The case for ‘late’ abortion

Part Three of the spiked-paper ‘Defending abortion – in law and in practice’

For the reasons discussed previously, there is a high degree of support for access to abortion. However, the degree of support seems to differ depending on what stage in gestation the abortion occurs. Public opinion polls appear to indicate that while most people have no difficulty accepting the legality of abortion in the earlier stages of pregnancy, fewer are so sure about their position as pregnancy progresses. In the UK parliament, the most frequent kind of measure to reform abortion law proposed has been to lower the legal time limit (1).

The difficulty many have in accepting the case for abortion at later gestations can in part be explained by people’s own experience of abortion. Given that early abortion (during the first three months of pregnancy) is extremely common, experienced by 35 to 40 percent of women by the time they reach 45, the sheer volume of those with some experience of this kind of abortion mitigates against claims that it is morally wrong, or should be illegal.

In contrast, the numbers of women with experience of abortion at later gestations is small. In 1999, 89 percent of abortions took place in the first 12 weeks of pregnancy (2). Only one per cent of abortions are carried out at 20 weeks gestation and beyond: a total of 1745. This means there is no broad constituency who are sympathetic to abortion at later gestations as a result of their own experience. In contrast, there is a widespread experience of what it means to have a wanted pregnancy at this stage.

Public unease about late abortion is shared by some in the medical profession. Developments in neo-natal medicine have created a situation where, sometimes – albeit rarely – babies born as early as 22 weeks gestation, two weeks earlier than the legal time limit for most abortions, can be kept alive.

Influential columnist and science writer Greg Easterbrook has unsettled both pro- and anti-choice lobbies in the US with an article in a recent edition of The New Republic (3), which calls for a reshaping of the abortion debate to incorporate new scientific understanding. Easterbrook argued that, in the past, law and religion defined our understanding of abortion because science had little to say.

This, he claims, has changed. The case for liberal provision of early abortion is strengthened by evidence that the natural termination of potential life through spontaneous miscarriage in early pregnancy is far more common than previously assumed – but discoveries about the brain activity of the more developed fetus stand as an argument against late abortion. Easterbrook believes this is a message those of us who support women’s right to abortion are keen to ignore, in case we are compelled to trade off liberal earlier abortion for restrictions on those in later pregnancy.

As Easterbrook contends, published studies of fetal brain activity and neurological responses have helped to create a sense that post-21-week fetuses should be treated like newborn babies. The fact that these studies are contested has failed to halt a sense, even within the medical profession, that the termination of fetal life at this stage is something in need of review. The number of gynaecologists prepared to carry out late abortions is declining, and increasingly NHS trusts refer their ‘late cases’ to the specialist abortion provider, BPAS.

Under British law, the shift of concern as pregnancy progresses away from the woman, and towards the fetus, is in fact already formalised. ‘Fetal viability’ is accepted a criterion by which the legality, or illegality, of abortion is determined, and as a result, after 24 weeks, abortion is in general not legally permissible.

(a) Fetal viability and third trimester abortion

According to the 1967 Abortion Act (as amended), the point at which abortion ceases to be legal in most cases, is at 24 weeks.

The 1967 Abortion Act (as amended) (main clauses):

Section 1(1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion formed in good faith –

(a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or

(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or

(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or

(d) that there is substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.

Section 1(2) In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph a) or b) of subsection (1) of this section, account may be taken of the pregnant woman’s actual or reasonably forseeable environment.

The specification of a time limit of 24 weeks was added to the Abortion Act in 1990, as part of the Human Fertilisation and Embryology Act (HFEA). The key argument made for doing so was that at this point in gestation it becomes possible for a fetus to be kept alive outside of the womb. Aiding the survival of the fetus, it was suggested, becomes at this point more important than a woman’s desire to end a pregnancy. Previously, the upper time limit had been 28 weeks as this was seen to be the time at which a child would have a reasonable chance of survival if born alive.

The criterion of fetal viability thus introduces an ethical distinction in abortion law between second and third trimester abortions, which is essentially centred on the fetus. The interests of the fetus are allowed to take priority over those of the woman.

Yet the viability distinction is not something that can be precisely defined. It is determined not only by the state of the biological being of the fetus, but also the way society can provide mechanisms to enable the severely premature baby to survive. It is not the case therefore, as many would suggest, that at this point the fetus is a ‘life’, but rather that medical technology can intervene to enable it to survive. Viewed in this way, making viability a point of great moral and ethical significance is in some ways arbitrary and random.

In fact the Human Fertilisation and Embryology Act highlights a very much earlier point as being of great moral significance. It draws attention to the development of the primitive streak. This is the point at which certain cells in the embryo differentiate, at about 14 days after conception. Traditional Catholics pinpoint the point of conception as the point at which a human life develops, on the grounds that at this point the fertilised ovum is genetically distinct.

It could also be argued that, within UK abortion law, the point of implantation is given weight, which is usually a couple of days after conception. This legally determines the difference between abortion and contraception. It is legally accepted that contraception is something that prevents pregnancy before implantation, which is not seen as a matter for legal regulation. In contrast abortion ends pregnancy after implantation, and this is subject to regulation. Ultimately pregnancy is a progression, a continuance of life forming and many points of development can be identified.

Arguably, there are three defining moments in pregnancy. The first is conception, which is where something genetically distinct emerges. The second is implantation – the point at which the woman becomes pregnant. The third is the point of birth, which is morally significant for the simple reason that at this point action can be taken that was not possible previously. The woman and baby are separate, and the baby can be looked after without imposing on the autonomy of the woman.

One reason why it is unethical for late abortion to be restricted is that such restrictions undermine the principle of bodily autonomy, now accepted in the medical law that states no woman or man should be forced to undergo medical procedures against their will (4). In this light, it is problematic that a woman should remain pregnant and undergo childbirth out of an obligation to maintain the life of the fetus.

Society does not impose this obligation even in respect of born children. There is no law that can obligate a person to undergo medical treatment in order to save the life of another person. Many people may not agree with a woman’s reasons for seeking a late abortion, and may think it wrong for that woman to end her pregnancy. But others’ agreement and approval should be of no consequence.

Abortion should be subject to no more legal constraints than any other clinical procedures.

It is important to recognise that, even if the law were different, there is no reason to believe that many women would opt for a third trimester abortion. Prior to 1990, in Scotland, unlike England and Wales, no time limit for abortion could be inferred from existing abortion law – since the 1929 Infant Life Preservation Act (from which a time limit of 28 weeks was inferred, prior to the HFEA) did not apply there. The rate of later term abortion did not suddenly decrease in Scotland after 1990, which indicates that it is not the law which prevents women from aborting late in term.

The reason there are relatively few late abortions, even before 24 weeks, is not because women are refused such operations, but because few requests are made. Late abortion is not an easy option for women. Often, and almost always in NHS hospitals, late abortion involves an induced labour similar to that which the woman would have experienced at term – the difference being that, prior to the induction, a doctor will have passed a needle through her abdomen into the fetal heart, to ensure there is no live birth. Those women, fortunate enough to be cared for in services where they are offered a surgical alternative under general anaesthetic, still endure a emotionally taxing time.

Women requesting such procedures are not a callous breed set apart from other women. Abortion counsellors confirm that women frequently want to know details of the procedure, and what the fetus will feel. Often they want to know what will happen to the fetal remains and they are concerned that they will be treated with respect and not just discarded.

In 1998, of the 88 abortions carried out after 24 weeks, six were at 35 weeks or later. The latest was carried out at 38 weeks. There are two ways to respond to women undergoing this type of abortion. Either the woman concerned can be considered as somebody who needed to be constrained by law and forced to complete the rest of her pregnancy. Alternatively, one can ponder the awfulness of the situation that made this woman, undoubtedly with the approval of her doctors, decide that it was better that the pregnancy ended without a live birth, even so close to term – in which case you might conclude that she must have been the most desperate woman in the world.

Women’s access to late abortion should be defended both in law and in practice. The few women that request abortions later on in pregnancy do so because they have specific circumstances that drive them to conclude that it is better if their pregnancy does not result in a child. Neither advances in fetal physiology, nor the development of fetal medicine and neonatal intensive care, will affect these circumstances. These medical advances have wonderful implications for those with problem pregnancies where the baby is wanted – but have little relevance to women who feel unable to carry their pregnancy to term. A woman who feels repulsed by her pregnancy once that she has learnt that her partner is leaving her for another woman is unlikely to be moved by the latest knowledge about nociception.

Women do not request late abortions because they are ignorant of fetal development. Science may now be able to tell us more than ever before about fetal development, and there is clearly lots to more to learn, but it is arguable whether this is relevant to abortion decisions, and that such decisions will be – or should be – affected by it.

(b) Mid-trimester abortion

It is not only third trimester abortion which has come to be considered less acceptable than early abortion. Second trimester abortion is also seen as less justifiable than abortion early in pregnancy. ‘If a woman needs an abortion why doesn’t she request it earlier?’ is the often-asked question.

Pro-choice organisations often suggest that their aim is in part to eradicate later abortion, and claim that if it were made easier for women to get abortions at early gestations, later abortions would become unnecessary. While of course it should be made as easy as possible for women to access early abortion, it is misplaced to suggest that late abortion might, on this basis, disappear.

In the past, later abortion could be justified through pointing to delays in the system. A woman might request an abortion at ten weeks pregnant and suffer months of delays while she waited for an appointment. Today such delays are far less common. One recent study showed that only 13 percent of second trimester abortions could have been managed earlier by service improvements (4). Most women requesting later abortions had not realised they were pregnant, had denied the pregnancy or were in circumstances where a wanted pregnancy had become unwanted.

An article by Anna George, clinical medical officer and Sarah Randall, consultant in family planning, both of the Ella Gordon Unit, St Mary’s Hospital, Portsmouth, reported on reasons women gave for late abortions (5). Reasons given were grouped into unpreventable or preventable. The records of all 111 women who had an appointment during the first year of a second trimester Unplanned Pregnancy Counselling Clinic (UPCC) were examined retrospectively. Ninety women received counselling. Seventy-one of the 90 women counselled had reasons recorded for late presentation. Just 12 potentially preventable late presentations were found. Reasons for late presentation were various: concealed teenage pregnancies, perimenopausal women, or women with irregular menstrual cycles, who did not associate amennorhea with pregnany, pregnancies that were initially wanted.

Abortion, after the first twelve weeks of pregnancy, will not become unnecessary, however much access to abortion improves. It is essential that those women who find themselves needing abortion when their pregnancy has reached the second, or third trimester, can avail themselves of the service they require. In a context where support for abortion seems to be increasingly dependent on the extent of fetal development, rather than what women need, it is more important, not less, that those who are pro-choice make the case for late abortion.

(c) Fetal pain

One focus for the discussion of the ‘problem’ of late abortion has been based on the claim that a fetus feels pain. The debate about fetal pain originated with discussion that began in the late 1980s, as a consequence of research which indicated that a fetus is capable of a behavioral response to sensory stimulation (6).

Advances in fetal surgery, which include placing valves into the heart and injecting red blood cells into the liver to prevent anaemia, meant that neonatal surgeons and experts in embryology were becoming more and more concerned about the potential consequences of invasive fetal surgery. This concern was given a major boost when Dr Anand, then of the John Radcliffe Hospital, Oxford, demonstrated that newborn babies (neonates) undergoing surgery did better if they were given anaesthetics of a kind usually used only in adult surgery (until very recently, neonates were not given anaesthetic before surgery).

In 1992, the New England Journal ran an editorial calling on clinicians to ‘Do the Right Thing’ concluding that ‘it is our responsibility to treat pain in neonates and infants as effectively as we do in other patients’ (7). Since this time, and extensive discussion has taken place in the pages of medical journals, about the nature of pain, with many eminent scientists concluding that they have much more to learn about this phenomenon.

Greater knowledge about the causes of pain can only be beneficial to society, and it is important that clinicians do ‘do the right thing’ where neonates and infants are concerned. It is, however, extremely unfortunate that a discussion about best clinical practice for new-born babies has led to a debate, based on the notion that a fetus can feel pain, about the ‘problem’ of late abortion.

As far as late abortion is concerned, medical practitioners have only one patient: the woman. In this respect, the only ethical issue at stake is how to ensure she gets the best care possible, and that the abortion is carried out in a way that does not damage her health. Given that the object of the exercise in late abortion, unpalatable as many may find it, is to ensure that the fetus is not born alive, discussions of fetal pain are substantively irrelevant in this context. The only sense in which ‘fetal pain’ matters, with regard to abortion, is where (as we discuss later) women express concern about it.

It would be easy to imagine that the reason why the question of pain and late abortion have become connected is because the anti-abortion lobby have exploited the issue. Undoubtedly this has happened to some degree, especially in the USA. But more recently, anti-abortion activists have distanced themselves from argument against abortion made on the grounds of fetal pain. For example, in an article written in anticipation of a conference about fetal pain to be held in November 2000 at the prestigious UK Royal Institution, Jack Scarisbrick, chairman of the UK anti-abortion organisation LIFE, made it clear that fetal pain is irrelevant to the anti-abortion cause: ‘Our primary objection is that abortion is wrong because it is a violation of the right to life’ (8).

The main cause of the debate about abortion and fetal pain is, in fact, public pronouncements made by scientists with no connection to the anti-abortion lobby. For example, Professor Vivette Glover of Queen Charlotte’s Hospital has ensured that this issue has stayed in the news, with her frequently expressed concern that fetuses undergoing late abortion may feel pain. Her case is that the present state of knowledge about pain does not allow us to be sure that fetuses do not feel pain, hence we should ‘err on the side of caution’ and give fetuses anaesthetic when a late abortion is to be performed on a woman (9).

Issues associated with the science of pain have been discussed extensively elsewhere (10). In this paper, we will state our position very briefly.

That the term ‘pain’ has been ascribed to the responses a fetus has to stimuli has less to do with an objective analysis of pain than it has to do with the emotional processes of those who use the term ‘fetal pain’. Since a fetus moves, or screws up its face, it can appear to be ‘suffering pain’. However, the fact that nobody has any memory of being born – which if a fetus can indeed feel pain would be expected to be a very painful process indeed – suggests that there is a great deal of difference between what might look like pain, and what the experience in fact constitutes. What needs to be said is that fetuses do not, an cannot, feel pain – not at 10 weeks, 26 weeks or 30 weeks – because pain-experience depends on consciousness and fetuses are not conscious.

The key issue for us, and one which is simply not taken seriously in most debates about fetal pain, is the implications of ‘erring on the side of caution’ for women undergoing abortion. Professor Glover has stated that she does not want to alarm women who have late abortions, with her pronouncements about the pain abortion may cause to their fetuses. But this is inevitably the outcome the kind of statement she makes.

There is much evidence now to attest to the fact that women presenting for abortion, in fact at earlier and earlier gestations, are now extremely concerned about whether their action in choosing abortion will cause a fetus to suffer. It is important to remember that those women who attend for late abortion will frequently be aborting a much-wanted pregnancy, where disability has been diagnosed in the fetus. The procedure they will undergo is long and arduous – much like labour. The emotional strain is surely enough already, without the additional (albeit unintended) strain of believing they are causing the fetus to suffer by opting for abortion.

In all abortion, but perhaps especially in the case of late abortion, ensuring clinical practice takes steps to reduce the concerns of the woman is paramount. It is for this reason that in the UK, the RCOG recommends that measures to stop the fetal heart should be taken in all terminations after 21 weeks gestation. This is to ensure that there is no possibility of the abortion resulting in a live birth (11).

After 26 weeks, the guidelines suggest that it is not possible to know the extent to which the fetus is aware; and so after this gestation it is suggested that ‘methods used during abortion to stop the fetal heart should be swift and involve a minimum of injury to fetal tissue.’ Even if the fetus is not aware, these guidelines are appropriate to avoid unnecessary distress to the woman, and it is this concern that should be at the centre of abortion practice. The paramount interests of the woman in abortion procedures is an important principle. The pregnant woman is the patient while the fetus is cared for on her behalf.

Ann Furedi is director of communications at the British Pregnancy Advisory Service (BPAS).

Dr Ellie Lee is lecturer in sociology at the University of Southampton, UK, and co-ordinator of Pro-Choice Forum.

Read on:

Part four: Abortion for fetal abnormality

Part five: Is abortion a health risk?

(1) Sheldon, Sally. 1997. Beyond Control, Medical Power and Abortion Law (Chapter 6). London: Pluto Press.

(2) Office for National Statistics. 2000. Report: Legal Abortions in England and Wales 1999. London: ONS.

(3) Easterbrook, Greg. 2000. ‘What neither side wants you to know. Abortion and brain waves’. New Republic, 31 January.

(4) Jackson, Emily. 2000. ‘ Abortion, Autonomy and Prenatal Diagnosis’. Social and Legal Studies
Vol. 9 (4) 467-94; Jackson, Emily. Ethics and British Abortion Law, available at Pro-Choice Forum (Resources / Abortion Law)

(5) George, Anne and Randall, Sarah. 1996. ‘Late presentation for abortion. The British Journal of Family Planning 22: 12-15.

(6) Derbyshire, Stuart. 2000. The Science and Politics of Fetal Pain, available at Pro-Choice Forum (Commentaries)

(7) Rogers MC. 1992. ‘Do the right thing: Pain relief in infants and children’. New England Journal of Medicine 326: 55-56.

(8) Sheridan, Mary and Highfield, 2000. Roger. ‘Can Late Abortions Cause Suffering in the Unborn Child’. Daily Telegraph 11 October.

(9) Highfield, R. 2000. ‘Babies may feel pain of abortion’. Daily Telegraph 29 August; Highfield, R. 2000. ‘Brain scientist backs abortion pain relief call’. Daily Telegraph 30 August; Meek, James. 2000. ‘When does pain begin?’. The Guardian, 31 August; Macdonald, Victoria. 1998. ‘Abortion doctors may give foetuses painkillers’. Daily Telegraph, 9 August.

(10) Derbyshire, Stuart. 1999. ‘Locating the beginnings of pain’. Bioethics 13: 1-31; Derbyshire, Stuart. 2000. The Science and Politics of Fetal Pain, available at Pro-Choice Forum (Commentaries); Derbyshire Stuart. 1995. Comment: Do fetuses feel pain during abortion? Abortion Review 57: 1-2; Derbyshire, Stuart and Furedi, Ann. 1996. ”Fetal pain’ is a misnomer’. British Medical Journal 313: 795.

(11) RCOG. 1997. Report of the Working Party on Fetal Pain. London: RCOG.