W1A-005 Abortion law-0.txt
Introduction

Anthropologist, George Devereux has stated that "...abortion is an absolutely universal phenomenon." It is a phenomenon which has sparked off one of the most contentious and durable debates in the history of law and ethics, because of the inherent gravity of the issues involved and the depth of feeling which it evokes. Attitudes to abortion are shaped, to a large extent, by the general "cultural climate" within which they are made - often reactions to the questions raised by the issue arise from peoples'unconscious axioms and collective feelings, rather than from any entirely rational or conscious deliberation on the subject. Virtually every legal system in virtually every time has criminalized abortion in some very limited circumstances and allowed it in other circumstances. There is no absolutist legal system and no legal system with no regulation. Basically the means employed to deal with abortion depends on how the question is actually defined: is it a moral, social or political issue, and this is intrinsically linked with the society's conception of the individual and the world. Petersen suggests that it is possible to construct a typology which recognises three distinct models of abortion laws, all dealing with regulation in different ways: 1. The Abortion Reform model 2. The Judicial model, and 3. The Elective model.

These models provide a useful means of comparative analysis and so, it is proposed in this paper to examine the abortion laws of three countries: England, Northern Ireland and Denmark, each of which corresponds to one. The three models will be outlined, followed by a description of the laws in the three countries. An analysis will ensue in which a comparative approach will be adopted, in order to assess the transferability of the law of abortion. Finally, some general conclusions will be drawn about the methods of regulation employed in the three jurisdictions examined, and what lessons can be learnt from the different experiences.

The Abortion Reform Model

In countries where abortion law corresponds to this model, original criminal statutes have been altered by legislatures to provide for lawful abortion when a medical practitioner honestly believes that justifiable grounds exist. This model preserves the essential right of medical practitioners to autonomy, however various conditions place some restriction on the clinical freedom of medical practitioners. As we shall see, the law in England is an example of the abortion reform mode.

Abortion was largely dealt with by the ecclesiastical courts until the beginning of the nineteenth century when abortion after quickening became regarded as a common law offence. In 1803 all abortion was criminalized with punishment for postquickening abortion being set at death. However, both the concept of quickening and punishment with death was eliminated from the abortion equation in 1838. The basis for these early laws is not clear.

The 1861 Offences Against the Persons Act is taken by most writers as the staring point for the understanding of the modern law regarding abortion. Section 58 made it a statutory offence to procure a miscarriage by administering drugs or using instruments. Section 59 made it an offence to supply or procure any poison or other noxious thing or any instrument or thing, knowing it is intended to be unlawfully used with intent to procure a miscarriage. The legislation which made a woman or a doctor potentially liable to life imprisonment for performing an abortion even when the woman's life and health were threatened by continuing the pregnancy, resulted in many backstreet abortions and the loss of the lives of many potential mothers. In the 1920s, there were a series of cases where babies were strangled using the umbilical cords which still attached them to their mothers. Women and doctors were prosecuted for infanticide but acquitted because of a gap which existed in the law. This gap meant that it was possible to avoid criminal liability by killing a child in the course of normal birth but before it was fully born and the Infant Life (Preservation) Act 1929 was enacted to plug this. A defence was provided by the Act if the act causing the death was done in good faith for the purpose only of preserving the life of the mother. The Act also contained a time limit: evidence that a woman had been pregnant for a period of 28 weeks or more, should be prima facie proof that the child was capable of being born alive and this was later read into the OAPA.

However the availability of abortion was not as restricted in practice as it was on paper. The reason for this was the case of R v Bourne. Many doctors were unhappy with the state of the law regarding abortions and considered it too restrictive.

Eventually one doctor, Aleck Bourne, a consultant obstetrician, performed an abortion on a fourteen year old victim of a brutal multiple rape committed by two soldiers. He then invited the police to arrest him and the Attorney General decided to prosecute. In his direction to the jury, MacNaghten J. advised that a broad interpretation as to the meaning of "preserving the life of the mother" should be adopted:

Thus, explicit judicial approval was given to the exercise of medical discretion for therapeutic termination. R v Bergmann and Ferguson and R v Newton and Stungo clarified the position that, as long as the doctor acted in good faith, therapeutic abortion was legal.

However, this did not eradicate the practice of backstreet abortions. The real desire to reduce backstreet abortions, thus reducing maternal mortality, by providing a more sympathetic system for women, was the main factor influencing the reform of abortion law which occurred in 1967 under the Abortion Act. Other influencing factors were the need to protect the autonomy of the medical profession and to stamp out the fear of prosecution, which existed even despite the fact that there was very little real risk of prosecution of a qualified medical practitioner who performed abortions, as long as he or she acted in conformity with recognized medical procedure. For the medical profession, the law remained both fragile and ambiguous: fragile in that the Bourne decision was made in a lower court and so could be overruled, and ambiguous in that the criteria of "good faith" and "honest opinion" were tenuously subjective.

The Abortion Act 1967, received royal assent after a series of attempts to change the law. It was decided that the best strategy for getting the private members bill through Parliament would be to stitch new law on to existing law. Thus the Act took as its starting point, the defences to the 1861 Act and reiterated the time limit of the 1929 Act. The Act is considered to provide four grounds for legal abortion - where there is: 1. a risk to the life of the woman 2. a risk to the physical or mental health of the woman 3. a risk of injury to the physical or mental health of existing children of the woman 4. substantial risk of serious handicap

The third ground provides the most room for manoeuvre - Feldman states that "the freedom given to doctors to take account of environmental matters gave a discretion to allow something like abortion on demand". The Abortion Act has been amended by the Human Fertilization and Embryology Act 1990, section 5 of which established the Human Fertilization and Embryology authority to review information concerning embryos. The Act provides specific grounds for abortion, and these are set out in s.1 (1)(a), (b), (c), (d) and 1(4) of the act. Abortions certified under s. 1(1)(a) must be carried out by the end of the 24 week of pregnancy. There is no time limit at all for abortions based on the other grounds - anti-abortionists ironically failed to prevent the House of Commons from removing the 28-week presumption in respect of handicapped foetuses, because they were so intent on reducing the limit for abortions under s.1(1)(a).

The other sections are really only consolidations of the law as it stands - however the new section 1(d) is a significant liberalization of the law -: where there is a "substantial risk" of physical or mental abnormalities as to be "seriously handicapped", an abortion will be permissible up to the point of birth. It is unclear what exactly is meant by "substantial risk" and what is more, further problems exist regarding the abnormalities which leave a child seriously handicapped. Grubb asks if an abortion would be justified if a baby is diagnosed as HIV positive in its mother's womb, given that it will almost certainly be asymptomatic at birth. Pro-life observers allege that the reforms will allow terminations "for any reason at all, from harelip to hair colour." As Douglas notes, it is regrettable that, by directing their opposition towards women attempting to obtain early abortions, anti-abortionists ended up by facilitating the enactment of a piece of legislation which, frankly, looks eugenic.

However, it seems that although in theory abortions on the three grounds without a time limit could be performed up to the birth of the child, in practice a number of factors will minimize such cases and mean that little will change with regard to the incidence of abortion. Firstly, at present, the trend is towards earlier rather than later abortions. Most abortions are performed within the first twelve weeks of pregnancy and few are performed after eighteen weeks. Also, the certifying doctor need only form the opinion "in good faith" that the matters set out exist. The Act does not require that they objectively do - honesty seems to be sufficient to satisfy the Act. Another factor is that the decision to perform the abortion is subject to the regulatory requirements under the Act, a private one between the doctor and patient. No other individual has standing prospectively to challenge the legality of abortion under English law.
Judicial Model
This model exists where courts have held abortion lawful if the accused performs and abortion in the honest belief that it is necessary in order to preserve the woman's physical or mental health. A pragmatic approach is adopted in the interpretation of the criminal statutes. Northern Ireland abortion law, which is rarely discussed outside of NI itself, provides an example of the working of this type of model.

Abortion has been characterised as the "big guilty secret of Northern Ireland". Until 1967, the law in Northern Ireland regarding abortion was the same as that in England. However, as the legal organs of Government in England continued to develop and change the law there, the situation in Northern Ireland remained static because no such organs exist. In 1990, the British Parliament debated a series of reforms to the 1967 Abortion Act in England. One proposal was the extension of the Act to Northern Ireland, however, this was opposed by all the 16/17 Members of Parliament in the House of Commons who represent the constituencies within the province. It was also opposed by all the political parties there with the exception of Sinn Fein, which declared itself neutral on the issue. Eventually the reform was defeated by a ratio of two votes to one.

In practice, the courts in Northern Ireland have said that abortion is legal under certain circumstances, however the problem is that doctors are so fearful of the uncertainty of the law that few are willing to carry out the operation, even with judicial support. This is clearly illustrated in the case of Re K which shall now be examined.

The Northern Irish Health Board made an application to the court for its ward, K to travel outside Northern Ireland for an abortion. K was a 14 year old girl who lived with her father until his own ill-health and her unruliness meant that he was no longer able to care for her. She became subject to a Fit Person Order and, at the age of thirteen, became pregnant whilst in a children's home. She wanted to have an abortion and threatened suicide if she was forced to carry the pregnancy to term. She reinforced the threat by cutting her wrists with broken glass, refusing food and punching her stomach in order to harm the foetus. A psychiatrist testified that there was a substantial risk of suicide if the pregnancy continues and his opinion was corroborated by that of two other doctors.
