Essay question

“The statutory requirement that two registered medical practitioners must form the opinion in good faith that at least one of the statutory criteria to justify an abortion is satisfied is anachronistic and in urgent need of reform.”

Critically consider this statement.

Outline answer

The question asks you to focus on the statutory criteria that justify abortion and the requirement that one of these must be satisfied and that in doing so this opinion must be affirmed by two registered medical practitioners.

The starting point is the statutory defences to abortion under section 1 of the Abortion Act 1967. Section 1(1)(a) is the commonest ground that is used for abortion and is often regarded as the “social ground.” Where there is risk of injury to physical and mental health of the pregnant woman or any existing children in the family, this criterion is wide and can therefore be satisfied relatively easily. The limiting factor is that the pregnancy must not have exceeded its 24^th week. Section 1(1)(b) provides a defence for doctors where the abortion is a necessity to avoid grave or permanent injury to the physical or mental health of the woman. Section 1(1)(c) provides a defence where the pregnancy causes risk to the life to the pregnant woman greater than if the pregnancy was terminated. Section 1(1)(d) provides a defence where there is a substantial risk that if the child was born it would suffer from such physical or mental abnormalities such as to be seriously handicapped. The latter three provisions have no time limit. However, they are far less commonly used in practice and although they may have the advantage of no time limit, it is well recognised that an abortion carried out in the later stages of pregnancy can have considerable risks for the woman. In reality, therefore, if an abortion has to be undertaken, it is better to do so in the earlier stages of pregnancy and the requirements of section 1(1)(a) are easier to satisfy than those of the other sections.

Assuming that section 1(1)(a) is the provision to be relied upon the question that arises is whether or not the requirement for two doctors to confirm the decision is unduly burdensome and anachronistic. To some extent your answer will depend upon how strongly you feel that abortion should be allowed. There is a sharp divide between those who support women’s rights to choose abortion compared with those who oppose it on the basis of foetal rights to life. The competing arguments are the moral status of the foetus versus the pregnant woman’s right to terminate the pregnancy on the basis of her autonomous choice. Feminist philosophers often assert that abortion impacts more heavily on a pregnant woman than it could ever impact upon a man, and that a woman has no moral obligation or duty to carry a foetus. Even if pregnancy has occurred following consensual sex, why should it be that the man gets off “scot- free” whereas the woman carries the burden of pregnancy and birth? You might wish to discuss Judith Thomson’s famous violinist analogy here and evaluate her arguments and the extent to which the analogy is persuasive. These arguments should be balanced by foetal rights arguments prior to coming to a conclusion. 

If you conclude that women’s reproductive rights are the dominant consideration then it could be argued that the requirement for two medical practitioners is unduly onerous and that a woman’s autonomous choice endorsed within the circumscription of the statutory provisions of section 1(1)(a) should be sufficient for abortion to take place. Remember that the statutory provision came into effect in the 1960s and at that time the legislation was revolutionary and progressive. However, is the legislation still fit for purpose given contemporary liberalism, more sexual equality and cultural change?

You may slant your conclusion in either direction. However, your conclusions should follow reasoned arguments that reveal your understanding of the complex and nuanced arguments on either side of the debate.