As the debate over the pros and cons of the 1967 Abortion Act warms up again, Ann Bradley asks why we need a law on abortion at all
Abortion not 'on request' but without restriction
October marked the thirtieth anniversary of the legalisation of abortion in Britain, an occasion which prompted another round of debate about the shortcomings of the 1967 Abortion Act. This time around, those who argue that the Act is too restrictive outdid the anti-choice lobby who complain that it is too liberal. And rightly so. On paper, the legislation which regulates the termination of pregnancy is an affront to women. The 1967 Abortion Act does not give women the freedom to end unwanted pregnancies, nor was it intended to. The Act confirms that abortion is illegal and then outlines quite strictly defined circumstances which are exceptions to this general rule.
Unlike in most countries, where abortion in early pregnancy is available at the request of the woman, in Britain, abortion is permissible only if two doctors agree in good faith: (a) that the continuance of the pregnancy would involve risk to the life of the pregnant women, or risk of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated; or (b) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
The woman's 'actual or reasonably foreseeable environment' can be taken into account which means that abortion can be provided on 'social' grounds. Despite this, pro-choice critics of the 1967 Abortion Act rightly complain that the law demeans women, turning them into supplicants forced to plead their case to a doctor who might not agree to refer them for the procedure. In law, the fact that a pregnancy is unwanted is not a good enough reason to end it.
However, although the Abortion Act appears highly restrictive on paper, it is interpreted liberally by most doctors. They understand that accidental pregnancy is a fact of life - 50 per cent of pregnancies are not planned - and that abortion is consequently a fact of life too. Most doctors are eager to reduce their caseload and few are enthusiastic about the prospect of managing a resentful woman patient through an unwilling pregnancy. And most find that they can, with a clear conscience, legally refer a woman for abortion on the grounds that there is a greater risk of damage to her mental health from forcing her to continue the pregnancy than by conceding to her request for an abortion.
Anti-abortion campaigners argue that such a liberal interpretation of the law was never intended, and that current medical practice provides de facto abortion on request. But their protests have fallen on deaf ears, largely because the law as it is currently interpreted serves policy-makers and polit-icians reasonably well. A law which did not allow the abortion of unwanted pregnancies would cause all manner of problems for a society which shares a strong belief that children should be wanted, and that parents should be able to support them and be willing to make sacrifices for them. Growing social concern about 'unfit' or 'problem' parents does not easily coexist with a disposition to force people to bear children they do not want and by their own admission cannot care for.
But however liberally the abortion law is interpreted, it remains a problem for women. Even those who face the most sympathetic of doctors are forced to engage in a demeaning game of 'let's pretend'. The woman pretends that she cannot cope with a child and the doctor pretends to believe her. This is a particular insult to the many women who know that they could cope with pregnancy but simply do not want to.
Pro-choice critics of the 1967 Abortion Act have called for the British abortion law to be reformed to bring it more into line with contemporary thinking. The 1967 Act was a product of its times. It reflected and codified the concerns of the 1960s and it was shaped by the debates and controversies of its day. British abortion legislation predated the women's liberation movement. It was not motivated by demands for women's equality or by a sense that women should have the right to opt out of motherhood. In Britain, the change was in the main brought about by a desire to regulate and control abortion practice.
Even before the 1967 Act, abortion was becoming increasingly available. The popular image of backstreet abortions involving hot baths and gin, coat hangers and knitting needles is far from the reality. Some abortions were carried out in this fashion and women suffered and died. But frequently abortions were performed by gynaecologists in NHS hospitals, and a profiteering private sector was well-established. By the 1960s even backstreet practitioners were becoming proficient: often they were midwives or retired doctors who believed themselves to be providing a necessary community service. In short, abortion was happening and needed to be controlled.
The 1967 Act was intended to clarify the circumstances in which doctors might and might not perform an abortion and defend their actions. It was as much about restricting access to abortion, and who could do it, as it was about allowing it. Pro-choice campaigners have long insisted that the law should be changed to provide abortion on request, at least in early pregnancy, and that only one doctor should have to give approval. But the limited character of their demands for reform is a sign of their low expect-ations. Ask a speaker from the pro-choice campaigns why they focus on abortion on request in early pregnancy and they will tell you it is unrealistic to call for abortion on request throughout pregnancy; it is better to do things step by step.
In reality, a call for abortion on request in early pregnancy is not a step towards the abortion law we need, and it could even turn out to be a step backwards. The introduction of different criteria for an abortion at 12 weeks and one at 13 weeks implies that there is a change in the status of the fetus which means it should be treated differently. Just as, in codifying the circumstances when abortion can be legal, the 1967 Act reaffirms when it is not, so an amendment for abortion on request up to 12 weeks ratifies that women should not have access to abortion on request after 12 weeks.
It is bad enough that the law currently differentiates between legal abortions before 24 weeks of pregnancy and illegal ones after that point, implying that were it not for the state's impos-ition of these restrictions, women would be wantonly disposing of viable fetuses a few weeks before birth. Introducing a legal distinction between first and second trimester abortions would mean accepting that a woman needs the state to moderate a decision about her pregnancy and ensure that she stays on the right side of the decency line. In reality, women do not need politicians or judges to decide for them whether an abortion is a right and moral choice at any stage in pregnancy.
A woman's need for her pregnancy to be terminated may not lessen as her pregnancy advances. It is often argued that, if abortion were to be available on request in early pregnancy, fewer women would require later termin-ations. That sounds sensible enough. But it assumes that women request later abortions because they cannot get one earlier. In fact, improvements in abortion provision mean that this is true for a decreasing number of women. Most women requesting abortions after 12 weeks do so for unavoidable reasons: perhaps they failed to realise they were pregnant, perhaps a wanted pregnancy has become unwanted. Their need is as great as that of the woman who has just missed her period. Women from Spain and France - countries which have abortion on request in early pregnancy - routinely travel to Britain for later abortions, because their liberal early provision has been bought at the expense of stricter controls on later procedures. We cannot afford this compromise. The relatively liberal provision of late abortion in Britain is something that needs to be earnestly defended.
It is indisputable that public opinion is more sympathetic to early than to late abortions. But public opinion is not static and, just as the anti-choice movement seeks to convince them that abortion is wrong, so those who support access to abortion have to put a case for why the procedure is needed. It is time to put the case for the abortion law that women really need - that is, no law at all.
Women in Britain do not need a law that allows them to request abortion in legally defined circumstances. The criminal law has no place in the regulation of abortion. The procedure should be subject to no greater restriction than any other clinical procedure. The legal framework which regulates other clinical procedures, from appendectomies to lobotomies, is largely concerned with ensuring that those who perform the procedures are qualified and that the premises in which they are carried out are adequate. There is no law to state that it is legal for a heart specialist to perform a coronary bypass only if his patient meets certain criteria, nor should there be a need for laws to govern the circumstances in which pregnancy can be ended.
Any law that defines when abortion can take place serves to stigmatise abortion and set it apart from other medical procedures. Such laws create an atmos-phere where it is assumed that women should continue their pregnancies unless there are special mitigating circumstances. A more appropriate attitude would surely be that women should continue their pregnancies only if they want to.
Any law that focuses on the need for abortion on request suggests that there are circumstances when that request might not be granted. A law that allowed abortion on request in any circumstances would make no sense. We do not require a law that permits us 'contraception on request' or 'cervical screening on request' or 'accident or emergency treatment on request'. The provision of abortion services should be regarded as a routine part of a doctor's duty of care, with no need for special pleading.
The New Labour government has pledged to reform the archaic 1861 Offences Against the Person Act because it is considered unclear and insufficiently relevant to today's society. Home Secretary Jack Straw has announced that he intends to include in it a number of new offences against the person, such as stalking and racial violence. Instead of thinking of new crimes to create, it would be good to think that the new government, in the spirit of commitment to women's equality, might simply delete the clause of that Victorian Act which makes the procurement of miscarriage a criminal offence. If it were not an offence to induce an abortion, then the 1967 Abortion Act which makes it legal in certain circumstances would be redundant, and abortion could finally find its rightful status as just another method of fertility regulation.
Reproduced from LM issue 105, November 1997