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  • Cited by 3
  • Print publication year: 2009
  • Online publication date: October 2009

5 - Moral Authority in English and American Abortion Law

Summary

In R. (on the application of Axon) v. Secretary of State for Health & Another, the English High Court affirmed that “the duty of confidentiality owed to a person under 16, in any setting, is the same as that owed to any other person.” Young women are entitled to seek and receive sexual health care, including abortion care, without parental notification.

The Court resolved the case primarily by reference to the “mature minor” rule, first developed in Gillick v. West Norfolk and Wisbech AHA and another. The rule states that a young person can give consent valid in law provided he or she has sufficient maturity and intelligence to understand the nature and implications of the proposed care. The Court reasoned that a logical relationship exists between the capacity to consent and the right to do so in privacy. Parental notification contradicted the mature minor rule and was inconsistent with Gillick. Evidence that without the guarantee of confidentiality young persons may be deterred from seeking care confirmed the rule as good public policy.

Axon is also a constitutional case, reflecting a legal landscape that has changed drastically since Gillick was decided more than twenty years ago. Most significant is the introduction of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which strengthened the language of competing rights and state interests in the English legal system.

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