17 July 2007

1967 Abortion Act: The debate to date

Jennie Bristow, editor of Abortion Review, rounds up the arguments.

As the UK marks the fortieth anniversary of the 1967 Abortion Act, moves are underway to amend this law through the new Human Tissue and Embryos Bill, the draft of which was published in May 2007. This provides a welcome opportunity for all those involved in abortion care and the pro-choice movement to re-examine the legal principles surrounding abortion in the UK, and to develop a law that best serves the interests of women today.

The Parliamentary debate also, of course, gives scope to the anti-abortion lobby to attempt to make the law on abortion more restrictive. To that end, we have seen three bills in eight months introduced in the House of Commons by Conservative backbench MPs, proposing further limits to the 1967 Abortion Act. These bills have all failed, yet they indicate that there is a continuing attempt to formulate new arguments against abortion, and that there is some constituency, in Parliament, the media, and the public, for such arguments. It is therefore worth assessing where things stand at the moment, in terms of the existing abortion law, and the arguments for change being presented from both sides.

The law as it stands

The Abortion Act 1967, as amended by the Human Fertilisation and Embryology Act 1990, permits the termination of pregnancy up to 24 weeks’ gestation where two doctors have formed the opinion, in good faith, that:

  • ‘The continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family.’

    Furthermore, a pregnancy may be terminated up to birth where two doctors have formed the opinion, in good faith, that:

  • ‘The termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or

  • ‘The continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or

  • ‘There is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.’

    The law further requires that abortion takes place on NHS or approved premises.

    Currently a woman seeking a termination of pregnancy must find two doctors who believe she meets at least one of the four criteria outlined above. However, as the British Medical Association’s (BMA) Medical Ethics Committee recently noted, ‘In reality … it could be argued that a woman who is seeking an abortion in the first trimester will generally satisfy the first provision since an early termination is less risky to her health than pregnancy and childbirth.’

    The draft Human Tissue and Embryos Bill follows on from the policy proposals outlined in the white paper Review of the Human Fertilisation and Embryology Act, published in December 2006. The draft Human Tissue and Embryos Bill is intended to revise the law on assisted reproduction and embryology, and to establish the Regulatory Authority for Tissue and Embryos (RATE). Just as the Human Fertilisation and Embryology Act 1990 made some amendments to the 1967 Abortion Act, there is the possibility that the new Human Tissue and Embryos Bill will include amendments to the current abortion law. This is why both sides of the abortion debate are honing their arguments in relation to a) the kind of law they want and b) the legal changes they think Parliament may accept.

    It is important to bear in mind the distinction between these two points. For example, many in the anti-abortion movement may want abortion to be outlawed completely, but they are aware that Parliament is not going to overturn the 1967 Act. Therefore, the arguments they employ are to do with restricting women’s access to abortion in various different ways, rather than banning it completely.

    A more restrictive law

    The recent attempts by Tory backbench MPs to bring about a more restrictive abortion law have focused on three key arguments: a reduction of the 24-week ‘time limit’; an end to confidentiality for under-16s; and compulsory counselling about the mental health ‘risks’ of abortion. Let’s look at each of these in turn.

    Reducing the time limit

    On 31 October 2006, MPs voted 187 to 108 against a bill calling for the legal time limit for abortions to be cut from 24 weeks to 21 weeks. The bill was introduced by Conservative MP Nadine Dorries, who argued that a fetus may feel pain from 21 weeks. In previous times, the argument for reducing the time limit centred on viability, and there is still some sympathy with the view that a fetus should not be aborted at a gestation at which it would be able to survive outside the womb. However, there is clear evidence that the survival rate for babies born at under 24 weeks’ gestation remains extremely low, and the prognosis for all ‘pre-prematurity’ survivors is extremely poor. Perhaps for this reason, Ms Dorries centred her argument, not on viability but on ‘the issue of fetal sentience - how fetuses respond to pain, sound etc.’ Dorries claimed: ‘The latest scientific research puts the case of sentience at around 21 weeks.’

    In fact, the issue of fetal pain is a highly contested one, and claims about fetal responses often rely more on emotion than science. The introduction of 4-D ultrasound images of fetuses ‘walking’ and ‘smiling’ in the womb have done much to fuel the notion, popularised by the mainstream media, that a fetus is just like a born-at-term baby, with the same responses and reactions. Yet as Donald Peebles, of the Department of Obstetrics and Gynaecology at University College London, argued at a scientists’ briefing in October 2006, there is ‘a temptation to associate these movements - sucking a thumb, gasping as if talking - with adult movements, to think it is sucking its thumb because it is happy’ and that feeling is ‘extraordinarily dangerous’. The scientific viewpoint is that it is a baby’s contact with the social world that develops its consciousness, and therefore its ability to feel pain. But the anti-abortion lobby has gained some ground in exploiting the emotions aroused by hi-tech imagery and common-sense assumptions about fetal sentience, and we can expect versions of this argument to re-occur over the coming months.

    Teenage confidentiality

    On 14 March 2007, a bid by Conservative MP Angela Watkinson to force doctors offering abortion or contraception advice to under-16s to inform the child’s parents was rejected by MPs, who voted 159 to 87 to retain the current guidelines guaranteeing confidential advice to under-16s. There have been attempts to undermine the right of under-16s to confidential sexual health advice since the infamous campaign by Victoria Gillick in the mid-1980s. The Department of Health (DH) reaffirmed the principle of confidentiality in its 2004 document Best Practice Guidance for Doctors and Other Health Professionals on the Provision of Advice and Treatment to Young People under Sixteen on Contraception, Sexual and Reproductive Health, and a high-profile legal challenge to this guidance, brought by Sue Axon of Baguley, Manchester, failed in January 2006.

    With the government’s commitment to reducing teenage pregnancy, and service providers’ long understanding of the importance of confidentiality in being able to provide teenagers with an effective service, it is unlikely that such attempts to assert a ‘parent’s right to know’ will be successful. However, the Watkinson bill is another example of the way in which the abortion law is rarely challenged head-on, but through targeting specific, emotionally-charged aspects of the law, such as the possibility of under-16s being able to have an abortion without their parents’ consent. 

    Mental health ‘risks’ and a ‘cooling off’ period

    On 5 June 2007, Conservative MP Ann Winterton’s attempt to introduce compulsory abortion counselling and a week-long ‘cooling off’ period was defeated in the House of Commons by 182 votes to 107. Mrs Winterton said women should be made aware of the ‘risks’ of abortion, such as potential mental health problems. She said research showed that women with a history of psychiatric problems should not have abortions, and even those without were at risk of ‘psychological ill effects’.

    As Ellie Lee notes on Abortion Review, there is no evidence that abortion directly causes mental health problems. Yet the argument that abortion is bad for women’s mental health has become more widely used in recent years, by campaigners’ cynical attempts to provide a ‘woman-centred’ argument against abortion.

    A ‘cooling off’ period had also been proposed by Nadine Dorries, who proposed that women wait 10 days between a request for an abortion and it being performed, in order to receive information and counselling about the ‘medical risk of termination’ as well as of carrying a pregnancy to term ‘as a condition of informed consent’. That this proposal is motivated by a desire to reduce abortion numbers rather than any genuinely woman-centred reason was shown by Ms Dorries’ argument that providing (negative) information and counselling was based on experience in Western Australia, where abortions have dropped since it was introduced in 1998. Given that the policy context of abortion is one that emphasises women’s early access and attempts to reduce waiting times, it is unlikely that demands to make women wait for the sake of it will garner much support. However, such arguments indicate the convoluted, insidious character reflected in many of the anti-abortion lobby’s proposals.

    A more flexible law

    Fortunately, the current debate around the abortion law has also generated some thoughtful, practical proposals about how the needs of women could be better met. One example is the BMA Medical Ethics Committee’s briefing paper First Trimester Abortion, which was produced for the BMA’s Annual Representative Meeting in June 2007. The Medical Ethics Committee called for the revision of the Abortion Act 1967 so that, in the first trimester:

  • Women are not required to meet medical criteria for abortion;

  • The requirement for two doctors is removed;

  • Suitably trained and experienced nurses and midwives may carry out both medical and surgical abortions;

  • As long as safety is ensured, premises do not need to be approved to carry out first trimester abortions.

    Furthermore, the committee has registered its belief that ‘changes in relation to first trimester abortion should not adversely impact upon the availability of later abortions’.

    These proposals are both positive and practical. The concept that women should be ‘allowed to decide for themselves, on the basis of informed consent, whether to continue an unwanted pregnancy in the first trimester, rather than requiring women to demonstrate that they meet medical criteria’, is, notes the committee, ‘accepted as the norm in many countries’ including Australia, Austria, Belgium, Canada, Denmark, France, Germany, Italy, Sweden and some parts of the USA.

    The requirement that two doctors authorise a woman’s abortion is unnecessary and time-consuming. The committee further notes the argument that such a requirement is ‘out of step with the increasing emphasis on patient autonomy in all other areas of medicine’:

    ‘Women make other important decisions concerning both their own health and that of their fetus without the need to involve two doctors and they should be given the same decision-making authority in relation to this aspect of their pregnancy.’

    The call to allow ‘suitably trained and experienced nurses and midwives’ to carry out abortions makes a great deal of sense in today’s context, where the development of Early Medical Abortion allows for an easily-administered procedure, and the refinement of surgical abortion techniques has greatly reduced risk. As the committee argues, ‘the level of training and experience a person has is the most important factor in determining which procedures should be undertaken by which professions’. Likewise, the committee’s proposed relaxation of the rules governing the premises upon which an abortion may be carried out represents a welcome recognition of the extent to which abortion procedures in the first trimester are more straightforward than ever; and, in the case of Early Medical Abortion, the ability of women to carry out their abortion in the comfort and privacy of their homes would make a significant improvement to the service.

    On 27 June, the BMA’s Annual Representative Meeting passed the following policy motion by 67% in favour:

    ‘That this Meeting calls for legislation to be amended so that first trimester abortion would be available on the same basis of informed consent as other treatment and therefore without the need for two doctors’ signatures and that changes in relation to first trimester abortion should not adversely impact upon the availability of later abortions.’

    The meeting rejected, however, the proposal that nurses and midwives to carry out terminations.

    Public, political and medical opinion suggests that calls for practical, positive reform to the abortion law are more convincing in the current times than the insidious attempts by the anti-abortion lobby to make access to abortion more restrictive. The challenge is to grasp this opportunity, and work to formulate the kind of law that will best meet the needs of women today.

    This article appears in the Autumn 2007 print edition of Abortion Review.

    Also read:

    1967 Abortion Act section, Abortion Review