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Abortion - Lecture Notes 23/1/2020

Stella Coyle

The debate on abortion and it's legality, is one that strongly comes from ethics.

Pre 1967

The offences against the person act [1861] was what guided it:

Against the law to procure, induce, attempt, supply the means to cause a misscarriage

This law was never repealed.

Abortion is still a criminal offense if it occurs outside the remit of the abortion act.

1929 If the infant was still within the womb, it was not a criminal offence if the abortion was done in good faith in attempt to save the life of a woman

1938 - R v Bourne

The common law started to test the statutes.

A 15yr old had been raped, a Dr Bourne performed an abortion. Was brought to trial under the 1861 act.

The judge linked the 1861 and 1929 acts. And decided the prosection had to show that Dr Bourne had not acted in good faith to preserve her life (including her mental and physical health)

The abortion was found to be lawful as it was preserving her health

Backstreet Abortion

As lack of contraception, backstreet abortion was the leading cause of maternal deaths.

Rich woman after Bourne were able to get private abortions, poor women more at risk from backstreet abortions.

DIY abortions were even more fatal than the backstreet abortionists

1967 - Abortion Act

David Steele's private members act.

Was amended by the HFEA 1990 (bringing the time limit down from 28 to 24 weeks)

(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—

So not be guilty of an offence, this isn't legalising, this is getting exceptions to the 1861 act

And how do you show if someone has or hasn't acted 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

a - this is the social clause, the most common uses

The time section only applies to section a

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

It's only section 1a and d that need two medical practicioners

And section d doesn't get held under that 24 week limit

What do we mean by substantial risk or serious handicap though

(2) In determining whether the continuance of a pregnancy would involve such risk of injury to health… account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.

So we're taking in the persons social context

Northern Ireland

Northern Ireland allows abortion as of March 2020 due to law brought in 2019

The Question

Sheldon argues that the law is based on outdated, punitive moral values. That it needs fundamental reform.

(The essay is asking about the law, through the lens of values - so it is ethics heavy)

Decriminalisation

RCGPs surveyed their members: 62% supported decriminalisation, 15% were neutral, 19% opposed

BMA, RCN, Royal College of Midwives already support decriminalisation.

Under english law a foetus isn't a person until it born (legally)

But it's not a non-entity

Attorney-General's Reference (No. 3 of 1994): rejected the idea that a foetus wasn't just a part of the mother, nor was it a person in it's own right. A foetus is a unique organism.

ECHR and the Margin of Appreciation

Does article 8 conferred a right to abortion? The ECHR v Ireland case of 2010 decided no it doesn't, and it also avoided making a statement about the right of the foetus.

This case decided there was no european definition about the beginning of life, so the court couldn't impose one. The membership had a margin of error to determine what the definition would be.

A Margin of Appreciation - this margin of error, this margin of discretion as to what the answer should be.

How should we balance the interests of the pregnant woman versus the foetus

I haven't really taken notes here, was more interesting to listen. I think Mary Anne Warren is closer to it than Judith Jarvis Thomsan

Theres Moral Value versus Moral Status.

Lot's of things have moral value to varying degrees. Moral Status is the strongest form of moral value, but who should have it? Moral status is a you have it or you don't.

I think this is bollocks. Mary Anne Warren said that though! Argh, i thought I liked her approach.

When should you get moral status?

  • Conception
  • Gradualist/Moderate
  • Being a 'person' (this could be after birth)

See Great Debates in Medical Law

Conception

The versions of this are:

  • we don't know if a foetus is a person, so best to assume it is
  • they are a person by the potential that they have to become one
  • they are a person by the fact they are a person

I really need to go through the lecture notes to decide