Sex selection: what Britain’s abortion law really says

Last week, the Crown Prosecution Service (CPS) announced it was not going to bring criminal charges against two abortion doctors. These doctors had been secretly filmed by pregnant female journalists from the Telegraph who pretended they were seeking an abortion because they did not want to have a baby girl. The filmed doctors responded sympathetically to the undercover hacks and, following the story’s publication in February 2012, all hell broke loose.

The then secretary of state for health Andrew Lansley demanded action. This prompted the Care Quality Commission (CQC) to do spot checks on all abortion clinics in the country, (an unusual action for the CQC which not only whipped up an unhelpful discussion about procedures in clinics for signing the necessary forms to authorise abortion, but also cost around £1million).

The CPS’s decision not to bring charges against the abortion doctors is merely the latest instalment in an 18-month-long saga, one in which abortion providers have been under incredible scrutiny. Throughout, we have been repeatedly told that abortion doctors are out of control and act as if they are above the law.

The CPS said that while it would be possible to prosecute the doctors, it was not going to do so, partly on legal grounds and partly on ‘public interest’ grounds. In response, those keen to see the abortion doctors charged have spent the week doing as much as they can to paint a picture of an abortion service that is doing Britain’s women, and the wider society, a disservice. They simply cannot believe the CPS dropped the case. Fanning the flames, health secretary Jeremy Hunt said: ‘We are clear that gender selection abortion is against the law and completely unacceptable… [The refusal of the CPS to bring charges] is a concerning development and I have written to the Attorney General to ask for urgent clarification on the grounds for this decision’.

Self-proclaimed feminists have taken Hunt’s side. Channel 4 News presenter Cathy Newman wrote: ‘The selective abortion of girls is a crime. Simple as. So why no criminal charges?’ Shadow attorney general Emily Thornberry wrote to the director of public prosecutions, Keir Starmer, expressing her outrage at the decision on women’s behalf.

Sadly, I have only read one commentary so far that explains properly the legal logic of the CPS decision and its basis in abortion law. In the face of this, those of us who believe in the importance of accessible abortion and women’s right to choose, and in the need for well-informed public debate, need to do as much as possible to set matters straight. It was for this reason that I, alongside colleagues from the University of Kent law school and the London School of Economics, organised a meeting in June 2012 to discuss myths and misconceptions about abortion law. The discussion has now been published as part of a British Pregnancy Advisory Service document, Britain’s Abortion Law: What it says and why.

Here are some key points from Britain’s Abortion Law:

1) There are no abortions under British law that are de facto legal. All attempts to ‘procure a miscarriage’ are criminalised under the 1861 Offences Against the Person Act. That is, abortion in Britain is a criminal act. It is this criminalisation of abortion that the 1967 Abortion Act addresses. This act does not decriminalise abortion. Rather it creates a legal defence for doctors who, when ‘acting in good faith’, authorise abortion on the basis of one of the grounds set out in the act. These grounds are not specific and do not make mention of specific sorts of reasons a woman might give for an abortion. Most frequently, women obtaining abortions do so legally on the following ground:

‘[T]hat 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.’

2) Because this is the law, the CPS was correct to say that it could have brought a prosecution, on the basis that the above ground was not met. Indeed, it would be theoretically possible for the CPS to prosecute abortion doctors daily. However, the CPS could not have prosecuted simply because the request for abortion was made on the grounds of fetal sex. Indeed, as Britain’s Abortion Law explains:

‘Reason of fetal sex is not a specified ground for abortion within the Abortion Act, but nor is it specifically prohibited. Other reasons for abortion that are widely accepted as “good” reasons – for example, if the woman has been raped – are not specified either.’

As opposed to the likes of Cathy Newman, who pontificates about the evils done to womankind by ‘sex selection abortion’, there are instances where humane and caring doctors might deem the mental- or physical-health needs and interests of the woman who believes a daughter would make her life intolerable, as sufficient grounds for an abortion.

It is staggering that two consecutive secretaries of state for health have made entirely incorrect statements in public about the law. Perhaps erstwhile feminist journalists and politicians should put their minds to responding to this outrage, given the damage it has done to the morale of those working in the abortion service.

3) The term ‘acting in good faith’ is critical to the operation of the abortion law:

‘To show that an opinion has been formed “in good faith” does not mean that authorising an abortion must be the “right” course of action, simply that the doctor has not been dishonest or negligent in forming that opinion. What makes an abortion lawful is the doctor’s opinion that there are lawful grounds for the procedure, rather than the fact that those grounds exist. So, for example, if two doctors believe in good faith that abortion carries less risk to a woman’s physical or mental health than carrying the pregnancy to term, this makes the abortion legal – even if, in the eventuality, it would have been safer to carry the pregnancy to term (for example, if the abortion resulted in death or injury). Similarly, if a woman states that she cannot afford to continue the pregnancy, the doctor is not obliged to check that she really is lacking in funds.‘

This is why the CPS stated thus:

‘[W]hen looking at the culpability of the doctors in this case, we must take into account the fact that doctors are required to interpret the law and apply it to range of sensitive and difficult circumstances which are not set out in the legislation. The evidence in this case was finely balanced and the law gives quite a wide discretion to doctors to determine when a risk to the health and wellbeing of a pregnant woman exists.‘

This is not a case of ‘doctors being above the law’. Rather, we have a law that places abortion decisions in the hands of doctors. They have to be able to use their judgement, and ‘interpret the law and apply it’. To argue, given that this is the law, that doctors should then be scrutinised and prosecuted because their decisions are not to someone’s liking is, in effect, to make a mockery of the entire basis of the 1967 Abortion Act. If those criticising the decision of the CPS want the police to decide whether a woman should be entitled to an abortion, this is the right way to go about it.

Dr Ellie Lee is reader in social policy at the University of Kent, and director of the Centre for Parenting Culture Studies (CPCS), and co-author of the forthcoming Palgrave book, Parenting Culture Studies.

Endnote: Britain’s Abortion Law: What it says and why also covers the issue of ‘pre-signing’ forms for abortion (the rationale given for the CQC checks mentioned above). The issues are also discussed in detail in the excellent article ‘The Policing of Abortion Services in England’ by sexual health specialist Sam Rowlands.)