Memorandum 13
Submission from History & Policy
ABOUT US
The author is Dr Lesley A. Hall, Senior Archivist,
Wellcome Library, 183 Euston Road, London NW1 2BE, and Honorary
Lecturer in History of Medicine, University College London. She
has catalogued the archives of the Abortion Law Reform Association
and related collections. She is the author of The Facts of Life:
the creation of sexual knowledge in Britain, 1650-1850 (jointly
with the late Roy Porter, Yale UP, 1995), Sex, Gender and Social
Change in Britain since 1880 (Palgrave Macmillan 2001), and Outspoken
Women: women writing about sex, 1870-1969 (Routledge, 1995). She
has recently completed a biography of F. W. Stella Browne (1880-1955),
a pioneer of British abortion law reform. Her personal website
includes a section on "Literary Abortion" http://www.lesleyahall.net/abortion.htm
For further information on the passage of the
1967 Abortion Act, see the Centre for Contemporary British History
witness seminar available at: http://www.icbh.ac.uk/icbh/witness/abortion/index.html,
or contact Mel Porter for a hard copy version.
History & Policy is an independent initiative
working for better public policy through an understanding of history.
It was founded by historians at Cambridge and London Universities
who believe today's "evidence-based" policy environment
would benefit from more historical input. History & Policy
works to increase the links between historians and those analysing,
discussing and deciding public policy in the UK today, and makes
historians and their research findings more accessible to policy
and media audiences. See http://www.historyandpolicy.org or email
mel.porter@sas.ac.uk for more details.
SUMMARY
This memorandum outlines the historical background
to the current state of the law on abortion in Britain as based
on the 1967 Abortion Law Reform Act and describes:
— The various legal enactments under
English law affecting abortion.
— The historical origins of the requirement
for two doctors' signatures and its current effects, notably delays
in treatment.
— How moral rather than medical factors
often effect doctors judgements on abortion.
— Why the illegality of abortion pre-1967,
led to the proliferation of dangerous "backstreet" abortions
or self-administered attempts at termination, as well as the remunerative
exploitation of loopholes in the law by a small group of medical
practitioners.
— How pre-1967 arguments against abortion
were rooted either in a perception of the risk it posed to the
women concerned, or to attitudes which associated it with sexual
immorality.
— Some suggestions about possible changes
to the existing situation In the light of this historical evidence
and more recent medical developments.
1. THE HISTORICAL
BACKGROUND TO
THE 1967 ABORTION
ACT
1.1 The long perspective
1.1.1 For many centuries women have endeavoured
to implement retroactive birth control by means of abortion. Surviving
materials from a long range of historical periods and different
cultures record numerous substances reputed to be abortifacients
and practices believed to induce miscarriage.
1.1.2 The weight of the traditional concept
of "quickening" in defining the remit of the law for
many centuries and the persisting conceptualisation by women of
the problem as "bringing on" menstruation, suggests
that the idea of pregnancy as an absolute, either/or, state, has
historically had little purchase on women's own sense of this
experience, and this can be seen as late as the mid-twentieth
century.
1.2 The development of English abortion law
1.2.1 Prior to 1803 in Britain, procuring
an abortion was an offence dealt with in the ecclesiastical or
common law courts and often assumed (prior to "quickening")
not to be a crime. In 1803 Lord Ellenborough's "Wounding
and Maiming Bill" criminalized the "malicious using
of means to procure the miscarriage of women": after quickening
this became a capital offence. The woman herself was not defined
as criminal, leaving a loophole for self-abortion.
1.2.2 In 1838 abortion was removed from
the tally of capital offences but the quickening distinction dropped.
1.2.3 The 1861 Offences Against the Person
Act made the woman herself liable for prosecution and fixed the
penalty for procuring abortion as life imprisonment. It included
a clause aimed at checking the supply of "noxious things"
and "instruments" for procuring miscarriages. The introduction
of the concept of an "unlawful" abortion enabled medical
practitioners to stake out a claim to clinical judgement concerning
"lawful" therapeutic abortion, though this remained
contested.
1.2.4 The Infant Life (Preservation) Act
of 1929 made a rather ambiguous concession towards terminating
a pregnancy to save the mother's life, by stating that the destruction
of a child "capable of being born alive" (ie the pregnancy
had lasted over 28 weeks, then considered the absolute limit of
viability) would not be a felony if "done in good faith for
the purpose only of preserving the life of the mother". However,
this did not address the question of terminating pregnancies at
an earlier stage.
1.3 Medical attitudes towards abortion
1.3.1 Some doctors quietly performed therapeutic
abortions under the assumption that intervention by a registered
medical practitioner to save a woman's life was "lawful",
but the subject was seldom debated within the profession.
1.3.2 In 1896 counsel to the Royal College
of Physicians gave the opinion that "the law does not forbid
the procurement of abortion... [if] necessary to save the mother's
life." However, doctors were continually advised by writers
on medico-legal matters and in textbooks of obstetrics, that to
prove that the operation was a necessity they should always obtain
a second opinion—the two doctors requirement that later
became law in the Abortion Act 1967.
1.3.3 Doctors were under pressure from police
and the judiciary to obtain information on illegal abortionists
by interrogating patients whom they suspected had undergone this
operation. In 1914 the Royal College of Physicians passed a resolution
stating the "moral obligation" to respect the patient's
confidence. Without consent a doctor would not be "justified
in disclosing information obtained in the course of his professional
attendance." If a woman refused to make a statement, the
doctor was under no obligation to take further action except that
which was medically necessary.
1.3.4 The extent to which registered medical
practitioners performed abortions is impossible to establish.
There was a long tradition of allegations concerning a group of
specialists for whom it was a remunerative, if covert, area of
practice. Some cases involving registered medical practitioners
did reach the courts, and it was an offence for which a doctor
could be struck off the register.
1.3.5 The findings of a British Medical
Association Committee set up to enquire into the medico-legal
aspects of abortion were published in 1936, revealing a wide range
of opinions and practices among its members, from those who believed
that relatively minor complaints such as nervousness and sleeplessness
in the woman justified abortion, to those who were reluctant to
intervene even when there were obvious life-threatening implications
for the continuation of pregnancy.
1.3.6 In Aberdeen during the 1930s, the
gynaecologist Dugald Baird took advantage of the differences in
Scottish law to perform "social" abortions for disadvantaged
women.
1.3.7 In 1938 Aleck Bourne, a gynaecological
surgeon, performed an abortion at St Mary's Hospital, London,
on a girl of fourteen who had been gang-raped, and then informed
the local police, in order to test the law. His successful defence
was that continuing the pregnancy seriously threatened her mental
health. This established an important case-law precedent under
which doctors could legally perform abortions, though medical
nervousness persisted about the precise limits of this ruling.
1.3.8 A 1948 case involving Drs Bergmann
and Ferguson established that, provided the doctor acted in good
faith, it did not matter whether he or she was actually correct
about the grounds for abortion.
1.3.9 The provision of abortion by the medical
profession remained to a great extent "Law For the Rich"
and was not widely available under the National Health Service
to any women who needed it, while birth control was still not
routinely provided under the NHS (except in cases of severe threat
to health from further pregnancies).
1.3.10 Conclusion: The ambiguous legal status
of abortion pre-1967 had an.adverse effect on clinical decision-making
by the medical profession.
1.4 The movement to reform the law
1.4.1 There were a large number of illegal,
"backstreet" abortionists, who only came to the attention
of the police and the courts if a woman died or became seriously
ill as a result of their treatment. In several cases they were
described in court as good neighbours motivated by the urge to
assist fellow women. Most individuals could readily locate a backstreet
abortionist via local networks of relatives, neighbours, or workmates.
1.4.2 Backstreet abortion or attempts to
self-abort caused a significant number of deaths and also contributed
substantially to female ill-health. The rise of a birth control
movement raised the profile of women's resort to abortion, and
concerns over the high rate of maternal mortality and morbidity
also brought the topic into debates about the health of nation.
1.4.3 Following medical and surgical advances
since 1861, by the 1920s abortion had become a relatively safe
operation if performed under surgical conditions.
1.4.4 High Court Judge, Mr Justice McCardie,
speaking from the bench at Leeds in 1931, argued that the law
should be amended to explicitly permit doctors to perform abortions,
in the light of medical and surgical progress and social changes.
1.4.5 During the 1930s a number of women's
organisations demanded a change in the law to enable women to
have safe surgical abortions; and an amnesty for women in prison
for performing illegal operations.
1.4.6 In 1936 the Abortion Law Reform Association
was established by a group of women on the radical wing of the
birth control movement, to campaign for safe abortion to be made
available to all women, in consultation with their medical practitioners.
1.4.7 In 1937 the government finally set
up an Interdepartmental Committee on Abortion, which heard extensive
evidence. Its 1939 report opposed "any broad relaxation of
the law", though its very moderate suggestions were the cause
of considerable conflict among the committee.
1.4.8 Several Abortion Bills were put before
Parliament by allies of the Abortion Law Reform Association during
the 1950s and 1960s, on the grounds that as it stood, the law
was causing death and disability for many women, and financial
exploitation of others by greedy doctors.
1.4.9 In the early 1960s the thalidomide
scandal again brought the topic of abortion into wider public
debate.
1.4.10 Providing it was performed in appropriate
conditions, the operation had by this time become extremely safe
and much safer than childbirth, though this point was not always
appreciated by opponents to legalisation.
1.4.11 In 1967 an Abortion Act was finally
passed, initially put forward as a Private Member's Bill by Liberal
MP David Steel, but granted government time and official drafting
assistance. It legalised abortion up to 28 weeks, under medical
control where women's physical or mental health was threatened,
taking into consideration adverse social conditions. It also incorporated
and gave the force of statute law to the existing "two doctors"
provision, essentially codifying existing medical practices. The
effects of this requirement are considered below (2.2.7)
2. FROM THE
1967 ACT TO
THE PRESENT
2.1 Responses to the change in the law
2.1.1 The overt inscription of the right
to abortion in law provoked a vigorous backlash. Even before the
law changed a vociferous anti-abortion lobby sprang up, which
agitated for restriction of the law once it had failed to prevent
the Bill passing.
2.1.2 It was around this time that opposition
to abortion began to be expressed specifically in terms of the
"right to life". Arguments had previously focussed either
on the danger to the woman herself, or the immoral desire to evade
parenthood. It is perhaps relevant that contraception was not
universally available under the National Health Service until
1974.
2.1.3 As a result of the vehement opposition,
the Lane Committee was set up in 1971 to enquire into the working
of the Act and concluded that, apart from commercial sector abuses,
the Act worked well and as intended. Considerable variations in
the availability of abortion in different regions led to the establishment
of charitable clinics performing abortions at a low cost, as well
as private clinics where the charges were higher.
2.1.4 During the 1980s there were several
attempts by MPs, with the support of organisations opposed to
the Act, to introduce bills to restrict the law, none of which
succeeded in modifying the terms of the 1967 Act.
2.1.5 Attempts by various women's groups,
in particular the National Abortion Campaign, to liberalise the
system further, for example by enabling abortion on request during
the first trimester, and doing away with the "two doctors"
provision, also failed.
2.1.6 Medical personnel are permitted to
"conscientiously object" to assisting with abortions
except in cases where the woman's life is seriously threatened.
It is reported that some doctors' own moral (rather than medical)
views lead them to refuse or delay abortions that would be in
accordance with the existing law and, although abortion is legal,
obtaining one under the National Health Service is very much a
"postcode lottery" with distinct inequalities of provision
in different areas.
2.1.7 Conclusion: In many instances, moral
rather than medical factors have influenced judgements over abortion.
2.2 Medical changes and their legal impact
2.2.1 As a result of advances in neonatal
medicine leading to the survival of very premature babies, a reduced
time-limit of 24 weeks was incorporated as Section 37 of the 1990
Human Fertilisation and Embryology Act, except in cases where
the woman's life is in danger, continuing pregnancy would involve
grave permanent injury to her health, or the child would suffer
from severe mental or physical handicap. This time-limit continues
to be contested, given continuing progress in neonatology, although
very premature babies appear to suffer from significant developmental
problems.
2.2.2 There are increasingly sophisticated
means of diagnosis available to ascertain the state of the developing
foetus, although some, such as ultrasound scans, cannot be reliably
used until partway through the second trimester or even later
in pregnancy.
2.2.3 There have been developments in medical,
rather than surgical, means of abortion, with the advent of the
"abortion pill" (mifepristone and misoprostol), which
is an extremely safe and effective method of terminating a pregnancy
of less than eight weeks, without the potential dangers of surgical
intervention.
2.2.4 Surgical abortion remains considerably
safer than childbirth although a number of risks remain, which
increase the later in pregnancy it is undertaken.
2.2.5 While various alarmist claims have
been made about the long-term physical and mental repercussions
for the woman, most of these are not supported by reliable and
credible medical evidence, and may even be contradicted by it.
2.2.6 Setting a strict upper limit or restrictions
on specific operations would create a number of problems. Many
rare but serious conditions, affecting both mother and child,
that necessitate termination, only manifest or are diagnosable
at a relatively late stage of pregnancy, by which time the effective
options are limited.
2.2.7 It has been suggested that the administrative
requirement for the signature of two doctors causes undesirable
delays. This provision, based in the long-standing pre-1967 concern
to protect doctors from prosecution, does not apply to any other
lawful operation and it is hard to see who exactly it is protecting
now that termination is legal. Given the time constraints involved
in abortion and the evidence for the increase in risk the later
it is performed, it is not clear what medical purpose this requirement
serves. The new developments in medical abortion raise the possibility
that these might reasonably be carried out under the supervision
of trained nurses or midwives.
2.2.8 Conclusion: The "two doctors
provision", rooted in doctors' needs to protect themselves
prior to the 1967 Abortion Act. is outdated now and causes potentially
harmful delays.
3. CONCLUSIONS
3.1 The numbers of abortions performed is
now recorded and statistics tabulated, but there are no reliable
figures for the numbers of abortions performed under less safe
conditions before 1967. The number of abortion-related deaths
and the amount of injury to women's health have, however, declined
dramatically after 1967.
3.2 It can be argued that the current system
creates delays which can lead to adverse outcomes, and these could
be significantly ameliorated by enabling the majority of abortions
to be performed as early as possible, in particular by non-invasive
means such as the abortion pill.
3.3 There is little evidence that abortions
would necessarily be any fewer if illegal; only that they would
be more dangerous, and the availability of the operation more
erratic and inequitable with a considerable likelihood of financial
exploitation.
August 2007
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