A Doctor’s Right to Choose: The dishonesty of English abortion law

Commentary by Sally Sheldon, professor of law at Kent Law School.

The English Parliament has shown a regrettable tendency to hand over controversial decisions regarding reproduction to clinicians rather than trusting women, or in certain circumstances couples, to make those decisions for themselves. While similar points might be made about the Human Fertilisation and Embryology legislation, the Abortion Act (1967) seems to me to be the most extreme and egregious example of this tendency, and it is this example I will outline here.

If you look back to the debates which preceded the introduction of the Abortion Act in the late 1960s, these were advanced a series of assumptions about the kind of woman who would seek to terminate a pregnancy. So we have desperate, multi-child mothers with alcoholic husbands who are incapable of raising a child, we have selfish, immature, promiscuous teenagers who are incapable of raising a child. What we don’t see are morally capable, rational women who are capable of making decisions for themselves. And in that context and relying on that set of values, it is probably not surprising that Parliament took the decision to hand over the abortion decision to high-minded, responsible clinicians rather than to women ourselves.

Abortion is clearly legal in Britain, but what is meant by that is that it is permissible. It’s not a right: no woman here has a right at any point in her pregnancy to terminate that pregnancy – what she can do is go and ask two doctors to make that decision for her. So the assumption that’s embodied in the 1967 Abortion Act is that this deeply personal reproductive decision is better made by a clinician than by the woman herself.

In practice, this has led to in practice a very liberal access to abortion in this country. Many clinicians, indeed most clinicians, aren’t very comfortable scrutinising women’s reasons for abortion and see it as a decision that belongs to the woman herself. So you might be tempted to say, ‘Well, why are you talking about this, does it matter?’ I think it does matter. It matters firstly because principles matter – it matters what the principles that underpin legislation are, it matters what the basis of our legislation is.

It also matters because gender is deeply relevant here. An unwillingness to let individuals make their own reproductive decisions means, in this instance, an unwillingness to let women make their own decisions. And that fits very neatly into a long and ignoble tradition in English law of giving decisions to someone else because women aren’t capable of making them for ourselves. It’s less than 150 years since all women have been able to own our own property, for example.

Finally it matters because the law poses a range of practical problems for those who provide abortion services. If you have a piece of legislation that says that this decision belongs to clinicians, this clearly offers scope for clinicians who aren’t sympathetic to termination to place hurdles in the path of women who are looking for abortions. The fact that that might not happen to many women, or it might not happen very often, does not mean that it shouldn’t concern us - because the women that it’s going to matter most for are the most vulnerable women, the women who don’t have English as their first language, who don’t know their way around the system, who live in rural areas where they haven’t got ready access to an alternative healthcare provider, and so on. So I think this is profoundly important.

I am not saying that I don’t think that doctors have any important role to play here. Clearly, they do. Clearly, clinicians must advise women on medical risks and benefits, and they must provide high quality of treatment. What they need to avoid, however, is the confusion of what is a moral and what is a medical decision, which allows them to make moral and personal decisions for women. I recognise that in areas of clinical practice this is difficult because these different factors can merge together, but I think what we need to do is get a lot better at trying to separate out moral decisions from medical or clinical ones.  Above all, we should be aware of the disingenuity and political expediency of Parliament when it tells us that something is a medical matter, when really we can see that it is an issue in which all these moral and social issues are highly implicated.

Finally, I would note that I don’t come to this view because I believe that abortion is a morally insignificant decision. I think the decision whether to continue a pregnancy, whether to bring a child into the world, is a deeply morally serious issue. The issue of the moral status of the fetus is profoundly important. My own position is that the fetus isn’t a full moral person worthy of equivalent moral respect to someone who has been born, but that isn’t to say that the embryo or fetus has no moral worth. Where I differ from some people in this debate, however, is that I believe that women are capable of making morally significant decisions and, indeed, that they are better equipped to make decisions that are going to affect every aspect of their future lives than a doctor whom they may never have met before and who may have very limited insight into their social situation.

What changes would I like to see to the abortion legislation in the 21st century? Firstly, I would like more honesty about what is a medical question and what is a moral or social question. What happens all too frequently in debates about reproductive choice is that moral assumptions and moral values are smuggled in. This happens when an abortion decision is described as primarily a clinical or a medical decision. It can also happen when moral judgements are smuggled in under the guise of resource allocation, when it is argued that certain kinds of women can’t be treated because we can’t afford to treat everyone. Of course resources are finite and not all treatments can be funded, but we need to be clear about when a refusal is based on clinical grounds and when it is based on moral grounds. 

So the first thing I would like is more transparency about the values that we’re bringing to these debates, and honest recognition when these are moral values rather than clinical or medical considerations. And my second hope for the 21st century is that we might begin to trust women to make reproductive decisions for ourselves. 

Professor Sally Sheldon is professor of law at Kent Law School, University of Kent. This is an edited version of a speech given by Professor Sheldon at the Battle of Ideas, 31 October 2009.

Also read:

Three’s a crowd? The battle over population and reproduction, by Dr Ellie Lee. Abortion Review, 6 November 2009

Abortion and fertility treatment: Whose right to choose? By Ann Furedi, Abortion Review, 8 November 2009