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| Lord (David) Alton |
Much has been written and spoken about abortion time limits in England, Wales and Scotland, most of it ill-informed and often plain incorrect. The fact is that, before the fateful amendments that appeared in the Human Fertilisation and Embryology Act of 1990 which introduced time limits, there was in UK law no abortion time limit in terms of weeks; the time limit, such as it was, comprised the moment for each unborn child (disabled or not) when he or she became "capable of being born alive" [Infant Life (Preservation) Act 1929].
Because of the wording of the 1929 Act it was often wrongly claimed that this Act contained a 28 week time limit; in fact many children are capable of beng born alive before 28 weeks and even before 24 weeks. The imposition of the 24 week time limit in the HFE Act 1990 therefore represented an increase in the previous time limit. Coupled with the removal in the 1990 Act of any time limit for all disabled (and some other) children the changes to the abortion law contained in section 37 were a disaster for unborn children conceived thereafter.
When Mr Alton's Bill failed, as almost all Private Member's Bill do, politicians and pro-life organisations were warned not to continue along the 'time limit' track but these warnings were not heeded. The government of the day introduced its Human Fertilisation and Embryology Bill in 1989 and it was induced by pro-life MPs to include a clause specifying time limits for abortion - the hope was that a time limit of 18/20/22 might be agreed whereas in fact a 24 week limit was agreed for most cases with abortion up to birth agreed for disabled children. In retrospect it can be seen to have been a disastrous strategy which should perhaps have been anticipated at the time.
ALDU's Chairman, Mr David Poole QC (later His Honour Mr Justice Poole) commented upon the successful Second Reading of Mr Alton's Bill in ALDU's newsletter 37 in Spring 1988. Mr Justice Poole considers how the likely result of a proposed 'reduction' of time limits would be an increase in the number of abortions.
Another dangerous aspect of this Bill was the introduction of exceptions, including in particular exceptions for the abortion of disabled children. These exceptions were widened even further in the course of Committee stage of the Bill which followed the Second Reading. As Mr Justice Poole wrote, at the end of his article, "is it permissible, in legislating, to trade off one set of lives for another, in order to achieve a 'better' effect?"The answer to this question, from a pro-life point of view, must be an unequivocal and resounding "No!" A detailed and scholarly discussion of this question can be found in Colin Harte's book, "Changing Unjust Laws Justly".
The law has changed since the article below was written but the basic principles of Mr Justice Poole's words remain relevant today.
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ALDU NEWSLETTER
Spring 1988 Number 37
Abortion and Legislation
by Mr. David Poole, Q.C.
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| House of Commons Chamber |
Mr. David Alton's Abortion (Amendment) Bill has illustrated most, if not all, of the hazards of trying to legislate against abortion. Who, after this, could doubt his courage or goodwill? Physical assault; smears; reduction to the ranks of his own party; he has endured all three. His personal commitment to all the unborn has been clear.
It is impossible to question the man, and in an atmosphere among pro-lifers, bordering on desperation for a victory, any victory, it is anything but easy to question his Bill. But our duty remains to cast a cold eye on all legislation touching on unborn life, whatever its source, and that is what we here attempt.
Firstly, the Bill emerged in final draft only in mid-December 1987. Long before then, this Association was being pressed to express support, not for Mr. Alton, nor for the principle behind his Bill, but for the Bill itself. Obviously we could not and did not do this. Lawyers usually prefer to read contracts before signing them, or advising their clients to sign. And we were a little surprised at the enthusiasm of some of our friends to sign and endorse the Bill before they had seen or read it. The final draft is significantly different from that originally mooted, hedged about with no fewer than five exceptions to the '18th week' principle. These exceptions, like the principle itself, are the product of Mr. Alton's wish to fashion a Bill that will both save human lives and attract significant support in Parliament. It is an exceptionally difficult feat of balance that he attempts. Does he bring it off?
Of the '18th week' principle itself, supporters of the Bill argue thus: something over 8,000 abortions are performed annually after the beginning of the 18th week; provided the Bill is passed, those lives will in the future be saved (subject, presumably, to the five classes of exception). But is it true that simply lowering the upper time limit for abortions reduces their number? Consider the table set out below.
Table of Abortion Rates
Country
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Rate of Pregnancies per 1,000 women aged 15-44 in 1984
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Proportion of pregnancies ending in abortion in 1984
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Time limits for abortion on request
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England and Wales
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12.8
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17.3
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Capability of being born alive (28 week presumption)
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Sweden
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17.7
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24.7
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18 weeks
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Denmark
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18.4
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28.6
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12 weeks
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France
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14.9
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18.9
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10 weeks
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Singapore
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28.1
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32.0
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24 weeks
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Source of time limits: Abortion - A Survey of Laws: ‘Legal Executive’, November 1978
Source for rates; ‘`international Family Planning Perspectives’, vol 13, No. 1, March 1987
Different circumstances, of course, and different conditions operate in different countries. There may be some quite ready explanation (or explanations) for why France and Sweden with their much lower time limits have higher rates of abortion than we do. But is there not some burden on advocates of lower time limits to tell us what those explanations are? At the very least, is it not time for a little caution in presenting the sort of 'one to one' correlation between time limits and abortion rates that has accompanied publicity for this Bill?
There are in fact serious grounds for doubting whether even a simple reduction of the so-called upper time limit to 18 weeks (without exceptions) would save the 8,000 lives now annually taken after that time. Some women, who for one reason or another now delay, would simply have earlier abortions; certainly very many doctors would counsel earlier abortions. More worrying still, some women who would have delayed, and then, on an assurance that the baby was 'perfect', have gone to term, might have earlier abortions for fear of imperfection. How many such women would there be? More than, or fewer than, 8,000 a year? We have not the slightest idea, and neither has anyone else, supporting or opposing the Bill.
The exceptions are in five categories:-
1. to save the life of the woman;
2. a likelihood that the child will be born dead;
3. a likelihood that the child will be born with physical abnormalities so serious that its life cannot be independently sustained;
4. immediate necessity to save the woman's life;
5. immediate necessity to prevent grave permanent injury to her physical health.
It is impossible to gauge how many cases will be caught on these exceptions. The first three, be it noted, are dependent upon our old friend "the opinion of two registered medical practitioners formed in good faith". Twenty years of experience have taught us how elastic that opinion can be. Successful prosecution of such a practitioner involves proof, not that he is wrong, even hopelessly wrong, about the 'necessity' or the 'likelihood', but that his opinion has not been formed in good faith. In all but the most extraordinary cases the prosecution is a non-runner. For comparison purposes, after twenty years and three million abortions, absence of good faith has been proved just once in our courts: in R. v. Smith (John) [1974] l All E.R. 376 C.A.
The physically abnormal category is said to comprise anencephaly or similarly extreme cases. But the language of the clause is alarmingly wide, and experience does not inspire confidence that the courts would interpret it restrictively. When it comes down to it, what will 'likelihood' and what will 'life independently sustained' be taken to mean? Does not this sub-clause, notwithstanding the preservation of the Infant Life (Preservation) Act 1929 in another sub-clause, in effect seriously erode the protection now provided by the 1929 Act, which makes it a serious criminal offence to cause the death of any child capable of being born alive, save for the purpose only of preserving the life of the mother? No matter how physically abnormal the child in the womb may be, or may be thought to be, it is protected by the 1929 Act, provided it is capable of being born alive. And if, following C. v. S [1987] 2 W.L.R. 1108, that capability is now to be equated with the capacity to breathe, to the exclusion of any other signs of life, the 1929 Act will still protect the child from about the 23rd or 24th-week of gestation. But if the Bill in its present form is passed, that child's protection will apparently be contingent upon the opinions of medical practitioners, not about its capability of being born alive, but about its likelihood of being physically abnormal, and being unable after birth independently to sustain life.
Mr. David Alton has proved his courage and goodwill. He has many thoughtful supporters, who believe, as we do, that any reform of the law however limited, is worthwhile, provided it has the net effect of saving lives (Here, however, another problem looms, beyond the scope of this short comment: is it permissible, in legislating, to trade off one set of lives for another, in order to achieve a 'better' net effect?) Among his supporters are many members of this Association. One of our functions as lawyers is to ask questions in the interests of our client. We would be interested to hear some answers.
