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Abortion Law in England: The Medicalization of a Crime

Published online by Cambridge University Press:  01 January 2021

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Abortion is the most divisive issue in American society today, but that is not unique because the issue troubles many other Western countries as well. Acrimonious debate has ensued in America in the wake of the Supreme Court's latest pronouncement in Webster v. Reproductive Health Services. Anxiety about the future of the law in America has been widely expressed by pro-life and prochoice groups alike. These could well be the visible skirmishes of the abortion battle and the conflict over the existence of a woman's right to choose in almost any Western jurisdiction. Perhaps only the intensity of debate and venue of battle vary.

In the wake of Roe v. Wade the American battle fronts have mainly been in the courts. A plethora of cases in both state and federal courts has tested the constitutionality of legislation passed by State legislatures restricting the availability of abortion.

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Copyright © 1990 American Society of Law, Medicine & Ethics

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References

“The Battle Over Abortion,” Newsweek, May 1, 1989: 2832; “Whose Life Is It?,” Time May 1, 1989: 20–24; “Save the Babies,” Id., 26–28.Google Scholar
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This paper considers the law as it pertains to England and Wales but not Scotland or Northern Ireland. For the law in Scotland see, Norrie, , “Abortion in Great Britain: One Act, Two Laws,” [1985] Crim LR 475.Google Scholar
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The secular or common law must be distinguished from the ecclesiastical or canon law. The latter was within the jurisdiction of the ecclesiastical courts and was religion based. For a discussion of the development of canon law in this area see, Noonan, , “An Almost Absolute Value in History” in Noonan, (ed) The Morality of Abortion: The Legal and Historical Perspectives, Cambridge: Harvard University Press 1970: 159; Dickens, , Abortion and the Law, London: MacGibbon and Kee, 1966, 14–20; Williams, , The Sanctity of Life and the Criminal Law, New York, 1957 148–152.Google Scholar
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Means’ argument is based to a large extent upon two early cases which he claims conclusively show that abortion was not a criminal offense at common law. These cases are ‘The Twinslayer's Case’ (Anonymous, YB Mich 1 Edw 3 f 23 pl 18 (1327)) and ‘The Abortionist's Case,’ (Anonymous, YB Mich 22 Edw 3 (1348)). Both Gavigan op cit at 22–30 and Keown op cit at 4–5 criticize Means’ interpretation of these cases on a number of grounds: (i) the Twinslayer's Case only stands for the proposition that pre-natal injuries causing death outside the womb could not be murder [the common law subsequently held that it could be see note 23 supra]; (ii) the cases really lead to acquittals because of difficulties of proof and procedure—arrest on an unrelated charge and absence of a baptismal name in the case of one unborn child. See also, Bryn, , “An American Tragedy: The Supreme Court on Abortion,” 41 Fordham LR 807 (1973).Google Scholar
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Here, replacing section 2 of the 1803 Act.Google Scholar
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Though strangely, Macnaghten, J. in R v. Bourne [1939] 1 KB 686,691 accepted counsel's argument that the Act “provides for the case where a child is killed by a wilful act at the time when it is being delivered in the ordinary course of nature…” (emphasis added).Google Scholar
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See article refd at note 50; See also Skegg, op cit at 7–12 and passim Keown supra note 51.Google Scholar
[1988] 1 QB 135.Google Scholar
The father adopted this argument to avoid the consequences of the earlier decision of Paton v. BPAS [1979] QB 276 where the court held that a husband could not seek an injunction to prevent his wife undergoing a lawful abortion.Google Scholar
For a discussion of the locus standi issue see, Grubb, and Pearl, , “Protecting the Life of the Unborn Child103 LQR 340 (1987). Even if it could be said that the father had locus standi, it is evident that English law generally does not allow a private citizen to enforce the criminal law by seeking an injunction in civil proceedings. This would have been a conclusive argument against C. See Gouriet v. UPOW [1978] AC 435.Google ScholarPubMed
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Section 5 (1).Google Scholar
Section 1 (1).Google Scholar
Section 1 (3).Google Scholar
Section 2.Google Scholar
Section 1 (1) and (2).Google Scholar
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Section 1 (3).Google Scholar
Section 2. The current regulations are The Abortion Regulations 1968 (SI 1968 No 390) as amended principally by the Abortion (Amendment) Regulations 1976 (SI 1976 No 15).Google Scholar
Section 1 (4).Google Scholar
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Introduced by the 1976 Regulations, section 4. The ‘Lane Committee’ op cit would have gone further and required the Regulations to impose a duty on the certifying doctors to examine the patient, see para 521. This was not done, perhaps, because it might have resulted in the Regulations being declared ultra vires by a court. Nevertheless, this requirement may be necessary in order for a doctor to form a “good faith” opinion under the Act, see infra.Google Scholar
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Probably not if they merely prevent implantation of the embryo, see Sir Michael Havers QC (Attorney General of England and Wales), 42 Parl Deb HC 238,239. However, it may be that an IUD or RU-486 may act to cause the expulsion of an implanted embryo if that has already occurred. For a discussion of the legal issues see, Kennedy, , “The Legal and Ethical Implications of Postcoital Birth Control” in Grahame, (ed), Postcoital Contraception: Methods, Services and Prospects (1983) at 62. Is ‘menstrual aspiration,’ a procedure performed shortly after a woman has unprotected sexual intercourse, an abortion procedure? Unlike the other two it seems solely to be directed towards any implanted embryos and, therefore, it looks like a ‘miscarriage.’ See the discussion by Tunkel, , “Abortion: How Early, How Late, and How Legal?2 BMJ 253 (1979).Google Scholar
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This was the fate of the Corrie Bill in 1979 and the Alton Bill in 1988. The latter which commanded a majority of 45 at its Second Reading stage (see 1 Lancet (1988) 251) fell on May 6, 1988 because of filibustering tactics of its opponents at the Committee stage (see 1 Lancet (1988) 1118). Further ploys, this time by Mr. Alton, to amend a Government Bill to add the abortion provisions also subsequently failed (1 Lancet (1988) 1175). The Bill introduced by Ann Widdecombe MP in December of 1988 is co-sponsored by the defeated Mr. Alton and represents in form his Bill which fell earlier in the year.Google Scholar
The ‘Lane Committee’ op cit paras 274–283 recommended this change in 1974. It also seems to have the universal support of the medical profession. See, “Report on Fetal Viability and Clinical Practice” (August 1985) (Committee set up by Royal College of Obstetricians and Gynaecologists, British Paediatric Association, Royal College of General Practitioners, Royal College of Midwives, British Medical Association and the Department of Health and Social Security).Google Scholar
The change may come by amendment to the Human Fertilization and Embryology Bill 1989 when it comes before the House of Commons in 1990. In granting licenses to private clinics, the Government has only done so on condition that the clinic agrees not to perform any post-24 week abortions. See Clarke, , supra note 14 at 167.Google Scholar
(1988) 44DLR(4th) 385.Google Scholar
[1980] 3 EHRR 408.Google Scholar
This argument was dismissed because the Commission held that Paton's rights under Article 8 had to be considered limited by his wife's rights as a pregnant woman carrying the fetus and so interference with them was justified “as being necessary for the protection of the rights of another person” (Id at 416).Google Scholar
Supra note 140 at 413.Google Scholar
Dehler v. Ottawa Civic Hospital (1979) 101 DLR(3d) 686; Borowski v. The AG for Canada (1987) 4 DLR (4th) 112 (on appeal to the Supreme Court of Canada).Google Scholar

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