Judging abortion

Who should decide what abortion laws we should have – unelected judges or parliament?

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 – but 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 to operate.

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 Prosecution 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 woman.

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 crimes 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 right to 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 Civil

(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 Curate wins abortion challenge, BBC News, 1 December 2003

(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 v Ireland (15 EHRR 244)

(5) See Antenatal care: routine care for the healthy pregnant woman: NICE Clinical Guideline, October 2003, chapter 9, para. 9.2; DoH press release 2003/0438

(6) St George’s NHS Healthcare Trust v S (1999) Fam 63