Abortion law reform and conscientious objection in the United Kingdom

Nucleus, October, 2004
Christian Medical Fellowship (United Kingdom)
Reproduced with permission

In Abortion Law Reform author Jacky Engel reviews the legal history of abortion in the United Kingdom from 'Lord Ellenborough's Act' of 1803, though most of her attention is directed to developments beginning with the Bourne case of 1939. Ms. Engel's discussion of the parliamentary debates in 1967 is reproduced below because of its references to conscientious objection. [Administrator]

. . . Luck of the draw

Steel's bill underwent considerable discussion and amendments before it successfully passed into law as the Abortion Act 1967. Its passage was helped by two previous bills that had passed through the House of Lords. In 1965 and 1966, Lord Silkin introduced bills to legalise abortion - the first time Parliament gave significant attention to the abortion laws. The Lords discussed the bills in depth and amended them extensively to try and find a law that would be acceptable. The ALRA assisted Silkin and when Steel agreed to take up their cause, Lord Silkin dropped his bill so they could focus their energy on the Commons. Silkin's bills meant that those in favour of reform already knew the hurdles they would need to overcome to get a bill passed into law.

Parallels could be drawn with recent attempts by Lord Joffe to get a bill legalising assisted suicide through the Lords. Whether he is successful or not, he has done a lot to raise awareness of the issues, promote debate and provoke public sympathy. If a supportive MP was fortunate in the ballot for Private Members' Bills, we could see a euthanasia bill successfully pass through the Commons.

Debate in the Commons

A number of lines of argument were used to persuade Parliament that abortion should be legalised. These focussed primarily on the hard cases: rape, extreme poverty, grave risk to the mothers' life and serious fetal abnormality. The concerns voiced and the assurances given are interesting in light of the way medical practice has developed since.

The social clause

The 'social' clause in Steel's bill first appeared the previous year in Silkin's bill. A main argument for the clause was 'backstreet abortion' and the dangers inherent in cheap, illegal terminations. Tragic cases were cited and annual numbers ranging from 14,600^[6] to 250,000^[7] estimated. Set against the image of the 'overstrained wife' was the injustice of a different rule for the rich - an amenable gynaecologist could always be found to carry out a safe, sterile termination, providing the price was right.

The intention of the social clause was to enable safe and free access to legal abortion for women in difficult situations. Steel asserted that it was not his intention to 'leave a wide open door for abortion on request.'^[8] Rather he saw this clause as a just response to a social problem.

There were predictions that abortion on demand would inevitably follow. The BMA, Royal College of Obstetricians and Gynaecologists (RCOG) and other professional bodies were concerned that the doctor's role would shift from medical decision-maker to arbiter of social issues. It was suspected at the time that this would prove unworkable and the woman's attitude to pregnancy would be the ultimate determinant of whether she received an abortion. The bill's supporters rebuked these fears: 'it is only in extreme cases that a woman wants to terminate her pregnancy.'^[9]

David Steel recognised the logical force of the two extreme views and argued that the role of legislation was to 'find a balance between' the extremes. Perhaps this is inevitable in a society with diverse beliefs. However, when the pro-abortion side continue to lobby for increasingly liberal laws, we must strive for positive law reform, whilst recognising practically that we may never reach an ideal situation.

The social clause was eventually dropped from the bill, but effectively reappeared in section 1(1)(a) of the 1967 Act: 'continuance of the pregnancy would involve risk… of injury to the physical or mental health of the woman… greater than if the pregnancy were terminated' with the section 1(2) proviso that 'account may be taken of the pregnant woman's actual or reasonably foreseeable environment.'

The passage of time demonstrates that abortion is effectively available on demand. About 98% of the annual 181,600^[10] abortions in England and Wales are carried out under this clause. The RCOG now views abortion as a 'healthcare need',^[11]and in their About Abortion Care booklet for women using abortion services they state, 'Most doctors feel that the distress of having an unwanted pregnancy is likely to be harmful and so will refer a woman who does not want a baby for an abortion.'^[12]

Conscientious objection

Section 4(1) of the 1967 Act permits that 'no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment…to which he has a conscientious objection.' This does not apply to emergency procedures. This was not in the original bill, but was introduced in response to concerns that doctors would be under pressure to perform terminations against their beliefs. Interestingly, one amendment that didn't make the final Act proposed that, 'no person [shall be]…deprived of, or be disqualified from, any promotion or other advantages by reason of the fact that he has such conscientious objection.'^[13]

The experiences of doctors practising in this area are difficult to gauge beyond individual reports of discrimination,^[14,15] but professionals accept that one of the Act's consequences is to 'discourage doctors with certain convictions from attempting to follow a career in hospital obstetrics.'^[16] CMF surveyed its members in 1996 and found that 9% of 372 doctors thought they had been discriminated against in obstetrics and gynaecology or anaesthetics because of their views about abortion.^[17] Whilst the BMA 'abhors' discriminatory behaviour,^[18] others will argue that physicians have a duty to provide socially sanctioned procedures.^[19] If there truly is a rising tide among junior doctors against overuse of the Act,^[20] this issue will become increasingly salient.

In the 1966 debates one reformer said that, 'it is quite wrong for any doctor to put his ethical reasons before the consideration of his patient.'^[21] However, the conscientious objection clause was a concession that had to be made in order to get the legislation passed. The ALRA website today^[22]states that, 'The 1967 Abortion Act was a huge step forward, but it does not go far enough…Women should not be forced by law to rely on the decision of their doctors who are sometimes influenced by moral rather than medical judgement.' Their intention is clear. However much philosophers may try to deny the 'slippery slope', and reformers assert that regulations will prevent it, it seems to me they must be either profoundly naïve, or knowingly lying.

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References

6. Royal College of Obstetricians and Gynaecologists, Report on Legalised Abortion, BMJ 1966; 2 April

7. A National Opinion Poll at the time estimated it at 31,000 a year since the war, based on questionnaire replies from 2,100 women. They calculated a total of 600,000 abortions from 1946-66, mostly illegal. Cited in Simms M, Hindell K. Op cit: 32

8. Hansard, 22 July 1966. 832:60 Mr David Steel at 1075

9. Hansard, 22 July 1966. 832:60 Dame Joan Vickers at 1108

10. Abortion Statistics, England and Wales: 2003. Department of Health

11. The Care of Women Requesting Induced Abortion. London: RCOG, March 2000

12. About Abortion Care. London: RCOG, May 2001:4

13. Standing Committee F. 18 January 1967. NC2

14. BMA News Review 1999; September:18,19

15. Social Services Committee Tenth Report. Abortion Act 1967 'Conscience Clause'. 1990

16. Letter from the Association of Anaesthetists of Great Britain and Ireland, March 1975

17. Burton E, Fergusson A. Christian Medical Fellowship Members' Attitudes to Abortion: a survey of reported views and practice. London: CMF, 1996:12

18. The Law and Ethics of Abortion: BMA Views, 1999

19. Meyers C, Woods RD. An obligation to provide abortion services: what happens when physicians refuse? JME 1996, 22:115- 120

20. Ibid

21. Hansard, 22 July 1966. 832:60 Dame Joan Vickers at 1111

22.