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Medical Law - Abortion
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Comprehensive notes compiling lecture notes, textbook reading, case law summaries and further reading. Includes legal and ethical evaluation and critique.
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REPRODUCTIVE CHOICE: ABORTIONThe effect of the current legal framework is that abortion, or procuring a miscarriage, is a crime in English law.
The 1967 Abortion Act permits abortion by providing a defence to the criminal law when termination of
pregnancy is carried out on the terms stipulated by the Act.
If two doctors agree that the pregnancy is putting woman’s health or the health of her existing children at risk,
she is legally permitted to terminate a pregnancy up to 24 weeks. After 24 weeks. A pregnancy can be
terminated if;
o The woman’s life is at risk;
o The woman’s health is at risk of grave permanent injury; or
o There is risk of serious abnormalities for the foetus.
The 1967 Act did not extend to Northern Ireland, but human rights litigation in the jurisdiction has led to recent
radical reforms which have decriminalised abortion in the jurisdiction.
Abortion Statistics for England and Wales: 2018
Department of Health and Social Care [2013]
Total abortions have increased by 14% since 2017 for residents of England & Wales.
17.4 of 1,000 women had an abortion.
Almost all abortions in England & Wales were funded by the NHS, with most of them taking place in the
independent sector. British Pregnancy Advisory Service (BPAS) being the main provider of abortions.
9 out of 10 abortions were carried out under 13 weeks.
2% of the abortions were due to the risk that the child would be severely handicapped.
71% of abortions were medically induced.
0.6% of the abortions were to girls under 16 (declined over the last ten years).
81% of abortions were carried out on single women.
97.7% of the abortions were performed under Ground C (consistent with the last 10 years).
1,053 abortions for women from Northern Ireland.
Causation, Responsibility and Foetal Personhood
Cox (2000)
‘The abortion debate is bitter and couched in absolute terms because the absolute moral conviction of one
person is diametrically opposed to the absolute moral conviction of another, neither point of view can be proven
and insecurity of argument breeds an unlistening vehemence. This is why any abortion law can only hope to be
consistent, practicable and reflective of the moral ethos of the society which it governs, but can never hope to be
right’.
The moral dimension of this area perhaps explains the difficulty in legislating abortion.
LEGAL FRAMEWORK
This is an area of law dominated by statute and Parliamentary action. Historically at common law it was an
offence to abort a pregnancy after quickening (the point at which the woman felt the foetus move or quicken in
her womb, usually 16-18 weeks). The current legislative framework in England & Wales is spread over multiple
Acts.
Offences Against The Person Act 1861
s.58 – Every woman being with child who with intent to procure her own miscarriage, shall unlawfully
administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other
means whatsoever with the like intent…whosoever, with intent to procure the miscarriage of any woman
, whether she be or be not with child…shall be guilty of an offence, and being convicted thereof shall be
liable…to imprisonment for life…
s.59 – Whosoever shall unlawfully supply or procure any poison or other noxious thing or any instrument or
thing whatsoever, knowing that the same is intended to be unlawfully used, or employed with intent to procure
the miscarriage of any woman, whether she be or be not with child, shall be guilty of an offence, and being
convicted thereof shall be liable…to imprisonment…for any term not exceeding five years…
It is important to note that ss.58-59 refer to poison or instruments being used unlawfully. The word unlawfully is
prima facie redundant here as the purpose of these sections is to create a criminal offence, so obviously the act
described is unlawful. A more plausible explanation is that the offence is only committed where the abortion is
carried out unlawfully, implying that it is possible to procure an abortion legally. Different judges have interpreted
these sections in different ways
R v Bourne [1939]
A distinguished obstetric surgeon had carried out an abortion on a 14-year-old girl, who was pregnant following a
violent rape. This was a clear breach of the OAPA 1861. He asserted that in his medical opinion, the
continuance of the pregnancy posed a serious risk to the girl’s mental health.
Macnaghten J agreed it would be possible for an abortion to be carried out lawfully where the pregnant woman
was in imminent danger and, as in this case, where the effect of carrying the pregnancy to term might ‘make the
woman a physical or mental wreck’.
‘In my opinion the word ‘unlawfully’ is not, in that section [58-59] a meaningless word’.
Comment: Macnaghten J refers to the girl’s ‘normal, decent’ upbringing and infers that had she been ‘feeble-
minded or belongs to the class described as ‘the prostitute class’ the jury may be entitled to think differently of
her having to endure the mental and physical pain of birthing the product of a ‘dreadful scene’.
This gave the medical profession leeway to justify an abortion under the OAPA 1861.
R v Whitchurch (1890)
A woman who mistakenly believed she was pregnant conspired with two men to make her miscarry. She was
charged with conspiracy to commit certain abortion offences. It was argued that since she was not pregnant, it
was impossible for her to commit the offences she conspired to commit and therefore could not be convicted of
conspiracy either.
The conviction was upheld, and it was confirmed that it is possible to conspire to commit an offence that is
impossible to commit due to facts unknown to the defendant. Other people can be guilty ‘whether she be or not
with child’, provided they believe her to be pregnant.
R v Erin [2013]
A hospital doctor had an extra marital affair with his secretary who consequently became pregnant by him. On
two separate occasions, in an attempt to procure an abortion, he tried to administer poison to her. He denied that
he had done so.
He was sentenced to 6 years’ imprisonment and application of leave was refused. Erin was also removed from
the GMC register.
Infant Life Preservation Act 1929
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