'Morally and legally abortion should be a woman's right rather than a medical issue'. Discuss.

Sample answer

Abortion is a crime by virtue of section 58 and 59 of the Offences Against the Persons Act 1861. In effect, this means that doctors who are involved in abortions could be guilty of this crime. However, the Abortion Act 1967 provides defences for doctors that can be relied upon provided that an abortion is carried out in compliance with the requirements of the Act. Section 1 of the Abortion Act identifies 4 grounds by which an abortion can be carried out. These grounds include the ‘social ground’ (section 1(1)(a)). This ground is the most commonly relied upon and can permit an abortion to be carried out up to 24 weeks of pregnancy if that pregnancy carries risk of injury to the physical or mental health of the pregnant woman or any existing children of her family. Nevertheless, in all situations, except in an emergency, two doctors must form the opinion in good faith that at least one of the statutory criteria can be satisfied. Doctors and other health professionals cannot be compelled to carry out or be involved in an abortion – they have a statutory right to conscientiously object although this applies to active involvement rather than typing letters of referral (Janaway v. Salford AHA). In Doogan v. Greater Glasgow and Clyde Health Board [2013] the Scottish Court of Session held that the conscientious objection clause extended to senior midwives responsible for the supervision and support of other staff involved with abortion and patient care (although this case was overturned on appeal).

This means that in English jurisdiction women do not have a statutory right to terminate a pregnancy on the basis of their autonomous choice. Two doctors need to be satisfied that the abortion falls within one of the section 1 provisions. In the event that conscientious objection is relied upon doctors must refer the woman to another doctor. However, in certain situations this might not be easy to arrange, particularly in rural areas. Even in emergency situations at least one doctor must be satisfied that the grounds have been met (section 1(4)). Women cannot demand an abortion which a doctor feels is unwarranted and does not fall within the terms of the Act.

People who support women’s right to choose often do so on the basis of women’s rights to reproductive autonomy, or self-determined choice. Ronald Dworkin and Emily Jackson are strong proponents of reproductive autonomy. Since women are the ones who are most likely to be affected by a pregnancy in comparison to a man feminist philosophers often assert that women have no moral obligations or duty to carry a foetus. On the other hand the unborn foetus can be considered to represent life at its most vulnerable and therefore there is an imperative for legal and moral protection. Foetal life represents potential humanity at its earliest and therefore ought not to be terminated (murdered?) at the whim of the woman who carries the pregnancy and all the more particularly as pregnancy advances. The latter perspective concurs with the gradualist theory of pregnancy where more respect is given to foetal life in accordance with greater gestational age and particularly at the time at which organised electrical activity in the brain can be demonstrated compared with foetuses that do not (Boonin and Marquis).

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This is a reasonable answer in terms of statements of the law. Much more consideration of reproductive autonomy would have been helpful alongside some consideration of human rights (of the woman, the potential rights of the foetus and perhaps to compare and contrast with potential rights of the would-be father). Some consideration could have been given to the role of doctors as gatekeepers and the principle of law that the court will not compel a doctor to act against her clinical judgement. Greater consideration of the tensions with the conscientious objection clause could have been given. 

Extra marks could have been obtained by relevant comparisons being drawn with other jurisdictions where women have a right to choose in the earlier gestational stages of pregnancy. For example, the key decision of Roe v Wade (United States) which gave women a constitutional right to abortion carried out in the first trimester. However, the practicalities are that in certain states termination of pregnancy is very difficult to access in any event. In Sweden women have a right to a termination up until 18 weeks of pregnancy.

Remember that a strong conclusion, particularly with well thought through recommendations, tends to attract marks.