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Abortion law
   
 

We still need abortion as early as possible, as late as necessary
By Ellie Lee
July 08, 2004

David Steel, architect of the 1967 Abortion Act, this week said that the abortion law should be changed. It should provide for abortion 'on request' in the first three months of pregnancy, says Steel, but the upper time limit on abortion, currently 24 weeks, should be brought down to around 22 weeks (1). He argued that as a result of scientific and technological developments, fetuses have become viable at earlier stages of pregnancy, raising questions about the ethics of late abortion.

Steel's comments provoked a storm of debate in the media and political worlds. Prime minister Tony Blair was dragged into the discussion when he was asked about Steel's proposals during Prime Minister's Questions in the House of Commons on 7 July. Anti-abortion campaigners welcomed Blair's suggestion that the government would revisit the abortion debate in light of technological developments. 'If the situation does change then it would be advisable for us to have another look at the whole question', said Blair. 'If the scientific evidence has shifted then it is obviously sensible for us to take that into account.'

Steel's proposal would require a complete overhaul of the abortion law. At present British law makes no distinction between abortions at any stage up to 24 weeks. Whatever stage the pregnancy is at, if an abortion is requested two doctors must agree 'in good faith' that it can be performed because the woman's circumstances match those specified in the Act.

The new proposal would introduce a distinction based on how advanced a woman's pregnancy is. If the woman is less than 12 weeks pregnant she would not need two doctors' signatures. Presumably simple consent to medical treatment, ascertained in the normal way, would become sufficient for an early abortion to take place. Steel has not made it clear what he thinks should happen if the woman is more than 12 weeks pregnant - but we can assume that he thinks there should be additional requirements if an abortion is requested. Then, after 22 weeks, abortion would become illegal except for 'medical reasons'. (This is already essentially the case under the current law for pregnancies over 24 weeks, after which abortions can be performed only where there is 'substantial risk of serious abnormality' or where the woman's life is at risk.)

Steel's argument rests on two assumptions. The first is that abortion needs to be provided 'as early as possible'. He says this doesn't always happen currently, because of the 'two doctors' requirement. 'This requirement has led in some cases to delay', says Steel. A change to the law to remove this requirement would make early abortion easier to access, thus preventing later ones.

His second assumption is that the abortion law must be shaped by changes in technology, in particular changes that affect fetal viability. Since the 1967 Abortion Act was passed, he notes, 'medical science has continued to advance, recording survivals at 22 weeks of pregnancy, and lurid publicity has been given to "botched" abortions...abortions should be carried out as early as possible'.

In short, Steel believes that making early abortion more easily accessible will make it less necessary to carry out late abortions, especially those that take place at, or approaching, the point of fetal viability. So making early abortion accessible comes to be seen as a solution to the 'abortion problem' in general. Steel notes that the anti-abortion lobby will, of course, not find this solution satisfactory, but he says the rest of us should. I would encourage people to question his arguments, for the following reasons.

-- There is little evidence that easy access to early abortion will reduce the proportion of later procedures.

It has become something of a given that later abortions are mostly the result of a lack of access to early abortion. Campaigners point to the lack of funding for local abortion services, the fact that abortion is not given priority in health provision, and the problem of doctors who oppose abortion refusing to help women access procedures, as reasons why some abortions become delayed.

It is certainly true that in the past, one reason why some women requested later abortions is because they experienced problems with accessing an early abortion, and there is evidence that such delays still pertain (2). But the notion that, in general, abortion after 12 weeks is the result of delays is misplaced.

There is a scant evidence base on this particular issue. The evidence that does exist suggests that women who seek second-trimester abortions most frequently do so for reasons unrelated to delays. One British study from the mid-1990s showed that only 13 per cent of second-trimester abortions could have been managed earlier by service improvements (3). Most women requesting later abortions hadn't realised that they were pregnant, had denied the pregnancy, or they no longer want to continue with their initially wanted pregnancy.

There have been significant improvements in abortion services in recent years, making early abortion more accessible than ever. Indeed, it could be argued that abortion is more or less available 'on request' already. In this light, the findings referred to above are probably even truer today. My own research, carried out recently for the Joseph Rowntree Foundation, confirms this point. Interviews with 51 teenagers who terminated pregnancies showed that just over one third obtained second-trimester procedures and that it was not delays in access that caused this (4).

However easy it becomes to have an early abortion, there will still be women who request them later. Women do not wait to terminate pregnancies just because they can't get an abortion as soon as they want one. There is much more to it than that.

Research from the Alan Guttmacher Institute in the USA found the following reasons for abortions during the second trimester (5).

ReasonPercentage
Woman did not realise she was pregnant71
Difficulty making arrangements for abortion48
Afraid to tell parents or partner33
Needed time to make decision24
Hoped relationship would change8
Pressure not to have abortion8
Something changed during pregnancy6
Didn't know timing was important6
Didn't know she could get an abortion5
Fetal abnormality diagnosed late2
Other11
Average number of reasons given2.2

There is rarely one simple reason for referrals after 12 weeks. Decisions about abortion are not always straightforward for women. While some women are very clear about what they want the outcome of a pregnancy to be, many aren't. Making a decision that will so profoundly affect your life can take a little time. And failing to recognise this means failing to think of women as persons with serious decisions to make and negotiate.

However accessible first-trimester procedures become, women will request abortions later on for various reasons. Ann Furedi, chief executive of bpas, the organisation that now provides an increasing proportion of second-trimester abortions, argues that when women request later abortions it is often 'because something has changed in their lives. It might be discovering her boyfriend is having an affair, or a man she thought would support her let her down. She might have lost her job or been ambivalent about the pregnancy from the start, but has taken a long time to make up her mind' (6).

In an editorial this week, The Sunday Times disparaged such views, suggesting that 'your boyfriend leaving you' is a rather trivial reason to have an abortion and not sufficient grounds for a woman to consider a previously wanted pregnancy to be unwanted. In reality it is a very common reason why women have abortions - and if it is a good enough reason at six weeks, why not at 16 weeks? At both stages, the real issue is that women should be able to take responsibility for their own futures.

-- The suggested trimester-based distinction panders to irrational views

I have always argued that abortion should be available 'as early as possible'. Once a woman has decided the pregnancy should not progress, she needs to be able to end it straight away. But making this a reality does not require a law making a distinction between what women are legally entitled to based on gestation. Indeed, under the current law, which makes no such distinction, early abortion has become more accessible.

If the central aim is to make early abortion more accessible, why not just have abortion on request, and aim to make later procedures more accessible too? That this is not being proposed suggests there is much more to Steel's proposal than wanting to make abortion available early because that is what is best for women. It is also a proposal designed to take on board other groups' views on abortion, and in particular their views on late abortion.

Steel says that technological developments should make us rethink the abortion law. Developments in this area have come to the fore in the arguments of those who have a 'problem' with abortion - and what is striking is that often such people are not anti-abortionists in the traditional sense.

American feminist Noami Wolf, for example, recently expressed her disquiet about post-12 week abortions (7). She concluded, on the basis of what ultrasound shows us, that the 24-week time limit is 'too generous', and that after three months 'a network of supportive adoption agencies should be on hand to help and sustain the pregnant woman and her baby'. Her main justification for this argument is her own experience of pregnancy, through which she 'discovered' that at 12 weeks the fetus looks like a baby, moves around a lot, and that she had very strong feelings towards it. British newspaper columnist India Knight also recanted her previous support for abortion after becoming a mother (8).

This is an approach to abortion from an entirely subjective viewpoint. These commentators seem to think it is legitimate to make a case about abortion policy according to how they feel about their own pregnancies and experience. They are joined in this enterprise by supporters of the Reverend Joanna Jepson, famous for her crusade to get a doctor prosecuted, after he performed an abortion for cleft palate after 24 weeks. Her right to 'feel offended' by the abortion in question, on the grounds that she has personal experience of facial deformity and has a brother with Down's Syndrome, has been taken as a perfectly good reason for attempting to prevent other women from terminating pregnancies.

This approach is even worse than that of the anti-abortion lobby, who at least have a moral argument to make (albeit one that is profoundly wrong). The prevalence of personal experience arguments in the abortion debate is symptomatic of a general trend today - the 'it's all about me' tendency, where many commentators seem unable to comment on an issue and work out where they stand without invoking their own feelings and experience. The gestation-based distinction can only pander to this view, when what we really need is to confront it.

The truth is that no sensible distinction can be made between an abortion request at six weeks and a request at 16 weeks. That the fetus is bigger in the second instance matters greatly in a clinical sense, because the abortion procedure will be different, for both the medical staff and the woman involved. But its practical importance for the woman is no different to what it would have been at six weeks.

Even though the current law makes no distinction between abortions up to 24 weeks, a very real distinction exists in practice (9). Early abortions are easier to access than they were, but those later in pregnancy most certainly are not. It is in this area where there are real delays, most likely because of a lack of medical professionals who are prepared to perform or assist with such abortions. For those of us who accept abortion, this means very firmly rejecting the kind of distinction Steel is proposing.

-- Technological development should not be the basis for deciding the upper time limit.

When it comes to the upper time limit for abortion, arguments about technological developments feature strongly today. Since 1990, when the time limit on abortion was lowered from 28 weeks to 24 weeks, some have argued that it needs to come down further still. It is now most popular to argue for 22 or 20 weeks.

Those who argue for such a change often talk of a profound 'ethical dilemma'. They claim that because doctors can now save the lives of very premature babies - born, for example, at 22 weeks - abortions should not be permitted at this stage. This same dilemma has come up in discussions about what should happen in the very small number of cases where abortions at 20 weeks or later are 'botched' - that is, where the fetus is not properly killed before the procedure and emerges showing signs of life. Should it be left to die, or should it be resuscitated? How can a doctor allow it to die, when in the next ward he might struggle to save the life of a baby born at the same stage?

This 'dilemma' can be resolved if the starting point becomes the woman, rather than the fetus. Taking such an approach can help us to understand why medical practice should both fight as hard as it can to save prematurely born babies, and also help women who seek to terminate 22-week pregnancies. It makes sense if the aim, in both cases, is to assist the woman to achieve what she wants.

The development of technology is not the real issue. Rather, the claim that new technologies should be decisive in shaping access to abortion suggests that we don't take women's autonomy and responsibility seriously.

-- The technical/biological vision of personhood implied by this proposal should be contested.

Some claim that the new 4-D ultrasound images of fetuses show that the fetus is a little person, who walks, cries, smiles and laughs. Other, more sophisticated commentators denounce this idea, but argue that personhood starts at around 22 weeks, because a fetus can be born alive at that stage.

According to Mark Henderson, science correspondent for The Times: 'As scientists learn more and more about human gestation...it is difficult to hold that the choice to abort in the early weeks of pregnancy is qualitatively much different from contraception....' But he says the science doesn't only point one way, arguing that 'it is increasingly hard to justify abortions after 20 weeks unless there is compelling medical need', because of what science tells us about fetal development at this stage (10).

This misses the point about what is going on for women who request abortions at this stage. The few women who do so make such requests because their circumstances led them to conclude that it would be better if their pregnancy did not result in a child. Neither advances in fetal physiology, nor the development of fetal medicine and neonatal intensive care, will affect these circumstances. Science may now be able to tell us more than ever before about fetal development, and there is clearly lots more to learn - but it is arguable whether this is relevant to abortion decisions, and whether such decisions will, or should, be affected by science.

Such arguments generate a very narrow and limited way of thinking, making it harder to explore and consider questions about what makes us human, about rights, and so on. Science alone should not be given the task of answering questions about freedom and choice.

Women need abortion, in law and in practice, as early as possible and as late as necessary. They need this because the outcome of pregnancy is, ultimately, their responsibility, and they should not be denied the right to take responsibility for their lives. But what is at issue goes wider than this. As ever, the abortion debate touches on societal perceptions of what it means to be human - and the version that underpins the form of abortion law advocated by Steel is not what we need.


(1) We need to rethink my abortion law, David Steel, Guardian, 6 July 2004

(2) See All-Party Parliamentary Pro-Choice and Sexual Health Group, NHS Abortion Services, June 2004

(3) 'Late presentation for abortion', by Anne George and Sarah Randall, British Journal of Family Planning, 1996: 22: 12-15

(4) Influences on young women's decisions about abortion or motherhood, Joseph Rowntree Foundation

(5) An Overview of Abortion in the United States, Alan Guttmacher

(6) Sunday Times, 4 July 2004

(7) See Sunday Times, 11 April 2004

(8) Sunday Times, 25 April 2004

(9) Influences on young women's decisions about abortion or motherhood, Joseph Rowntree Foundation

(10) The Times (London), 24 April 2004

 
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