Let us decriminalise abortion altogether

This month marks the fortieth anniversary of the UK 1967 Abortion Act, which legalised the termination of pregnancy if two doctors agreed that continuation would be harmful to the health of the mother. Discussion of abortion law in the run-up to the anniversary has been dominated by arguments about fetal viability, and the psychology and biology of fetal pain. The question of providing choice for women to have abortions, based on their own assessment of their circumstances, rarely seems to be raised.

A set of factors has pulled the debate towards an obsession with ‘the science’, and actual scientific developments have been the least important of these. In so far as there have been scientific/medical developments in recent years, they have been incremental rather than dramatic. What is far more interesting is the degree of importance that social actors now attach to ‘science’: there has been a ‘de-moralisation’ of the abortion issue. The rise of ‘science’ as the reference point in the abortion debate reflects the decline of other lines of argument.

This shift is most obvious in the case made by anti-abortionists. Increasingly, they couch their arguments in the language of science and medicine and organise their campaigns accordingly. By the 1980s, anti-abortionists knew that they were making little headway in turning the clock back to the days of illegal abortion, and so more and more sought to ‘medicalise’ their arguments. They started to make a big deal out of ultrasound images, suggesting that these technologically innovative images prove the fetus is ‘a baby’, and they developed a raft of medical-sounding arguments about the effects of abortion on women’s health. Anti-abortionists have claimed, for example, that abortion causes an as-yet-unrecognised mental illness, ‘Post Abortion Syndrome’ (1). Claims about breast cancer, fetal viability and fetal pain have all become standard lines in anti-abortion rhetoric.

It is hard to overestimate how far this transformation in anti-abortion arguments has gone. For instance, at last week’s Science and Technology Committee hearings in the UK parliament, set up to assess the extent of scientific developments since the British abortion law was last amended in 1990, a parade of dedicated men of God – members of the Christian Medical Fellowship (CMF) and the Society for the Protection of Unborn Children (SPUC) – dressed up their anti-abortion views in seemingly scholarly arguments about the methodology of breast cancer studies, the neurobiology of the fetus, and the design of studies assessing fetal viability.

Dedicated opponents of abortion are, however, not the only social actors who now oppose abortion by suggesting its regulation should be all about ‘the science’. Some journalists have also made great efforts to stir up concern about legal abortion on this basis (2). This process reached its nadir with the Channel 4 Dispatches programme broadcast on 18 October, discussed elsewhere on spiked – a programme that spent a great deal of time and energy inventing scientific controversy where there is none, in order to make legal abortion look bad.

So why has the debate about abortion shifted from the realm of politics to the territory of science, and what do we really need to know about Britain’s abortion law?

The shift away from freedom

The new approach to abortion taken by many commentators and activists reveals much about today’s wider political context. There is a growing cultural ambivalence about the moral importance of choice. Although rarely articulated with clarity, the central reason why it has become possible for the abortion debate to develop in the way that it has is because liberty generally is held in low regard today. The vocabulary of ‘science’ is used to trump choice by those who have a distaste for freedom and liberty.

In this sense, the current abortion debate has much in common with a wide range of others, from obesity to the use of closed-circuit television (CCTV) surveillance. In all these cases, claims about ‘scientific evidence’ are used as a stick with which to beat those who dare make the case for freedom of choice and civil liberty. The associated sensibility that has come to dominate culture is: ‘There should be freedom of choice, but…’ Very rarely is the word ‘choice’ mentioned without qualification and a health warning. This is evident in the abortion debate, where the dominant position articulated by those who are not paid-up members of Life or SPUC, is ‘I’m pro-choice, but…’ – and the ‘but’ these days usually revolves around raising qualms about the upper limit for abortion on the grounds of ill-defined new medical evidence.

It now looks certain that abortion law will be debated by the UK parliament early in 2008 as part of the debate about the Human Tissues and Embryos Bill. If this debate is well-informed about scientific and medical issues, then it should be welcomed. But if the debate becomes obsessed with ‘the science’, that would be a major problem. Such an approach would constitute nothing progressive, but rather would reflect the degradation of the idea of freedom dressed up in the garb of ‘evidence-based policy’.

Abortion law as it stands

A quick glance at the current legal position shows why a new debate framed around choice is essential. In Britain, abortion is still formally illegal. Abortion, in early pregnancy at least, is now relatively easily available to British women. This makes it easy to forget the archaic backwardness of the abortion legislation.

Abortion has never been decriminalised in Britain. It still remains regulated by the 1861 Offences Against the Person Act, which makes it a criminal offence punishable by imprisonment to procure or perform an abortion. The 1967 Abortion Act legalises abortion (but does not decriminalise it) by creating a legal defence for doctors against the 1861 Act. This is a bizarre situation, but it seems unlikely that the current government will grasp the nettle and move the law a century-and-a-half forwards. Nevertheless, a basic condition for legal reform should be the decriminalisation of abortion and the reformation of abortion law in line with the law regulating other medical procedures (3). Canada provides an interesting example of the positive effects of this approach (4).

Women have no right to decide. A distinctive feature of the British law is that throughout pregnancy, abortion is only legal where two medical practitioners declare they have formed the opinion ‘in good faith’ that a woman should be able to terminate her pregnancy. This state of affairs has been criticised by many medical practitioners and pro-choice activists over the years: the two-doctors rule creates an administrative burden for the medical establishment, and it can potentially make accessing abortion awkward for women. While the two-doctors requirement is not a great barrier in practice, it still creates problems for women: for example, some doctors make it very difficult for women who seek a termination later on in pregnancy (5).

Distrusting women

The relative ease of obtaining abortion should not take away from the fact that the two-doctors rule has huge symbolic and cultural significance. The message it sends out is that women do not have the moral and intellectual capacity to decide whether abortion is the best thing for them. Women, the law tells us, should not be given authority to decide whether to ‘end a life’, regardless of the fact that a) the fetus is in their womb and b) the continuation of the pregnancy will result in a child that they will be responsible for.

This level of distrust should remain a key focus for discussion, regardless of how accessible abortion becomes. It breaches a key tenet of medical law accepted for every other procedure – that decisions regarding medical treatment can and should be made by the patient (6). It also reinforces one of the most troubling wider aspects of our culture: the notion that individuals cannot be trusted to make sensible choices and decisions, but rather should be guided by an expert of some kind. The abortion law as it stands should be contested by anyone who wants to uphold the idea of adult competence and autonomy.

A personal decision, not a medical one

While the grounds for abortion are couched in medical terms, and health is a factor in decisions about abortion, the main consideration for women is whether or not they want to have a baby (or another baby, in the case of women who are already mothers). This requires individual women to consider a whole complex set of issues relating to their family life, relationships, aspirations and perceptions of what they want for the future. This is the decision that lies at the heart of abortion, and this fact should be reflected in law.

Sometimes, making the decision about what is best can be very difficult for women, and choosing abortion can be upsetting. Indeed, it the hardness of choosing that explains in part why women have abortion later on in pregnancy, as they struggle to make their decisions (7). But recognition of a person’s right to make a (hard) choice should be taken for granted in law. The law should reflect the truth of abortion decision-making: if a pregnancy is unwanted, something that can only be determined by the woman, that should be sufficient grounds for abortion.

Preventing safe, early abortion

The law as it stands prevents best practice. While much heat has been expended debating medical advance and fetal viability, the real medical advance in abortion practice since 1990 has been the advent of Early Medical Abortion (EMA). EMA works by using a combination of drugs taken by the woman up to 63 days’ gestation, which induce a miscarriage. It is widely recognised as a safe, effective abortion method. Yet while Britain was the first country after France to licence the drugs used in EMA (in 1991), it has now fallen way behind many counteies around the world in this area of abortion provision.

British women are still denied access to EMA in many parts of the country because publicly funded health services are not properly geared up to provide it. The key barrier, however, is the law – for two reasons. First, EMA is best provided though a nurse-led service, and yet it is illegal in Britain for nurses to prescribe the drugs, due to the two-doctors rule. Second, it has been comprehensively shown by abortion practice in the US and South Africa that it is best to give women the option of taking the second part of the EMA treatment at home. This works very well, and many women prefer it, since they miscarry in the comfort of their own home rather than in a clinic (8). Yet in Britain, we are still nowhere near being able to provide EMA in this fashion, because the law does not permit women to take the drug at home.

Even if policymakers prove too cowardly to do what makes sense – and change the law to make abortion a matter of choice for women – the very least we should expect of law reform next year is to make home-use of EMA acceptable and possible.

Ellie Lee is a lecture in social policy at the University of Kent.

(1) Lee, E. 2003. Abortion, Motherhood and Mental Health, medicalizaing reproduction in the United States and Great Britain. Aldine Transaction.

(2) Lee, E. 2007. ‘The Abortion debate Today’. In K. Horsey and H. Biggs (eds). Reproducing regulation, Cavendish.

(3) Let us decriminalise abortion altogether, by Ann Furedi

(4) Canada, the civilised outlaw, ProChoice Forum

(5) Abortion: better ‘late’ than never’, by Ellie Lee

(6) See Professor Sally Sheldon’s contributions to: Written evidence to the Science and Technology Committee; Late Abortion, A Review of the Evidence, Pro Choice Forum

(7) What’s wrong with ‘do-it-yourself’ abortions?, by Ann Furedi

(8) Abortion: better ‘late’ than never’, by Ellie Lee