Abortion Law in England: The Medicalization of a Crime

“The Battle Over Abortion,” Newsweek, May 1, 1989: 28–32; “Whose Life Is It?,” Time May 1, 1989: 20–24; “Save the Babies,” Id., 26–28.

For a comparative law discussion of abortion see Frankowski and Cole eds, Abortion and Protection of the Human Fetus: Legal Problems in a Cross-Cultural Perspective: Kluwer, 1987

57 Law Week 5023 (1989).

410 US 113 (1973).

For a full discussion see Note, “The Evolution of the Right to Privacy After Roe v. Wade” 13 American journal of Law & Med 365, 365–466 (1987). An easy to read summary of what might happen in state legislatures if Webster (as it does in part) returns abortion issues to the legislatures is “State by State,” Newsweek, supra note 1: 38.

But Webster is not even the latest. See, “Supreme Court Justice Blocks An Abortion for a Teen-Ager,” New York Times, May 17, 1989.

Schwartz H. , Packing the Courts: The Conservative Campaign to Rewrite the Constitution, New York: Charles Scribner's Sons, 1988.

See Keown J. , Abortion, Doctors and the Law, Cambridge University Press, 1988 ch. 6.

Paton v. British Pregnancy Advisory Service Trustees [1979] 1 QB 266 (Baker P.); C v. S [1988] 1 QB 135 (CA); Royal College of Nursing of the United Kingdom v. DHSS [1981] AC 800 (HL).

Pickin v. British Rail Board [1974] AC 765 (HL); Manuel v. Attorney General [1983] Ch 77 (CA).

As was attempted in the Paton and C v. S cases, supra note 9.

Gillick v. DHHS [1986] 1 AC 112, 194 per Lord Bridge.

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.

See, Clarke , “Abortion: A Rights Issue?” in Lee and Morgan (eds.) Birthrights: Law and Ethics at the Beginning of Life, London, 1989.

See generally, Glendon , Abortion and Divorce in Western Law, Harvard University Press, Cambridge, 1987; Goldstein , Mother-Love and Abortion: A Legal Interpretation, University of California, 1988.

Means , “The Phoenix of Abortional Freedom: Is a Penumbral or Ninth-Amendment Right About to Arise From the Nineteenth-Century Legislative Ashes of a Fourteenth-Century Common-Law Liberty?” 17 NYLF 335 (1971); Gavigan , “The Criminal Sanction as it Relates to Human Reproduction: The Genesis of the Statutory Prohibition of Abortion” 5 J Leg History 20 (1984).

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: 1–59; 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.

Perhaps even if the fetus had not quickened see, Folio 121 (Thorne 1968) “…if the fetus is already formed or quickened, especially if it is quickened, he commits homicide” (emphasis added). In Commonwealth v. Bangs 9 Mass 387 (1812), the Massachusetts' Supreme Judicial Court held that it was not a crime at common law to abort a fetus prior to quickening. See also Commonwealth v. Parker 50 Mass 263 (1845).

De Legibus et Consuetudinibus Angliae 279 (c. 1250).

R v. Phillips (1811) 3 Camp 76 (a case decided under Lord Ellenborough' Act of 1803) and R v. Goldsmith (1811) 3 Camp 73. Contrast R v. Wychereley (1838) 8 C & P 262. Baron Gurney directed a Jury of Matrons that a woman who had been convicted of murder would be “quick with child” and so was entitled to a stay of execution if she had conceived.

Williams , The Sanctity of Life and the Criminal Law, 1957 at 150–1 and Dickens supra note 17, 15–20.

Under early canon law the killing of an embryo informatus was punishable with a fine but the killing of an embryo formatus was punishable with death, Id.

If the fetus was aborted and died after its birth then this too could be murder, Coke, Institutes Vol 3, 50 (1628–44); Hawkins , A Treatise of the Pleas of the Crown, Vol 1, ch. 31 sect. 16 (1716). Although, Coke and Hawkins probably settled the law and it remains the law today, some authorities did not consider this to be homicide. For a discussion of the evolution of the law and its application today in this situation see, Tempkin, “Pre-Natal Injury, Homicide and the Draft Criminal Code,” [1986] CLJ 414.

The law is discussed in Atkinson, “Life, Birth, and Live Birth,” 20 LQR 134 (1904); Davies Seabourne , “Child-Killing in English Law” 1 MLR 203 and 269 (1937).

Id.

A number of American jurisdictions have returned to Bracton's rule. Courts have held that a defendant who killed a viable fetus in utero can be convicted of statutory vehicular homicide (Commonwealth v. Cass 467 NE 2d 1324 (1984), Massachusetts Supreme Judicial Court) or statutory homicide (State v. Home 319 SE 2d 203(1984), South Carolina Supreme Court) and, most recently, common law murder (Commonwealth v. Lawrence 404 Mass 378 (1989), Massachusetts Supreme Judicial Court). Most jurisdictions, however, retain the traditional rule and do not treat the unborn child as a person for the purposes of the criminal law. See, for example, Keeler v. Superior Court 470 P 2d 617 (1970) (Supreme Court of California—not common law murder) and State v. Amaro 448 A 2d 1257 (1982) (Supreme Court of Rhode Island-not vehicular homicide).

Vol 2, Book I, c. 23. (c.1290).

3 Co Inst. 50. Noonan supra note 17 at 233 misquotes Coke as stating “If a woman be quick with child…this [is] a great misprision and so murder.” (emphasis added).

Means supra note 16, at 381.

Hawkins , A Treatise of the Pleas of the Crown, Vol 2, Book 1, ch 31 sect 16 (1716); Hale , Pleas of the Crown, at 53 (1682); East , A Treatise on the Pleas of the Crown, Vol 1 at 227–230 (1803); Russell , A Treatise on Crimes and Misdemeanors, Vol 1, at 617–8 (1819).

Vol I p. 129 (1765).

Gavigan supra note 16; Keown , supra note 8, ch. 1. The Supreme Court in Roe v. Wade were sufficiently persuaded, inter alia, by Means' argument that Blackmun J. said “…it now appear[s] doubtful that abortion was ever firmly established as a common law crime even with respect to the destruction of a quick fetus.” 410 US 113,136. See now by way of contrast R v. Tait [1989] 3 All ER 682, 687, per Mustill LJ.

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).

Cited by Keown op cit at 6–10.

A precedent can be seen in Chitty's Criminal Law, Volume 3 at 798 (1802).

Helmholtz , Canon Law and the Law of England, Hambleton Press, London, 1987 at 167.

Id. at 159–60

43 Geo III c. 58.

The common law would have punished the performance of an abortion itself as the crime but only an act done with intent to procure an abortion if it amounted to an attempt to commit that crime.

Dickens op cit at 24–5; R v. Wilson (1856) Dears and Bell 127.

R v. Gaylor (1857) Dears and Bell 288; R v. Russell (1832) 1 Moo CC 356. Earlier cases are discussed by Keown op cit at 6–7. Some doubt still remained: R v. Wilson (1856) Dears and Bell 127.

Supra note 20. See also Gavigan op cit at 34–35.

9 Geo IV c. 31. section 13.

Id.

(1828) 1 Mood 216.

R v. Phillips (1811) 3 Camp 76.

Here, replacing section 2 of the 1803 Act.

24 & 25 Vict. Ch. 100.

See Dickens op cit at 36. The Criminal Attempts Act 1981 states that factual imposssibility is no defense (section 1 (2) and (3) as interpreted by the House of Lords in R v. Shivpuri [1987] 1 AC 1. See generally, Grubb, “The Criminal Attempts Act 1981” [1982] CLJ 24.) The woman might also be prosecuted as an accessory to another's crime or as a conspirator, R v. Sockett (1908) 24 TLR 893; R v. Whitchurch (1890) 24 QBD 420.

Tunkel , “Abortion: How early, how late, and how legal?” (1979) 2 BMJ 253; Wright , “The Legality of Abortion by Prostoglandin,” [1984] Crim LR 347; Wright , “Capable of Being Born Alive?” (1981) 131 NLJ 188; Tunkel , “Late Abortions and the Crime of Child Destruction: A Reply” [1985] Crim LR 133; Wright , “A Rejoinder” [1985] Crim LR 140.

Keown , “The Scope of the Offence of Child Destruction” 104 LQR 120 (1988).

Cited by Lord Darling in the House of Lords debate: 71 Parl Deb HL 617–8 (1928).

Skegg , Law, Ethics and Medicine, Oxford University Press, 1985 at 4–5.

See, for example, R v. Senior (1832) 1 Moo 346. The historical evidence is set out in Keown supra note 51 at 123–8.

Keown supra note 51 and Skegg op cit at 5.

Keown supra note 51 at 123–8.

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).

Emphasis added.

See article cited at note 50; See also Skegg op cit at 7–12 and passim Keown supra note 51.

[1988] 1 QB 135.

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.

For a discussion of the locus standi issue see, Grubb and Pearl , “Protecting the Life of the Unborn Child” 103 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.

Leading Counsel for C. was Mr Gerard Wright QC, the author of a number of the articles cited in note 50 supra.

See cases referred to by Atkinson op cit and Seabourne Davies op cit.

Supra at 151.

Section 5 (1) of the Abortion Act 1967 refers to the 1929 Act parenthetically as “protecting the life of the viable fetus.”

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).

For example, Keown, Abortion, Doctors and the Law: Some Aspects of the Legal Regulation of Abortion in England from 1803 to 1982, Cambridge University Press, 1988.

For example, Means, “The Law of New York Concerning Abortion and the Status of the Fetus, 1664–1968: A Case of Cessation of Constitutionality,” 14 NYLF 411 (1968). Concerns for maternal health could not be overwhelming lest it is difficult to see why the courts held that a pregnant woman could be guilty as an accessory to an abortionist's crime (R v. Sockett (1908) 24 TLR 893) or of conspiracy (R v. Whitchurch (1890) 24 QBD 420) unless one purpose of the law was to protect her from herself as well. But contrast the fact that a woman can only commit an offense under section 58 if she is pregnant. In both these cases the woman was not proven to be pregnant.

This, of course, is the essential underlying thesis of Roe v. Wade.

See the excellent discussion by Keown, supra note 68, ch. 7.

See, Hawkins, Mishap or Malpractice?, Oxford: Blackwells, 1985 ch. 1; Elliot , The Sociology of the Professions, London, 1972.

Now the Medical Act of 1983. For a discussion of the regulation of the medical profession by the GMC see Kennedy and Grubb , Medical Law: Text and Materials, London: Butterworths, 1989, ch. 5.

Loudon , Medical Care and the General Practitioner 1750–1850, Oxford, 1986.

It is little wonder that legislation on abortion and child destruction emerged when midwives of the Victorian era indulged in such malpractices as abortion, infanticide and baby selling; see Rose , The Massacre of the Innocents: Infanticide in Britain 1800–1939, London, 1989, especially ch. 10.

Supra note 68 at 161.

Proviso to section 1 (1).

Skegg , op cit at 12–19 considers this possibility.

Section 5 (1), Abortion Act 1967.

But not in Scotland, where the 1929 Act does not apply. Consequently, abortion of a viable fetus is lawful providing the terms of the Abortion Act 1967 are complied with. See, Norrie op cit and Report of the Committee on the Working of the Abortion Act (Cmnd 5579, 1974) chaired by Mrs Justice Lane (hereafter the “Lane Report”) at 198–200.

The term was used in the 1803 Act only in relation to the offense under section 1 dealing with an abortion after quickening. In the 1828 and 1837 Acts it was used in relation to abortions both before and after quickening. See Dickens op cit at 28.

Skegg op cit at 13 states that there was no English case prior to 1938 accepting this. Keown op cit, on the other hand, points out (at 52–59) that the legality of a therapeutic abortion had been accepted (i) in cases (R v. Collins [1898] 2 BMJ 59; R v. Wilhelm (1858) 17 Med Tim Gaz 658; R v. Bell [1929] 1 BMJ 1061); (ii) in counsels'opinion for the Royal College of Physicians; (iii) extra- judicially by judges and (iv) within the medical profession itself.

[1939] 1 KB 687 and [1938] 3 All ER 615. The latter report which is the verbatim account of the judge's summing up, differs markedly from the former report which was subsequently corrected by the judge for publication.

An account of the trial can be found in Seaborne Davies, “The Law of Abortion and Necessity” 2 MLR 126 (1938).

[1939] 1 KB 687, 691.

Id.

Id. at 692.

Id. at 693–4.

(1948) 1 BMJ 1008. Extracts from the summing up are set out in Williams , The Sanctity of Life and the Criminal Law, 1957 at 178.

[1958] Crim LR 469. Discussed by Havard, “Therapeutic Abortion” [1958] Crim LR 600.

Id.

The view has been expressed that such situations were covered by the common law. See, Denning (1956) 2 BMJ 821 (mother infected with rubella during pregnancy) and again Lord Denning speaking in the House of Lords in the debate on Lord Silkin's Abortion Bill in 1965; 270 Parl Deb HL 1183 (mother who had taken the tetrogenic drug thalidomide during pregnancy).

See also Williams op cit at 173–6.

See discussion in Williams op cit at 172–3 where he observes “[w]hether a court would regard it as legal must remain a matter of speculation.”

[1939] 1 KB 687, 695.

Id. at 695. The words following “high standing” do not appear in the King's Bench Reports but are reported in the All England Law Report version at [1938] 3 All ER 615, 621.

Id at 689–90.

See the discussion in Dickens op cit at 41–2, 44–5, 51.

Id. at 51.

The working of the Abortion Act is considered in depth by the Government created ‘Lane Committee's’ three volume Report of 1974 supra note 80.

The Act came into force on April 27, 1968. For the background to the Act see ‘Lane Committee’ Report supra note 80 at paras 16–28. See also Keown op cit ch. 4.

For a discussion of 7 of the Bills introduced into Parliament between 1969 and 1979 see Keown op cit ch. 6.

Section 5 (2) provides: “For the purposes of the law relating to abortion, anything done with intent to procure the miscarriage of a woman is unlawfully done unless authorized by section 1 of this Act.”

Section 5 (1).

Section 1 (1).

Section 1 (3).

Section 2.

Section 1 (1) and (2).

It may be lawful to perform an abortion on an incompetent adult woman if such a procedure is in her best interests even though she is unable to give a valid consent, see T v. T [1988] 1 All ER 613 (abortion and sterilization) and F v. West Berkshire AHA [1989] 2 All ER 545 (sterilization). See Grubb and Pearl , “Sterilization and the Courts,” [1987] CLJ 439 and Grubb , “Medical Law” [1988] All England Review 200, 206–11.

I do not consider ethical requirements which would be enforced by the General Medical Council through its statutory jurisdiction to discipline registered medical practitioners guilty of “serious professional misconduct”: section 36 Medical Act 1983.

Section 1 (1). In Royal College of Nursing of the United Kingdom v. DHSS [1981] AC 800, a majority of the House of Lords held that a termination of pregnancy could be a team effort. The court held that a termination using prostaglandin to induce a miscarriage was lawful providing three conditions were satisfied (i) the treatment was prescribed by a registered medical practitioner; (ii) the registered medical practitioner remained in charge; (iii) the procedure was carried out under his direction by qualified nursing staff and that this was in accordance with accepted medical practice.

Id.

Section 1 (3).

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).

Section 1 (4).

Schedule 1 to the 1968 Regulations (as amended).

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.

On the other hand, it seems that if a ground does exist in fact but the doctor does not believe that it does, then the abortion is illegal. See, Williams , Textbook of Criminal Law (2nd ed 1983) at 299 note 2.

For example, David Alton's Abortion (Amendment) Bill of 1987 (HC Bill No 22); Ann Widdecombe and David Alton's Abortion (Amendment) Bill of 1988 (HC Bill No 20). Curiously, the other well known Bill of the last decade, John Corrie's Bill of 1979, would have retained the risk to existing children but restricted it (as with the risk to the mother) to substantial risk of serious injury to their physical or mental health, see clause 1 (b).

The Abortion (Amendment) Bill of 1988 would have redefined this ground to cover fetuses which if born “would suffer from severe physical or mental disability…” (clause 1 (2) (b)).

Textbook of Criminal Law (2nd ed 1983) at 298.

See ‘Lane Committee’ op cit para 38 for the figures in the years 1968–1971.

Ormrod , “A Lawyer's Look at Medical Ethics” 46 Med-Leg J 18, 21–2 (1978).

Royal College of Nursing of the United Kingdon v. DHSS [1981] AC 800, 803 (CA).

World Health Organization, Basic Documents (26th ed 1976) at 1.

See, Morgan , “Fetal Identification, Abortion and the Law” 18 Family Law 355 (1988).

See ‘Lane Committee’ op cit paras 94–159.

Supra note 121 at 299.

Id. 299–30.

[1974] 1 All ER 376.

[1979] 1 QB 226. See, Kennedy , “Husband Denied A Say in Abortion Decision” 42 MLR 324 (1979).

Id. at 281.

Id. at 282.

[1988] 1 QB 135.

Cahill , “‘Abortion Pill’ RU 486: Ethics, Rhetoric and Social Practice” (1987) 17 Hastings Center Report (vol 5) 5.

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).

See Price, “Selective Reduction and Feticide: The Parameters of Abortion” [1988] Crim LR 199. At p. 208 Price states “Selective reduction…is nothing more than a euphemism for selective abortion. Lingusitic juggling cannot alter the nature of the act.”

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.

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).

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.

(1988) 44DLR(4th) 385.

[1980] 3 EHRR 408.

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).

Supra note 140 at 413.

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).