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Medical Law – Abortion
Abortion Statistics 2017 (statutory duty to report)
192,900 abortions (resident women)
98% of abortions were NHS-funded (70% in independent sector under NHS contract)
o Specialist abortion clinic: carry out abortion, paid for by the NHS.
90% of abortions were carried out at under 13 weeks’ gestation (77% under 10 weeks).
66% of abortions were medical (i.e. non-surgical)
o Through pills
4,633 abortions were carried out on non-residents (From Northern Ireland)
The ethics of abortion:
Moral status of the foetus: (personhood or potential personhood means it should not be
destroyed).
Restricting abortion is an interference with women’s reproductive and bodily autonomy:
o Extraordinary level of self-sacrifice.
3rd way → Allow abortion within restrictions designed to indicate the seriousness of
foetal destruction.
o Similar to embryo ethics. Third way compromise to show respect for foetus.
Moral status of the foetus
John Finnis – a life from the moment of conception due to cells and chromosomes
Marry Ann Warren – While the fetus is not yet a person and so its interests cannot take
priority over the rights of an actual person, namely the pregnant woman. Rights of any
actual person invariably outweighs those of any potential person.
o To be a person there should be: Consciousness, reasoning, self-motivated activity,
the capacity to communicate and the presence of self-concepts, and self-awareness.
A fetus cannot be said to have full moral rights.
o Phillis Abbot – this test for personhood would exclude not only fetuses, but also
some seriously disabled children and adults.
Raanan Gillon – it is not evident that a newborn baby is a morally different entity to a fetus
immediately prior to birth.
o What morally relevant changes can there have been in the fetus in its passage from
inside to outside its mother’s body to underpin such a momentous change in its
intrinsic moral status?
Don Marquis – What makes killing adult human beings wrong is that it deprives them of
everything they might value in the future, the same for a fetus.
o Using contraception or even deciding not to have sex deprives potential person of a
future they would value but this doesn’t necessarily make it wrong.
o Mark T Brown: Someone who needs a heart transplant but does not get one in time
has been deprived of a future of value but it does not mean they had a right to that
future, nor that they had any rights over someone else’s heart.
o To give fetuses right not to be killed would be a right to satisfy their needs at
expense of autonomy, bodily integrity and wellbeing of another person
Pregnant women’s right to self-determination
Margaret Olivia Little explains ‘To be pregnant is to be inhabited’
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Emphasizes the physical invasiveness of carrying a pregnancy to term
The state does not have the right to force the women to continue in this relationship of
unparalleled intimacy without her consent.
Judith Thomson – Even if the fetus is a person, pregnant women might have the right to
defend themselves from the physical invasion of an unwanted pregnancy.
Raeva Siegel – Rejecting motherhood is perceived to be unnatural and selfish. Popular
support for excusing women who are victims of rape or incest from the proscriptions of
criminal abortion laws demonstrates that attitudes about abortion do indeed rest on
normative judgements about women’s sexual conduct.
o If legislators assume women are ‘child-rearers’, they will take for granted the work
women give to motherhood and ignore what it takes from them.
Rosalind Hursthouse – because motherhood is intrinsically good, a woman who rejects it
without a compelling or virtuous reason, is acting wrongly.
o Woman who opts for not being a mother by opting for abortion may thereby be
manifesting a flawed grasp of what her life should be or grossly materialistic, or
shortsighted or shallow.
o Should not avoid parenthood for worthless pursuits like having a good time or to
pursue false vision of ideals of freedom or self-realization.
Compromise position?
Ronald Dworkin argues people share a deep belief in the sanctity of human life but they
also do not believe that the fetus has exactly the same status as a person otherwise it would
be impossible to justify abortion if the pregnant woman’s life is in danger or if she is
pregnant as a result of rape. This belief is inconsistent with any belief that the fetus is a
person with a right to live.
Not just ethics
Public health issue: Consequences on public health because women terminate
pregnancies in an unsafe manner when it is not legalised.
Political issue: US politics.
Equality issue: Only women have to go through it.
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, and
whosoever, with intent to procure her miscarriage, whether she be or be not with child,
shall unlawfully administer to her or cause to be taken by her any poison or other
noxious thing, or shall unlawfully use any instrument or other means whatsoever with
the like intent, shall be guilty of felony.
s. 59 – Whosoever shall unlawfully supply or procure any poison or other noxious thing,
or any instrument of 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 a misdemeanour.
1861: The only exception was where the woman’s live is at risk, an abortion can be
carried out.
R v Bourne [1938] 3 All ER 615 (Not current law in the UK but still applies in NI)
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Respected doctor had performed a termination on a 14-year-old girl who had been
raped by several soldiers. The doctor did it openly, inviting prosecution.
o He was acquitted.
MacNaughten J: If doctor is of the opinion, on reasonable grounds and with adequate
knowledge, that the probable consequence of the continuance of the pregnancy will be
to make the woman a physical or mental wreck, the jury are entitled to take the view
that the doctor is operating for the purpose of preserving the life of the mother.
A man of the highest skill, openly, in one of our great hospitals, performs the operation.
Whether it was legal or illegal you will have to determine, but he performs the operation
as an act of charity, without fee or reward, and unquestionably believing that he was
doing the right thing, …
… You will remember that the defendant said that if he had found that this girl was
feebleminded or had what he called a "prostitute mind" he would not have performed
the operation, because in such a case the pregnancy would not have affected her mind.
But in the case of a normal, decent girl brought up in a normal, decent way you may well
think that Dr. Rees was not overstating the effect of the continuance of the pregnancy
when he said that it would be likely to make her a mental wreck, with all the disastrous
consequences that would follow from that.
Bourne: Seems progressive but facts of the case meant it was easy to fulfil the physical
and mental wreck but this is not so clear with women unhappy about their pregnancy.
So, since doctors could be prosecuted, they were not many willing to perform abortion
and risk prosecution.
Northern Ireland:
OAPA 1961 and Bourne are still the relevant law in NI
Campaigns to extend Abortion Act 1967 to Northern Ireland.
Marie Stopes opened clinic in 2012: could only do abortion
But historically one issue on which republican and unionist politicians agree…
o No appetite in politicians to change the law.
o But public opinion in wider public and parliament is that it should be revisited.
Abortion is largely unavailable in NI.
It is not uncommon for NI women who wish to terminate unwanted pregnancies to
travel to England, Scotland or Wales.
In 2013, Sarah Ewart spoke publically about her experience of terminating her
pregnancy following a diagnosis of anencephaly.
o She is taking her case to court and she has standing because the case challenges
abortion in some cases where it is disproportionate where there is rape/incest of
foetal abnormality.
In the matter of an application by the Northern Ireland Human Rights Commission for
Judicial Review (Northern Ireland) [2018] UKSC 27
Doesn’t change the law but it is important. Body that applied for case, didn’t have
standing, so SC couldn’t make a DOI. NI Human Rights Commission challenged particular
cases where it seemed most disproportionate, where the foetus has abnormality, or
where she is pregnant due to rape and incest. It is intrinsically disproportionate.
