Abstract
In England, before the Abortion Act 1967, few reputable doctors dared to terminate a pregnancy for fear of being prosecuted and struck off, so most abortions took place in the shadows and in seedy and often insanitary conditions. However, in the landmark case of R v Bourne [1938] 3 All ER 615, Mr Alec Bourne found himself presented with a shocking case. A traumatised 14-year-old girl had become pregnant after being raped by five soldiers. Bourne, who was a respected and eminent gynaecologist, alerted the police of his intention to operate to end her pregnancy. For doing this he was charged in the criminal courts with the serious offence of conducting an illegal abortion. However, Mr Justice Macnaghten advised the jury: “If the doctor is of the opinion, on reasonable grounds and with adequate knowledge, that the probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck, the jury are entitled to take the view that the doctor is operating for the purpose of preserving the life of the mother.”
The door had opened a little way, but few were brave enough to pass through it save in the most extreme situations. But perhaps the police began to take less interest as it is believed that several hundred thousand abortions were performed each year with relatively few ending up in the criminal courts. But there was always the risk and fear of discovery. Described as “back street abortions”, they took place in the shadows, frequently performed in unpleasant conditions by poorly trained people. A desperate woman might regard herself as fortunate to have a “struck-off” or immigrant doctor doing it rather than some outright quack or a woman with a long knitting needle. It was when the procedure went badly wrong that most cases surfaced, often as a result of emergency admissions to hospital with infection, haemorrhage or damage to the uterus. Some women died in consequence, while others were rendered permanently infertile.
The 1967 Act (which was a private member's bill backed by government with a free vote) changed the situation fundamentally in England, Scotland and Wales (but did not extend to Northern Ireland). Perhaps it was expected that with better and more widely available contraception fewer terminations would be sought. But if this was the hope it was soon dashed when the Act came into effect in April 1968 and the National Health Service (NHS) provided terminations without charge if two doctors certified it was appropriate for one of the reasons listed in the Act. Originally termination was permitted up to 28 weeks’ gestation but as neonatal care improved with better chances of survival for premature babies it was later reduced to 24 weeks and in practice it is rare for a termination to be performed at such a late stage. However, in Northern Ireland, the 1967 Act did not apply and abortion there remained illegal unless the doctor was protected by the ruling in R v Bourne, and could demonstrate he was acting “only to save the life of the mother” or “if continuing the pregnancy would result in the pregnant woman becoming a “physical or mental wreck”. However, some three years ago, and almost by default, sections 58 and 59 of the Offences Against the Person Act 1861, which make abortion illegal, were repealed, and abortion was decriminalised: desperate women no longer needed to travel outside Northern Ireland to have their pregnancies terminated in other parts of the UK.
Prior to the case of Roe v Wade (1973) the situation in the USA was not dissimilar to that in the UK before the 1967 Act came into force in April 1968, though it would vary from state to state. However, following the selection of judges by Donald Trump's defeated Republican administration, the ethos of the Supreme Court has changed. It has overturned the 1973 decision that prevents individual states from banning abortion, quite possibly against the wishes of the majority of women, with shocking potential consequences for many of the poorest in society in certain states. Viewed from London, it seems strange that a decision governing a woman's rights to have sovereignty over her own body should be so obviously politically driven.
Already, some 22 Republican-held states, apparently anticipating this verdict, have gleefully passed legislation that will ban or severely restrict abortion, thus attempting to turn the clock back fifty years for women who for whatever reason will find it difficult to travel to a state with more liberal attitudes where abortion is lawful and safe. Within the US, the key areas for this are found on the west and east coasts and in a handful of states including Minnesota, Kansas, Illinois, Colorado and New Mexico.
As always, those who will be hit the hardest by a ban on abortion will be teenage girls or poor women at the bottom of the socio-economic ladder; there are fears they may be prevented from ordering and receiving abortion pills by mail order and or humiliated or punished in some way if this is discovered. Will it be a punishable offence for someone to help a woman to procure a termination where it is lawful? Or to help her to travel where the procedure is safe, legal and private? Previous attempts by some states to legislate to block such moves have failed. But what of the future?
We may wish for all babies to be conceived within a loving relationship and born healthy and at term into a comfortable, safe home. Sadly, this is not the situation for many girls and women who seek a termination. Few will do this lightly or without a measure of deep regret and they need protection from bullying and opprobrium heaped on them by those with opposing views who stand around wielding banners, loudly declaring their righteous indignation. Accordingly, as viewed from London, the overturning of the decision in Roe v Wade in June 2022 marks a depressing and backward step that we must hope will not lead to thousands of furtive and botched abortions for desperate women. And is it not curious that the vocal “right to life” lobby is said to include many people who support “the right to bear arms” from the age of 18? The right to bear arms seems to include in many states the right to buy and own any number and type of lethal weapon with unlimited ammunition with only the most rudimentary (if any) background checks carried out. But guns kill – yes people pull the trigger but it is the gun that fires the shot – so what about the lost lives of those thousands of people each year who are killed by guns in the USA – including school children and their teachers? A recent primary school killer was just 18. Deemed too young to legally buy a glass of wine – but not too young to buy an arsenal of semi-automatic weapons and more ammunition than a regular soldier would take with him into battle.
It is estimated that there are more guns than people in the USA and thousands of people are maimed or killed by them each year. But where are the “pro-lifers” with their banners? Are they to be found protesting outside the American Rifle Association or gun shops or armaments manufacturers? Are they busy lobbying those mainly Republican senators who support the dangerous status quo?