• Iona McNeill

Is the 1967 Abortion Act Discriminatory and in Need of Reforming?

A case heard in the United Kingdom’s High Court on 6 July 2021 has been referred to as “landmark” for challenging the 1967 Abortion Act. Appellants Heidi Crowter and Márie Lea-Wilson have brought a case against the Department of Health and Social Care with the intention of changing existing law.


Context of the Case


Crowter is a 26-year-old woman from Coventry with Down’s Syndrome who campaigns to bring to light the inequality and discrimination those with Down’s Syndrome face. Lea-Wilson was offered an abortion when she was 35 weeks pregnant with her son Aidan who was diagnosed with Down’s Syndrome. Her motivations for bringing this case against the Department of Health and Social Care stem from the disapproval and lack of support from hospital staff that she experienced when she chose not to abort Aidan.


At present, the Abortion Act legislates that an abortion must (in most cases) take place before the 24-week limit (i.e. no more than 24 weeks since conception) has been exceeded. However, the Act also contains exceptions which permit consideration of an abortion beyond this limit if one or more of the following extenuating circumstances apply:

  • The pregnancy has not exceeded its 24th week and that the continuation 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

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

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

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

This final provision permits foetuses who have been diagnosed in utero with Down’s Syndrome to be aborted up to the point of birth as the condition is considered to be an “abnormality”.


It is this mitigating circumstance that the appellants are fighting to overturn with Crowter stating, “I find it extremely offensive that a law doesn’t respect my life”. She has expressed her desire to “change the law” and thus “challenge people’s perception of Down’s Syndrome” as she believes that the law as it currently stands encourages the misconception that Down’s Syndrome is a debilitating and restrictive disability.


An Issue of Ethics


Crowter and Lea-Wilson are fighting to remove the final provision from the Act. If successful, this would result in the 24-week limitation for a legal abortion being applied even when a foetus is diagnosed with “physical or mental abnormalities” that would result in the child being considered “seriously handicapped” after birth. If the law were to be changed, it is likely that an abortion after the 24-week limit would only be allowed should the pregnancy pose a risk to the mother’s health.


Lea-Wilson emphasised that their case is not concerned with the ethics of abortion; rather their case aims to “remov[e] a specific instance of inequality of the law”. Crowter supports her in this assertion, classifying the current Abortion Act as “downright discrimination”, alluding to the implication of inequality which is innate to the Act’s sanctioning of abortions beyond the normal limit should the foetus be diagnosed with an “abnormality”.


Crowter’s argument that the Act in its current state is discriminatory is because it implies that the lives of people with Down’s Syndrome are less valuable than others; she claims that the law made her feel “unloved and unwanted”. Speaking outside the High Court, Lea-Wilson expressed a similar sentiment, voicing that the case “is about equality and that everyone in the whole world deserves to be treated equally, regardless of disability, gender, race, religion”. She articulated her hope that their challenge would be successful, so that they can “start to pave a path for true equality and acceptance of people with disabilities”. Certainly, the clause which allows the abortion of a foetus diagnosed with an “abnormality” past the 24-week gestation point prohibits the promotion of inclusion and equality for those born with disabilities.


Jason Coppel QC, counsel for the appellants, spoke on behalf of Lea-Wilson, declaring that that:

“the impression conveyed that by going ahead with the pregnancy she would be going against medical advice, the negativity about DS and the fear engendered about having a child with DS all conveyed the message to her that a life with DS was of no value”.

Lea-Wilson has explained that her motivation for the case is to ensure that people see the value of those with Down’s Syndrome and that the “difference” between individuals “makes up the rich tapestry of human life”. This idea is central to the appellants' case and they have therefore argued that the law is discriminatory and opposes Article 8(1) of the European Convention on Human Rights which rules that “everyone has the right to respect for his private and family life”.


Coppel QC’s argued that the Act “perpetuates and reinforces negative cultural stereotypes to the detriment of people with disabilities”. He supported this claim by detailing that Crowter “has been the subject of abuse because of her disability and believes that the existence of a law allowing abortion up to birth for babies with Down’s Syndrome is a contributory cultural cause of this type of abuse”. The appellants argue that the current state of the Act can be viewed as diminishing the value of people with Down’s Syndrome and hope that changes to the Act would encourage equal treatment for those with Down’s Syndrome.

Reactions

The case has been greeted with relief from many, including the Down’s Syndrome Association (DSA) who stated that the 1967 Abortion Act needs to be properly and fully reviewed in light of the advances in medical science and the accessibility of testing options now available. Their argument that “the law must reflect the medical science available” refers to the advancements which have made it possible to screen for Down’s Syndrome before the 24-week limit. Undoubtedly medical science and technology has progressed since the Act was written and legalised in 1967 and so it follows that the Act ought to be scrutinised and amended.

The figures for abortion statistics in 2020 from the Department of Health and Social Care reveal that 3,083 abortions were performed under Ground E, which allows for the termination of a pregnancy of a foetus with a detected “abnormality”. The same segment also mentions that chromosomal anomalies totalled 27 percent of the medical conditions cited as the reason for an abortion. In a 2016 article, the BBC reported that in the UK 90 percent of people who are told that their foetus has Down’s Syndrome opt for abortion. This is a pattern that is mimicked in many countries over Europe – as reported on CBS, Iceland has almost obliterated the syndrome, with an average of only one or two babies born with the disability annually. The medical screening which allows pregnant people to make informed choices about aborting foetuses with a disability is steadily leading to an increase in the eradication of such syndromes. In turn, this impacts the acceptance and promotion of a diverse society.

Counter Arguments

The UK Government has opposed this case by claiming that the Act does not perpetuate “negative stereotyping” and affirming that there “is a broad range of measures in domestic law which are aimed at disability discrimination and advancing equality of opportunity”. Their stance is supported by a charitable organisation, the British Pregnancy Advisory Service, which has warned against criticism of pregnant people who may decide to terminate based on the diagnosis of an in utero disability. Furthering their point, they believe that “there is no contradiction between doing all we can to ensure the rights of people with disabilities while protecting women’s ability to make their own decisions in pregnancy’’.


Moreover, Britain does possess the medical technology to be able to screen for such disabilities earlier in pregnancies. However, should medical equipment fail, the restrictions placed on abortion access may result in a child with disabilities being born to a family who may not have the economical, emotional or practical capabilities to provide them with the care they deserve.


Indeed, this case has brought to the forefront not only a complex legal issue but also an ethical quandary. English and Welsh law prides itself on the accessibility of abortions and introducing limitations for abortions on grounds of disabilities could be interpreted as infringing on the autonomy of pregnant people. Conversely, the Act in its present form does support the suppression of disabilities and amending the limit – or lack thereof – could promote a more impartial approach to abortion.

Status

The case was listed for two days with judgement reserved. Ultimately the High Court faces a difficult decision as this case brings to the forefront a two-fold problem. Firstly, in bringing this case against the Department of Health and Social Care, the claimants have instigated a much-needed conversation about the reconsideration of the Abortion Act in the face of modern technology where a diagnosis of Downs Syndrome can be made in advance of the 24-week limit. However, the High Court must also consider the implications of such a change to the law on the autonomy of pregnant women as not everyone may be in a position to want to continue a pregnancy should their foetus be diagnosed with a disability such as Down's Syndrome. Should the appellants win the case, the law will be revised.