Is it time to "Abort" Abortion?

A. Introduction

Should abortion be lawful and if so what should the legal limits be? This article will assess four distinct legal systems’ responses to abortion and subsequently determine the best approach in law.

B. North America and Northern Ireland

In North America, the seminal Roe v Wade [1] ruled that women have the constitutional right to privacy and control of their own bodies, and so they can lawfully choose to have an abortion within the first trimester. It was held that only during the third trimester the state has a compelling interest to intervene and protect the life of the unborn, though not to the detriment of the life of the woman. [2] Prima facie, it can be inferred that this appears to be a balanced approach as it respects women’s rights and limits any unwarranted state intervention.

Despite this, former President Donald Trump sought to overturn Roe, speaking before the United Nations General Assembly in September 2019 he declared ‘Americans will never tire of defending innocent life’ as ‘we in America believe that every child - born and unborn - is a sacred gift from God.’ [3] Consequently, the US signed the Geneva Consensus Declaration calling on states to promote women’s rights and health, without the access to abortion. Many criticised this, especially Amnesty who called it ‘another great step backwards for reproductive rights globally’, [4] as being authoritarian as it subverts women’s constitutional rights. [5] Hence, it can be asserted that North America’s proposed approach would be overly-stringent, and that a compromise must be sought which will not only balance the woman’s right to privacy and control of their own bodies but also the unborn’s right to life and physical integrity.

This auspicious approach can be glimpsed from Northern Ireland’s previous position on abortion. Northern Ireland had upheld the unborn’s rights through s 25(1) of the Criminal Justice Act (Northern Ireland) 1945 which only permitted abortion if a woman’s life was at risk or there was a permanent or serious risk to her mental or physical health. Since this did not include abortions to deal with fatal foetal abnormalities, rape and incest, [6] a recent law was passed allowing terminations to be carried out in all circumstances within the first 12 weeks of a pregnancy. [7] It can be avowed that if Northern Ireland had have extended abortions to cover cases of fatal foetal abnormalities, rape and incest, it would have been a more balanced approach to abortion as it would not only have safeguarded women’s rights but also the unborn’s rights. Nonetheless, Northern Ireland have now adopted a more pro-abortion stance compared with that of the UK’s and Europe’s, since the law allows abortions to be carried out for any reason whatsoever. [8]

C. UK and Europe

In the UK, the unborn may not be terminated as to do so is the crime of abortion. [9] However, there is a defence to the crime if the act was carried out in accordance with the terms of the Abortion Act 1967 (hereafter “the 1967 Act”), as amended by s 37 of the Human Fertilisation and Embryology Act 1990 (hereafter “the 1990 Act”). The UK’s abortion law tends to avoid the unborn/ maternal rights debate [10] by treating the whole issue as a morally neutral one which is primarily a matter for the medical profession, so long as they act in good faith. S 1(1) of the 1967 Act specifies abortions may be carried out without breaching the criminal law if the termination is carried out by a medically registered practitioner and that two registered medical practitioners have formed the opinion in good faith that: 

(a) the continuance of the pregnancy would involve risk, greater than if the pregnancy was terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family, [11] (b) the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman, (c) the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated, (d) there is substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped. 

If the abortion is carried in accordance with these provisions then the child has no ‘right’ to remain in the womb as illustrated by Paton v BPAS Trustees [12] and Kelly v Kelly. [13] In both cases, the father sought to defend the interests of his unborn, though the court ruled in favour of the mother’s request for abortion. Nonetheless, C v S [14] showed that under s 1(2) of the Infant Life Preservation Act 1929 (hereafter “the 1929 Act”) if the unborn is over 28 weeks old and capable of being born alive then the act of abortion will be illegal. [15] Thus, it can be asservated that this suggests that the unborn does possess some de facto right in the womb. Regardless, it can be contended that by treating abortion as a matter for the medical profession to decide upon allows there to be a compromise between the rights of women and unborn. Because of this, it can be purported that the most balanced approach analysed so far lies within the UK’s 1967 Act as it evidently provides the mother with rights but also seems to recognise that the unborn has legally protected interests.

Likewise, in Europe, Vo v France [16] and ABC v Ireland [17] maintained that the unborn requires protection to human dignity, albeit the law cannot make it an actual person and have the right to life for the purposes of Art 2 of the ECHR. Nevertheless, Ireland has had a history of defending the unborn [18] as acknowledged by their now repealed Article 40.3.3 of the Constitution which stated that the unborn had equal rights to the mother and so abortion is unlawful. [19] For example, in PP v HSE, [20] the High Court ruled it was in the best interests of the unborn to be born alive while the mother was deemed to be clinically dead, implying that the unborn’s life was treated as having a higher value than the mother’s. [21] Moreover, in Att General v X, [22] the court indicated abortions should only be permitted where the mother will die without it. [23] From this, it can be averred that the approach to abortion in Europe, especially Ireland’s prior stance also allowed there to be a compromise between the women’s and unborn’s rights like that of the UK’s. Hence, it can be testified that the UK’s and Europe’s stance to abortion of affirming that the unborn does possess legally protected interests, must be encouraged, albeit with slight amendments.

D. Conclusion

Ultimately, it can be concluded that as North America’s proposed approach would severely contravene women’s rights to private autonomy while Northern Ireland’s recent reform will seriously undermine the unborn’s right to life and physical integrity, the most favourable approach must be found elsewhere to strike a compromise between the two. While not explicitly confirming that the unborn has a right to live under Art 2 of the ECHR, both the UK and Europe have recognised legal consequences can and do arise from the unborn. Therefore, these legal systems are more favourable towards both the woman and unborn than either North America or Northern Ireland and so it can be professed that the “ideal” approach should follow suit. However, since the 1967 Act legalises abortion after the normal 24-week limit if the foetal defect of Down Syndrome is detected in the unborn, [24] it can be opined that abortion should not be lawful in cases of non-fatal foetal abnormalities. Mainly because, in Re B (a minor) [25] the Court of Appeal overrode the parents’ views and ruled that children with Down’s Syndrome have the prospect of a reasonably ‘happy life’ and so the relevant medical treatment should not be refused. Considering this, your commentator is of the view that the most balanced approach would not go as far as Julia Przy??bska’s decision in Poland, [26] which prevents all abortions in regard to foetal abnormalities but rather assesses what the unborn’s best interests are. In other words, it can be proposed that abortion should only be allowed where it is in the best interests of the unborn child. This submission becomes conclusive when viewed alongside the fundamental Gard [27] and Evans [28] cases where the court confirmed that the welfare/ best interests of the child is the paramount consideration and the courts were the best arbitrators to assess this, having regard to medical evidence. Although these concerned children who had already been born, it is your commentator’s belief that this should be extended to children in utero because as Re J (A Minor) (Wardship: Medical Treatment) [29] affirmed the presumption is always in favour of the sanctity of life. [30] In summation, our analysis demonstrates that no legal system has perfected an approach that will balance the women’s and unborn’s rights though perhaps this decade will be the one in which this is accomplished.

1. 93 S Ct 705 (1973) (US).
2. For a further analysis of the contention see Johanna Schoen, Abortion after Roe: Abortion after Legalization (University of North Carolina Press 2015); see also Simone M. Caron, Who Chooses?: American Reproductive History since 1830 (Florida Scholarship Online 2011).
3. As a matter of morality and preserving the sanctity of life, Isaiah 44:2 tells us that God formed man in the womb and since Genesis 1:27 reminds us that as God created man in his own image, each life is of great value to Him. Interestingly, Exodus 21:22, 23 shows that if the unborn child lost his life, then the one who caused his death must also lose his life. See also Jeremiah 7:6 and Amos 1:13.
4. Amnesty International, ‘The anti-abortion Geneva Consensus Declaration’ (Twitter, 23 October 2020) <https://twitter.com/amnesty/status/1319591902669344768?s=20> accessed 29/10/20. Nonetheless, Dr Daniel Frampton, of the Society for the Protection of Unborn Children condemned Amnesty for hypocrisy as it refuses to recognise the humanity and human rights of the unborn, though advocates for humanity and human rights.
5. Julian Borger, ‘US signs anti-abortion declaration with group of largely authoritarian governments’ The Guardian (Washington, 22 October 2020); see also Tom Embury-Dennis, ‘US, Saudi Arabia and Uganda join forces to declare women have no intrinsic right to abortion’ The Independent (London, 23 October 2020).
6. In 2015, Mr Justice Horner held that this breaches Art 8 of the ECHR. In 2018, the Supreme Court concurred.
7. BBC News, ‘Abortion: New laws come into force in Northern Ireland’ (BBC News, 31 March 2020) <https://www.bbc.co.uk/news/uk-northern-ireland-politics-52068193> accessed 27/10/20.
8. Emma Gallen, ‘Abortion is now legal in Northern Ireland - but why aren’t procedures actually being carried out?’ The Telegraph (London, 24 June 2020).
9. Sections 58 and 59 of the Offences against the Persons Act 1861, cf in Scotland, abortion was a common law matter prior 1967 see K. Norrie, Family Planning Practice and the Law (Dartmouth: Medico-Legal Series, 1991) 30; see also Patrick Robertson and Marion Kempt (1627) Hume, I, 186.
10. For a further examination see Kate Greasley, Arguments about Abortion: Personhood, Morality, and Law (Oxford Scholarship Online 2017).
11. S 37(4) of the 1990 Act details that an abortion carried out under this ground must be performed before the pregnancy exceeds its 24th week.
12. [1979] 1 QB 276.
13. 1997 SLT 896.
14. [1987] 1 All ER 1230.
15. Scotland applies the nasciturus exception from Stair III, v, 50. This provides that, so long as that child is subsequently born alive, an unborn child can be regarded as being capable of having rights at a prenatal time, where that would be to his or her advantage. An example of this is Elliot v Joicey 1935 SC (HL) 57 where the child in utero was deemed to have been born and become a legal person by the date of the father’s death to enable him to have a share in the deceased’s estate.
16. (2004) 79 BMLR 71.
17. (2011) 53 EHRR 13.
18. See McGee v Attorney General [1974] IR 284, 312; see also G v An Bord Uchtála [1980] IR 32, 69; Norris v Attorney General [1984] IR 36, 103.
19. Following M v Minister for Justice and Equality [2018] IESC 14, The Health (Regulation of Termination of Pregnancy) Act 2018 was created, allowing the Oireachtas to pass laws regulating the termination of pregnancy only in cases similar to the grounds of the 1967 Act.
20. [2014] IEHC 622.
21. cf Paton v UK (1981) 3 EHRR 408 showed that there would be no breach of Art 2 of ECHR since ‘the unborn has a lower value than the mother.’
22. (1992) 15 BMLR 104.
23. This decision was subsequently enshrined in the Protection of Life During Pregnancy Act 2013.
24. BBC News, ‘Down’s syndrome: Campaigners say abortions “need 24-week limit”’ (BBC News, 24 February 2020) <https://www.bbc.co.uk/news/uk-51612884> accessed 29/10/20.
25. [1981] 1 WLR 1421, CA. See also Heidi Crowter’s campaign with the Down Syndrome Association.
26. See Karolina Wigura and Jaros?aw Kuisz, ‘Poland’s abortion ban is a cynical attempt to exploit religion by a failing leader’ The Guardian (Poland, 28 October 2020).
27. Great Ormond Street Hospital v Yates and others [2017] EWHC 972 (Fam).
28. Alder Hey Children’s NHS Foundation Trust Hospital v Evans and Ors [2018] EWHC 308 (Fam).
29. [1990] 3 All ER 930.
30. There has been no definitive legal consensus on when life in the womb begins, namely whether it begins at conception or indication (upon the point that the unborn becomes viable for live birth). Interestingly, Vo highlighted that the notion of viability cannot limit the states' positive obligation to protect the unborn against interference and negligence.