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Sheldon, Sally (2015)
Publisher: Oxford University Press
Languages: English
Types: Article
Subjects: K

Classified by OpenAIRE into

mesheuropmc: health care economics and organizations, humanities
While abortion is now offered as a routine part of modern NHS-funded reproductive healthcare, the legal framework regulating it remains rooted in the punitive, conservative values of the mid-Victorian era. This article argues that this framework is in need of fundamental reform to modernise it in line with the clinical science and moral values of the 21st century. It assesses the current statutory framework regulating abortion against the purposes that are typically claimed to motivate it: the protection of women; and the prevention and condemnation of the intentional destruction of fetal life. It argues that it fails to achieve either of these broad aims and that we should thus remove specific criminal penalties relating to abortion. This, it is suggested, would be likely to have very limited impact on the incidence of abortion but would, however, better recognise contemporary medical realities and moral thinking.
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    • 2 Some women gained the vote via the Representation of the People Act 1918, with full female franchise achieved in the Equal Franchise Act 1928. The Married Women's Property Act 1882 changed the law to permit married women to own, buy and sell property in their own right.
    • 3 Smeaton (n 1) [332] Munby J.
    • 4 The Commissions Act 1965, s 3, sets out the Law Commission's duty with regard to 'the elimination of anomalies, the repeal of obsolete and unnecessary enactments, the reduction of the number of separate enactments and generally the simplification and modernisation of the law'. In its own words, the Commission is charged to ensure that the law is fair, modern, simple and effective, see Law Commission, (accessed 11 August 2015).
    • 5 Law Commission, Reform of Offences Against the Person: A Scoping Consultation Paper (Law Com, CP No 217, 2014) 54. The draft Bill referenced here was published as part of an earlier Consultation exercise, entitled Violence: Reforming the Offences against the Person Act 1861.
    • 6 For a very small taste of the voluminous literature, see J Finnis and others, The Rights and Wrongs of Abortion (Philosophy & Public Affairs Readers 1974); R Dworkin, Life's Dominion: An Argument about Abortion and Euthanasia (HarperCollins 1993); RP Petchesky, Abortion and Woman's Choice: The State, Sexuality, and Reproductive Freedom (Longman 1984); and J Harris, The Value Of Life (Routledge 1985).
    • 7 R Siegel, 'Sex Equality Arguments for Reproductive Rights: Their Critical Basis and Evolving Constitutional Expression' (2006-07) 56 Emory LJ 815.
    • 13 The applicability of such offences in the context of abortion is briefly explored in section 3.
    • 14 R Cook, 'Stigmatized Meanings of Criminal Abortion Law' in R Cook, JN Erdman and BM Dickens (eds), Abortion Law in Transnational Perspective: Cases and Controversies (University of Pennsylvania Press 2014).
    • 15 The head of Britain's largest charitable abortion service provider, the British Pregnancy Advisory Service (bpas), reports that '[m]inisters and officials at the Department of Health have repeatedly said to us that they see no need to change the law because it is possible to ''work around'' its deficiencies. This is not good enough. The law as it stands undermines the delivery of safe, evidence-based abortion services.' A Furedi, 'A Shocking Betrayal of Women's Rights' (Spiked, 28 October 2008) (accessed 11 August 2015).
    • 16 The statutory framework for abortion is contained within the first four pages of the chronologically ordered 270 pages of Blackstone's Statutes on Medical Law (5th edn, OUP 2007), which begins with the OAPA 1861.
    • 23 Smeaton (n 1) [126]-[127].
    • 24 See S Sheldon, 'The Regulatory Cliff Edge Between Contraception and Abortion: The Legal and Moral Significance of Implantation' (2015) J Med Ethics (accessed 11 August 2015); EG Raymond and others, 'Embracing Post-Fertilisation Methods of Family Planning: A Call to Action' (2013) 39 J Fam Plann Reprod Health Care 244; V Tunkel, 'Ab2o5rtSioeen:IrHeloawndE'saPrlryo,tHecotiwonLoafteL, iafendDuHroinwg LPeregganl?a'n(c1y97A9c)t 62108143.BFMorJa2c5o3m.parative analysis of European laws, see K Nebel and S Hurka, 'Abortion: Finding the Impossible Compromise' in C Knill, C Adam and S Hurka (eds), On the Road to Permissiveness? Change and Convergence of Moral Regulation in Europe (OUP 2015).
    • 26 See A Loughnan, Manifest Madness: Mental Incapacity in the Criminal Law (OUP 2012) ch 8, locating this provision within broader concerns for women's sexual 'immorality', illegitimacy and poverty. Scotland's equivalent measure, contained in the Concealment of Birth (Scotland) Act 1809, is framed more narrowly, providing only for cases where infanticide (rather than procurement of miscarriage) is suspected, see GH Gordon, The Criminal Law of Scotland (W Green & Son 1967) 113.
    • 27 G Williams, The Sanctity of Life and the Criminal Law (Faber and Faber 1958) 24.
    • 28 Births and Deaths Registration Act 1953, ss 2 and 3(1) respectively.
    • 29 See generally, I Jones and M Quigley, 'Preventing Lawful and Decent Burial: The Boundaries of the Criminal Law?' forthcoming, Legal Studies.
    • 30 Office for National Statistics (ONS), Crime in England and Wales, Year Ending June 2014, table A4 (16 October 2014) (accessed 11 August 2015).
    • 31 eg R v Magira [2008] EWCA Crim 1939, [2009] 1 Cr App R (S) 68; R v Erin (2009, unreported). Few such cases are legally reported and I rely here on media reports to support the claim that prosecutions appear typically to involve non-consensual abortions, eg, BBC News, 'Man Jailed for Miscarriage Attack' (22 January 2003) ; J Newton and T Thornhill, 'Man is Jailed for Six Years for Putting Abortion Pills into his Ex-Girlfriend's Smoothie' Daily News (18 March 2015) (both accessed 11 August 2015).
    • 32 R v Catt [2013] EWCA Crim 1187, [2014] 1 Cr App R (S) 35; and R v Mohamed (unreported), see N Britten, 'Jury Convicts Mother who Destroyed Foetus' Telegraph (26 May 2007) (accessed 11 August 2015).
    • 33 Since the Abortion Act (1967) was passed, there appears to have been just one such conviction: R v Smith [1974] 58 Cr App R 106 (CA). In Erin (n 31), a doctor who had attempted to procure the abortion of his pregnant lover by slipping abortifacients into her drink acted outside his medical role.
    • 34 R v Hopkins [2005] NICC 1 Crown Court (21 January 2005). See further, eg, 'Grandmother Admits Concealing Births of FOUR Stillborn Babies' Daily Mail (7 December 2010) ; 'Mother Dumped Baby in Lake' Independent (15 October 1992); ; 'Cheating Girlfriend Hid Body of Newborn Baby' Telegraph (14 July 2008) (all accessed 11 August 2015).
    • 35 In Northern Ireland, similar provision is made by s 25 of the Criminal Justice Act (NI) 1945. In Scotland, such provision is unnecessary because the High Court of Justiciary has inherent power to extend the scope of existing crimes to cover unusual situations and, possibly, to create new crimes: K McKnorrie, 'Abortion in Great Britain: One Act, Two Laws' [1985] Crim LR 475.
    • 36 ILPA 1929, s 1(1).
    • 37 See Lord Russell, HL Deb 6 December 1928, vol 72 col 444, confirming that the offence was not concerned with abortion.
    • 38 ILPA 1929, s 1(2).
    • 39 N Marlow and others, 'Neurological and Developmental Disability at Six Years of Age after Extremely Preterm Birth' (2005) 352(1) NE J Med 9.
    • 40 See ONS (n 30) data tables. Again, while the cases are not legally reported, some facts can be gleaned from media accounts, eg, J Narain, 'Teenage Rapper is Charged with Child Destruction' Daily Mail (17 August 2014) (accessed 11 August 2015).
    • 41 The Law Commission cites s 20 (maliciously wounding or inflicting grievous bodily harm), which is seen as more serious than s 47 (assault occasioning actual bodily harm) but carries the same maximum penalty, Law Commission, Eleventh Programme of Law Reform (Law Com No 330, 2011) para 2.62.
    • 42 Under Bourne (n 22) 619.
    • 43 Department of Health, Social Services and Public Safety (DHSSPSNI), 'The Limited Circumstances for Lawful Termination of Pregnancy in Northern Ireland' (April 2013). For criticism, see G Horgan, 'A Holy Alliance? Obstacles to Abortion Rights in Ireland North and South' in C Conlon, A Quilty and S Kennedy (eds), The Abortion Papers Ireland Vol II (Cork University Press, 2015 forthcoming).
    • 44 Between 2006 and 2014 there were 23-57 abortions per year in HSC hospitals in Northern Ireland: K McClelland and C Kennedy, 'Northern Ireland Termination of Pregnancy Statistics, 2013/14' (DHSSPSNI
    • 46 Horgan (n 43).
    • 47 73 per cent of NI women are treated at under ten weeks (compared to 80 per cent of resident English and Welsh women) and 87 per cent at under 13 weeks (compared to 92 per cent of English and Welsh women), Department of Health, 'Abortion Statistics, England and Wales: 2014' (June 2015).
    • 48 A successful application for judicial review of the law has been brought by the NI Human Rights Commission, with the judgment still pending at the time of writing, H Macdonald, 'Northern Ireland High Court Grants Judicial Review of Abortion Law' Guardian (2 February 2015) pe(uacticcesesxecdep1t1ionAutoguastco2m01m5)o.n law
    • 51 In 2014, 98 per cent of abortions for English and Welsh resident women were carried out on the basis of this section alone. See Department of Health, 'Abortion Statistics' (n 47).
    • 52 From 2006-08, there was an overall maternal mortality rate of 11.39 per 100,000 maternities in the UK and a maternal mortality rate relating to abortion of 0.32 per 100,000 maternities: Centre for Maternal and Child Enquiries (CMACE), 'Saving Mothers' Lives. Reviewing Maternal Deaths to Make Motherhood Safer: 2006-2008' (2011) 118 BJOG (Suppl 1:1) 203.
    • 53 Keown (n 21); S Sheldon, Beyond Control: Medical Power and Abortion Law (Pluto 1997).
    • 54 Except in an emergency, under s 1(3), any treatment for the termination of pregnancy may only be performed in NHS hospitals or places approved by the Government.
    • 55 AA 1967, s 2.
    • 56 See Keown (n 21) ch 6, for a good account of attempted reform between 1967 and 1979; and bpas, 'Abortion: Trusting Women to Decide and Doctors to Practise' (bpas 2015) ch 4, for a brief overview of all major reform efforts from 1967 to 2015.
    • 57 A new s 3A provided a specific power to approve a 'class of places' for the performance of medical abortions; s 5(2) clarified that both the AA and OAPA are engaged in the context of selective reduction of a multiple pregnancy; s 5(1) extended the AA to offer protection from prosecution under the ILPA. In addition to the various other drafting problems with the AA discussed below, it is noteworthy that this section is worded so as apparently to offer protection only to the doctor and not to other healthcare professionals involved in the termination: I Kennedy and A Grubb, Medical Law (Butterworths 2000) 1429.
    • 58 184,571 for women resident in England and Wales and 11,475 for women resident in Scotland, see Department of Health, 'Abortion Statistics' (n 47), and Information Services Division (ISD) Scotland, 'Termination of Pregnancy Statistics. Year Ending 31 December 2014' (May 2015). It is, of course, impossible to
    • 72 Department of Health, 'Abortion Statistics' (n 47), and ISD Scotland (n 58). In 2014, for the first time, medical abortions accounted for over half (51 per cent) of the total number of abortions performed in England and Wales, Department of Health ibid. The term 'medical abortion' is used to refer to any termination of pregnancy that is provoked using drugs.
    • 73 eg where misoprostol is used in the treatment of miscarriage, see Science and Technology Committee, Scientific Developments Relating to the Abortion Act 1967 (2006-07, HC 1045-1) vol 1, 105.
    • 74 For a small taste of the literature on the safety of EMA provided by mid-level providers, see M Kishen and Y Stedman, 'The Role of Advanced Nurse Practitioners in the Availability of Abortion Services' (2010) 24 Best Practice & Research Clinical Obstetrics and Gynaecology 569.
    • 75 Science and Technology Committee (n 73) 105.
    • 76 Nurses routinely fit contraceptive coils, a procedure seen as requiring about the same level of skill as an early surgical abortion performed by vacuum aspiration, ibid; see further V Argent and L Pavey 'Can Nurses Legally Perform Surgical Induced Abortion?' (2007) 33(2) J Fam Plann Reprod Health Care 79. The World Health Organisation recommends that vacuum aspiration can be safely provided by associate clinicians, midwives, and nurses. See WHO (2015) Health Worker Roles in Providing Safe Abortion Care and PostAbortion Contraception, http://www.who.int/reproductivehealth/publications/unsafe_abortion/abortion-task-shifting/en/ (accessed 7 September 2015) describing how, in many parts of the world, vacuum aspirations are already offered by midlevel providers, with similar safety records to those enjoyed by doctors.
    • 77 See Science and Technology Committee (n 73) ch 4 for consideration of the evidence on this point.
    • 78 See Scott (n 71). The Committee on the Elimination of Discrimination Against Women (CEDAW) has repeatedly expressed concerns about access to abortion in Northern Ireland: CEDAW, 'Report of the Committee
    • 90 Sedgh and others (n 59).
    • 91 AOMRC (n 88).
    • 92 Rebecca Gomperts, cited in H Rumbelow, 'The Woman who Offers Abortions on the High Seas' The Times, 2 Supplement (22 October 2014).
    • 93 Department of Health, 'Review of the Regulation of Cosmetic Interventions' (April 2013).
    • 94 Abortion (Sex Selection) Bill (2014-15), HC Deb 4 November 2014, vol 587, cols 677-79. This Bill was withdrawn before its second reading, with a similarly worded proposed amendment to the Serious Crime Bill (2014-15) subsequently defeated. See HC, Notices of Amendments 1479: www.publications.parliament.uk/pa/ bills/cbill/2014-2015/0116/amend/pbc1162201a.1479-1480.html (accessed 11 August 2015).
    • 95 ibid 678.
    • 96 ibid.
    • 97 As illustrated in R v Ahmed [2010] EWCA Crim 1949, [2011] QB 512.
    • 98 Bruce (n 94) 677-78.
    • 101 See M Horga, C Gerdts and M Potts, 'The Remarkable Story of Romanian Women's Struggle to Manage their Fertility' (2013) 39 J Fam Plann Reprod Health Care 2, describing the peaking of maternal mortality at 147 per 100,000 in 1989. To compare with the UK maternal mortality rate noted above, see CMACE (n 52).
    • 102 Abortion rates tend to be lower in sub-regions with liberal abortion laws: the lowest sub-regional rates of abortion (12 per 1000 women) are in Western Europe, where laws are least restrictive, and some of the highest sub-regional rates (29-39 per 1000) are in Latin America, where laws are generally very restrictive: Sedgh and others (n 59).
    • 103 ibid. See further, CF Westoff, A New Approach to Estimating Abortion Rates (DHS Analytical Studies No 13, Macro International Health 2008).
    • 104 For discussion, see Sheldon (n 53) 21-24.
    • 108 See Department of Health, 'Guidance in Relation to Requirements of the Abortion Act 1967' (May 2014) para 6.
    • 109 ibid [12], [20] and [21]. For a critical reading of the 'Guidance', see D Flower, 'Certifying Abortions: The Signing of HSA1 Forms' in bpas, Britain's Abortion Law: What it Says and Why (bpas 2013) 22.
    • 110 See generally, Sheldon (n 53) 24-27.
    • 111 Department of Health, 'Guidance' (n 108) para 32 provides that '[p]atients should be able expect impartial advice from the NHS and CCGs'. See also General Medical Council (GMC), 'Personal Beliefs and Medical Practice' (March 2013).
    • 112 See the polling data discussed at nn 113-16 and accompanying text.
    • 133 J Wainer, 'Celebrate Sisters, The Battle is Won' New Matilda (25 November 2008), https://newmatilda. com13/240A08s/1is1/c2le5a/creflreobmrate-sisters-battle-won (accessed 11 August 2015).
    • Woodside's important study, the extent to which this generalisation offers an accurate description of early illegal abortion providers is open to debate, see M Woodside, 'Attitudes of Women Abortionists' (1963) 11(2) Howard J Penology and Crime Prevention 93.
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