Abortion: 50 years on

On 27th October 1967, the Abortion Act received royal assent. 50 years on, I reflect on the Abortion Act by discussing what exactly is allowed under that particular piece of legislation. I do not intend to address the pros and cons of abortion in this particular article. It is my intention to address that in later publications in order to prevent them becoming too long in length. Although, I will acknowledge that there are of course concerns within: human rights and religion in particular, and to an extent, social and economic concerns.

It is wrong to assume that this piece of legislation legalised abortion in every situation. In fact, it is STILL a crime under the Offences Against the Person Act 1861, which amends a previous provision found in the 1803 Act of the same name. Prior to being a criminal offence, abortion actually fell within the jurisdiction of the church. Whilst there are cases that relate to abortion taking place at a late stage within pregnancy (some 40 weeks into pregnancy), the point is illustrated as in the past five years, two defendants have found themselves jailed for taking abortion pills.

The first question that must be answered from this correction is this: What exactly did the Abortion Act 1967 legalise?

The Act essentially gave doctors the ability to perform abortions lawfully on the basis that certain conditions were met. It should be noted that it was in fact the doctors who were given the responsibility of deciding if a woman met the conditions laid down by the Act. This is a sensible position to adopt - there are none better to make a medical decision than those who have trained for many years. Also important to note, is that the Abortion Act was passed in response to policy arguments - namely that unregulated abortions contributed to a number of deaths, and secondly there being a thalidomide disaster which put many pregnant mothers and their unborn children being put at risk. It is without doubt that the Act has achieved its objective of eliminating deaths from illegal abortion at the relief of millions of women who faced an unwanted pregnancy. This is so much so, that there is a piece on the Guardian website written by Zoe Williams calling for the abolition of the Act. She argues that it should be treated much like any other healthcare measure, and can be read here.

Turning to the conditions that have to be satisfied before a woman is able to obtain an abortion. The relevant section is; Section 1 Abortion Act.

The first requirement that has to be satisfied is that there is a need for two registered medical practitioners to genuinely reach the decision, and not to reach this in 'bad faith' (i.e. Fraud/Bribery). It is interesting to note that there is in fact an exception to the requirement that two registered medical practitioners are needed to make a decision. This is where a single registered medical practitioner believes that the termination is "immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman" under section 1(4).

Within section 1(1), it is plain to see that there are actually four different scenarios which can be satisfied to justify an abortion in law. As is apparent from these scenarios, the Act is primarily concerned with dangers to the pregnant woman as the ground for an abortion to take place. They are:

  • The pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or

  • The termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or

  • The continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or

  • There is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.

Finally, such a procedure is to take place in either an NHS Hospital or one that the Secretary of State has given power to carry out an abortion, which is made clear from section 1(3). This clearly addresses one of the policy concerns that led to the enactment of the legislation - to prevent unregulated abortions and to prevent fatalities.

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