other. And why is it that a woman who discovers her partner
is having an affair at 18 weeks' gestation can ask to have
an abortion, but eight weeks later she cannot?
We need to demand some real
answers to these questions, rather than ignore them. But doing
that, of course, brings us right back to the law, and the
problem at the heart of the abortion debate.
From most politicians' point
of view, the way the abortion law was reformed in 1990 was
ideal. The point of the reform - which kept abortion legal
up to 24 weeks, but made it illegal afterwards unless there
was fetal abnormality or risk to the woman's life - was to
make it possible for legal abortion to continue, but to stop
the anti-abortionists generating endless parliamentary debate
about it. As Kenneth Clarke, then Tory health secretary, told
the House of Commons: 'This is a suitable opportunity for
the House to have a day at the end of which it can come to
a conclusion, which should last a long time, on the time limits
and future operation of the 1967 Act.' This was taken as a
'direct warning to anti-abortionist MPs not to use the private
members' bill procedure again to bring about changes'.
The best way of stopping anti-abortionists
from doing this, it was argued, was to make a concession to
them on the time limit on abortion (previously taken as 28
weeks), but also to make the case for a new higher limit of
24 weeks on the basis of medicine. The spirit of the 1990
reform was clearly summarised in The Guardian:
'The vote to bring down the
upper time limit for most abortion...displayed a cool pragmatism
in the face of hysterical emotion and marches in step with
the vast body of public opinion.... The legal premise that
abortion could take place until 28 weeks' gestation....has
simply been overtaken by the march of science.... Most medical
opinion now agrees that an infant is capable of sustaining
independent life at 24 weeks, and in practice the vast majority
of abortions already take place within that limit.... So reducing
the limit to 24 weeks is a sensible acknowledgement in law
of current reality already acknowledged in practice.'
In reality, the new amendment
changed little. The number of abortions carried out after
24 weeks, for reasons other than fetal abnormality, was already
tiny. (In 1989, the year before the Act was amended, 22 abortions
were performed after 24 weeks; of these, 18 were for fetal
abnormality and four to save the woman's life.) But in social
and political terms, the 1990 debate was highly significant.
It set it place a way of thinking about fetal life, which
has become more and more ingrained since.
From this new view, 'fetal
viability', as determined by how effectively medical science
can allow premature babies to survive, became the means through
which there can be a 'scientific' definition of when personhood
begins. What this means, of course, is that the woman is entirely
absented from the issue. It is almost as if she does not exist.
In the 13 years since the
1990 reform, this way of thinking has been set in stone. Almost
everyone now seems to think that a fetus is a 'person' at
24 weeks (overlooking the fact that for a woman considering
an abortion the fetus is still inside her body; and that at
24 weeks a fetus that has been delivered can only survive
if it is hooked up to an incubator for weeks - it is not even
capable of managing basic survival, never mind being a person
in the more philosophical sense). Abortion after 24 weeks
is now seen as being beyond question, unless there are exceptional
circumstances. What the woman might want has come to matter
Indeed, things have gone further
than this, really. While 24 weeks is the official limit for
legal abortion, anything other 'early' abortion (this is before
12 weeks) has come to be viewed as more and more suspect.
18 or 19 weeks is now seen as pretty 'late' and in reality,
abortion at this stage is much harder to access than that
earlier in pregnancy. In many parts of the country it is only
available because doctors employed by the specialist abortion
provider BPAS will perform them. Women are, in fact, sometimes
told that abortion at this stage may well not be available,
unless they 'go private' and pay for it themselves. The notion
that women who request abortion at this stage should be treated
the same way as those who present earlier does not guide abortion
provision. For women, this is a big problem and it needs to
be confronted. This can only be done if the viability distinction
There is no doubt that raising
issues about these aspects of the regulation of abortion and
its provision is something few want to do. This is because
the logical consequence of doing so is to draw the conclusion
that, to put it bluntly, choice is choice. I know from my
experience of making this point that some people - those who
are pro-life and some of those with disabilities - get very
upset about it. But it is hard to see how this issue can be
avoided if we are to have an approach to abortion that is
fair, coherent and moral.
There is an opportunity now
available to those of us who wish to take it, to make the
case for this approach. This means arguing for choice. That
is choice Full Stop. That is for abortion to made available
to women, as we used to argue in the 1980s, as early as possible,
but as late as necessary. And that is for a new abortion law
that finally accepts that it is the pregnant woman who has
the responsibility, and therefore must have the right, to
decide whether to have an abortion.