On Wednesday, at the end of a debate in Westminster Hall initiated by David Burrowes, Attorney-General Dominic Grieve was given the opportunity to comment on the Crown Prosecution Service’s decision not to prosecute the two doctors alleged to have contravened the Abortion Act 1967 in the matter of gender-selective abortion.
The Attorney said that the public impression that the case was about medical practitioners offering abortion on the basis of the sex of the child was erroneous. Moreover, the DPP had not made the initial decision not to prosecute – though he had been consulted – and he himself had not been consulted at all prior to the decision not to prosecute. He was, however, satisfied that the decision had been taken properly and conscientiously. It was not his role as Attorney to second-guess the decisions of independent prosecutors; but he was entirely satisfied that the decision had been taken properly and conscientiously.
By way of explanation, he pointed out that UK abortion law
“… is not framed in terms of prohibiting gender-specific abortion or indeed listing any other forms of unlawful abortion”. It works, or was intended to work by Parliament, by providing for abortions to be performed safely, by qualified medical practitioners, when those practitioners judge it to be in the medical interests of the patient and where that is the course that the patient herself agrees is right. Two medical practitioners must on each occasion have formed a view, in good faith, that the health risks of continuing with a pregnancy outweigh those of termination. That is our guarantee, as provided by Parliament, that we have a system of safe and lawful abortion provided by the 1967 Act”.
Moreover, the question at issue was not about proving whether or not gender-specific abortion was being offered on demand but about whether or not the doctors had done what the law required: to reach an opinion in good faith about the consequences for the patient of continuing with or terminating a pregnancy. Said the Attorney:
“I appreciate that abortion gives rise to strong views based on ethical and philosophical differences, and I have no doubt that it will continue to be the subject of much public debate, but the issue for the prosecutor is the law as it stands”.
The CPS had concluded “with some difficulty” that there was just enough evidence available in the cases to bring the good faith of the doctors into issue. However, the evidence was not strong in either case and the prospects of conviction would not, in the DPP’s judgment, have been high on the facts as they appeared. Moreover, the decision was that a prosecution would not pass the public interest threshold.
Because the law made the difference between lawful and unlawful abortion subject to a medical test, doctors had to be able to carry out that test case-by-case, according to proper medical standards of care, skill and judgment and to a proper professional standard: the test of “good faith” in the 1967 Act.
The present cases were not
“… extreme ones in which the doctors behaved as no reasonable practitioner would behave. Complicating factors were raised by both the patients and the doctors, who subsequently had to take the decisions. There were … no detailed professional rules or step-by-step guidelines telling doctors how to take such decisions; the matter was left to general professional standards and ethics. The CPS, therefore, had no detailed consensus to help it to evaluate the matter.”
The Attorney doubted whether it was “right or fair” to ask a jury to decide a question of medical standards and ethics absent a detailed professional consensus – which was why the CPS had concluded that it would be contrary to the public interest to proceed. As to the pre-signing of forms, he understood that that practice had now been stopped and that clear guidance had been issued as to its undesirability.
The Department of Health had accepted that the balance needed to be redressed and that the law enforcement agencies needed clearer and more specific guidance on how to distinguish between desirable and undesirable professional practice in making and recording decisions on the termination of pregnancy – a decision that he welcomed.
It was quite clear from the 1967 Act that gender selection alone was not grounds for the termination of a pregnancy. The debate had, however, highlighted policy issues about how the question of gender selection might carry some weight in respect of, in particular, the impact on a woman’s mental health of continuing with a pregnancy. In conclusion, he looked forward to guidance from the General Medical Council.
One mildly-surprising aspect of this case for non-specialists (like us) is that such guidelines as exist appear to emanate from the British Medical Association rather than from the GMC. The BMA, however worthy it may be, is a professional association/trades union rather than an independent regulatory body; and one wonders why a matter as sensitive as the operation of the 1967 Act had not already attracted the GMC’s attention.
The other is why, given the drafting of the Act, anyone should have been surprised. Over at An Exercise in the Fundamentals of Orthodoxy Peter Ould poses the following scenario:
“Lady: I’d like you to tell me the race of my baby.
GP: I’m sorry? Why do you want to know that?
L: Well, I slept with quite a few blokes around the time I conceived, and I’m happy to have this baby as long as it’s not black. I couldn’t cope with that”
and comments: “Now, would anyone like to tell me why an abortion on the basis of sex is OK but not on the basis of race? No, didn’t think so…”
Well, we can certainly think of circumstances in which abortion on the basis of race might be legal: how about this?
A white woman with three small children is going through a very difficult patch with her husband, has a fling with an Afro-Caribbean man and gets pregnant. Her husband happens to be a white racist who supports various extremist groups. She goes to her GP and says that she is terrified of giving birth to a mixed-race child because it will wreck her marriage and that the prospect is seriously affecting her mental health.
So what is her doctor to do: just say “No”? Don’t think so…