A doctor's right to choose

The 1967 Abortion Act, which became law 25 years ago in October, has often been celebrated as a breakthrough for women's liberation. But what rights do women really have under the act? Anne Burton thinks its silver anniversary is no cause for celebration

The British Medical Journal recently carried an article by a London doctor explaining why she had refused to refer a patient for an abortion. 'The patient', wrote Dr Trisha Greenhalgh, 'was 38 and had a husband, three children and a marvellous nanny. She wanted a fourth child, but not quite yet. They had booked a skiing holiday for Christmas. Next spring would be a good time to get pregnant. In fact, while she was here she would like to request a home delivery for the definitive pregnancy. Meanwhile she wanted one of those green forms and a standard letter to a local NHS abortion clinic.'

Dr Greenhalgh refused to sign the form. 'I am a feminist', she explained, 'but I am not a rubber stamp. I am a thinking and feeling professional and I must live with the clinical and ethical decisions I make. I, the doctor, also have a right to choose'. (BMJ, August 1992)

Dr Greenhalgh's plea for the right to choose is rather ironic. Under current abortion law, doctors have considerably more 'right to choose' than the women who visit them.

A battle won?

Britain is one of the few industrialised countries that does not allow abortion on request at any stage in pregnancy. The 1967 Abortion Act clearly states that abortion is an offence unless two doctors agree 'in good faith' that a woman meets criteria laid down in law (see page 15). Under British abortion law, a planned skiing holiday is not a sound reason for referral. A doctor with liberal inclinations might be prepared to argue that under these circumstances the continuance of a pregnancy would damage the patient's mental health, but he would be pushing his luck.

'Pro-choice' organisations across the country have been preparing to commemorate the anniversary of the Abortion Act, which became law on 27 October 1967. The Act has been variously described as 'an important contribution to women's equality' and 'a major battle won in the war for the liberation of women'. But such claims don't stand close scrutiny.

It is undeniable that the qualified legalisation of abortion in 1967 contributed to improvements in the general health of women. But it failed to extend women's rights in regard to abortion in any way at all.

It has become relatively easy for a woman to obtain an abortion in Britain - providing a woman is sussed enough to work the system. Abortion is now the most common operation in Britain. One in five pregnancies are estimated to end this way, with doctors carrying out over 200 000 abortions in Britain each year.

Bending the rules

But this situation is not a testimony to the liberalism of the abortion law. Rather it's a reflection of the way that the rules are bent by doctors with the tacit agreement of the Department of Health. Medical professionals recognise that forcing a woman to have an unwanted child is a far from ideal start to a family. Consequently, most doctors are prepared to interpret the law in such a way that a woman can be referred.

The current abortion law is susceptible to creative interpretation. Modern early abortion methods are so safe that the risk of a woman dying from an early abortion is less than the risk of her dying in childbirth. Pro-choice doctors argue that it can therefore be said that in all pregnancies (to quote the Abortion Act) 'the continuance of the pregnancy would involve risk to the life of the pregnant woman...greater than if the pregnancy were terminated'. Other doctors play out a sort of charade with their patient. The woman says she will be very distressed if she has to continue the pregnancy, the doctor agrees that such distress would constitute an injury to her mental health.

The power to decide

This situation means that some women have little problem obtaining a referral for an abortion. Or, if they do experience problems, it is a consequence of the failure of the NHS to dedicate sufficient resources to the provision of abortion rather than to the strictures of the law. But it's worth remembering that - as Dr Greenhalgh's patient discovered - it is doctors, not women, who have the right and power to decide how they interpret the law.

Government officials recognise that the way in which the law is currently administered gives the authorities the best of all worlds. The regulation of abortion by law is important to them, because it marks it out as different to other operations. The only criterion required for a surgeon to perform an appendectomy is that a patient has a medical problem with his appendix such as to require medical intervention. Heart by-pass operations, varicose vein removals and even lobotomies are not regulated by law - except in so far as they have to be carried out by a qualified medical practitioner in a licensed place. The different treatment of abortion underlines the fact that it is considered an illegitimate operation which the authorities only allow on sufferance.

This method of regulating abortion allows the authorities to maintain what could otherwise be seen as a contradictory stance. On the one hand they can disapprove of abortion and present it as a 'moral problem' or 'unnatural act'. At the same time, they can allow abortions to take place in circumstances where childbirth would be undesirable - for example, in cases where the child would be handicapped, or the mother too young to care for it, or where an additional child might destabilise an existing family.

Their needs, not ours

Black women have often noted that their experience of abortion provision in Britain is very different. Where middle class white women are encouraged to have children and discouraged from abortion, black women often find the reverse situation. They are encouraged and even pressured to have abortions by racist doctors who would prefer fewer black children in the world.

It would be naive to expect British abortion law to give women the right to abortion. It was never intended to. The popular notion that a woman's right to abortion was won in the 1960s as a consequence of pressure from the women's movement belongs more in the realm of feminist mythology than in political fact. It is surprising that these myths could ever have developed. The feminist movement had barely emerged in Britain in 1967.

David Steel's Medical Termination of Pregnancy Bill, which became the 1967 Abortion Act, was introduced, and supported by, the pillars of the British establishment. Twenty-five years on, it's worth recalling that the abortion law was drafted to meet their needs rather than ours. When Steel introduced the Bill to the House of Commons he bent over backwards to stress that, 'it is not the intention of the promoters of the bill to leave a wide open door for abortion on request'.

For the British establishment, the regulation and provision of abortion has always been a matter of social control rather than an issue of women's rights. It is one of the measures through which the institutions of the state manage society, with a view to maintaining order and stability.

The first aim of the 1967 Abortion Act was to regulate a medical practice which was perceived to be out of control. Before 1967 the legal position of abortion was foggy. Legislation dating back to 1861 outlawed the procuring of a miscarriage and established a blanket ban on abortion. This was tempered in 1929 by the Infant Life Preservation Act, which allowed abortion providing 'such an act were done in good faith with the intent of saving the life of the mother'. In 1938, a case where a doctor carried out an abortion on a 14-year old rape victim resulted in a high court ruling that abortion was lawful not only to save life, but also to prevent a woman becoming a 'physical and mental wreck'.

This legal jumble left unclear the conditions under which doctors could terminate a pregnancy. But while there was doubt about the legality of the operation, nobody could doubt that abortions were taking place in ever increasing numbers. Wealthy women had no problem obtaining abortions from private practitioners 'to preserve their health' - providing they could afford the fee. Poorer women sought the help of unqualified abortionists. Estimates put the number of 'backstreet' abortions at between 15 000 and 100 000 a year. Throughout the 1960s a growing number of NHS practitioners began to follow the lead of their private colleagues. In 1961, 2300 abortions took place within the NHS; by 1967 the number had risen to almost 10 000.

The rising number of abortions became a matter of concern on two counts. With amateur operations resulting in the deaths of around 50 women a year and the hospitalisation of between 30 000 and 40 000, influential doctors' organisations made clear that it was unreasonable to expect their members to deal with the dire medical consequences of an ineffective law.

More important, however, were the worries in establishment circles that the law was being openly flouted. Lord Silkin, supporting Steel's bill in the House of Lords, drew attention to the fact that the current law on abortion was unenforceable. Women would not testify against illegal abortionists, the police wouldn't arrest them and the courts wouldn't convict them. 'The total number of convictions for illegal abortions', he explained, 'is only about 50 a year, or one conviction in 2000 cases. Clearly the law has broken down. It is neither respected nor obeyed'.

Curbing 'problem' people

By 1967 public opinion was substantially in favour of law reform, with opinion polls registering 75 per cent support for legal changes to permit abortion. Public support had been strengthened by the thalidomide disaster in the early 1960s, when thousands of women gave birth to severely deformed infants after taking a sleeping drug during pregnancy.

Public support for legalised abortion reflected the liberalisation of attitudes associated with the sixties. The willingness of the establishment to reform abortion law also reflected a mood of the times: the belief that social problems could be alleviated by the benign intervention of paternalistic government, which could compensate for the shortcomings of 'inadequate' individuals. From this perspective, abortion was seen as a potential way of dealing with problem women from problem categories. Parliamentary debate on Steel's bill provided a striking example of middle class prejudice in favour of improving British society by curbing the numbers of the lower orders.

In the eyes of the British establishment, the provision of abortion for certain types of people would benefit society as a whole. Suitable cases for treatment were:

• women who were medically unfit to bear children
• women who were psychologically disturbed
• women from 'deprived' or 'demoralised' backgrounds or whose families were judged to be too big
• women who were too young to raise a family.

Dr John Dunwoody MP summed up one of parliament's main concerns when he supported the bill at its second reading with the argument that 'we have all too many problem families in many parts of the country'. Dr David Owen appealed to MPs to 'think of the doctor who is faced with the problem of a woman with seven children who tells him that she shares her bed with her husband and two other children, with perhaps two other children sleeping in the same room. This sort of thing still occurs in this country, and we must face it'. Owen made clear that he did not approve of abortion 'for the person with four bedrooms and a bedroom for each child'.

Social engineering

For parliament, abortion reform was seen as a way of helping to eliminate the consequences of poverty. It was a means of minimising the numbers of delinquents, inadequates and deprived individuals, and a way to maintain social responsibility and stable family structures. Abortion became another component in the establishment's general perspective of social engineering - dealing with the poor and other 'social misfits', not by combating poverty, but by curbing their reproduction.

It is important to remember that abortion law reform was never meant to extend women's rights. Its aim was to bring abortion under medical control, and allow 'unsuitable' pregnancies to be terminated. It was only the coincidence of the act with the 'swinging sixties' which created the impression that a liberalisation was taking place.

In their desire to defend the 1967 Act against the anti-abortion lobby, pro-choice supporters often forget that the law does not give women the right to abortion in the here and now. This approach does women no favours. At best, it ignores the problems faced by many women who find it difficult to obtain the abortions they need. At worst, it lulls women into a false sense of security by telling them they have the right to an operation, when they do not and when they may not be able to obtain it in practice.

Those who believe that women should have the right to abortion need first to face up to the problems of abortion provision today. The 1967 Abortion Act is not, and was never intended to be, the solution to our problems.