The use of the Abortion Act in relation to the abortion pill

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There is a long standing debate surrounding the ethics of both abortion and assisted conception. The moral reprehensibility of both, although touched on, are outside the ambit of this essay. The purpose of this essay is to assess the current law. Under S.1 (a) of the Abortion Act 1967 an abortion can be carried out up to 24 weeks on the grounds that carrying the pregnancy to term would damage the physical or mental health of the woman. As mifepristone can only by used up to 8 weeks of pregnancy (Grubb:1961:669), and deformities or disabilities in the foetus cannot be recognised at such an early stage, it is S.1 (a) of the Act that the use of mifepristone may be authorized. Thus, the essay is focused on S.1 (a) and whether the full application of the section in relation to the use of mifepristone is overprotective. Throughout the essay, it is presumed that a foetus under 24 weeks is not viable and that whilst it is accepted that a foetus does have some moral status it is not exactly the same as a person (Dworking:as cited in Jackson:2010:662) thus the ethical debate around the life and value of a foetus shall be left untouched. I also accept that assisted conception techniques are a valid medical procedure that should carry on. The current law on assisted conception is governed by the HFEA 1990 under which clinics are authorized to carry out assisted conception. It is S.13 (5) of the act which protects the welfare of future children, the discussion of whether the current law of assisted conception is under protective of future children will focus on this section and its practical use.

The Abortion Act is rooted in a paternalistic attitude towards women, this was evidently an advantageous political strategy in 1967 (Jackson:2002:471),however, it’s now increasingly recognized that ‘to fail to respect the autonomy of competent people is to inflict harm on them that is just as morally unacceptable as direct harm’(Doyal:1998:1000). This increasing recognition has seen judgements clarifying and broadening the scope of a patient’s right to make decisions about their medical treatment. It can be argued that it is disingenuous to allow patients to refuse life saving treatment on the grounds of respecting their autonomy whilst not allowing women to choose to terminate a pregnancy. As the decision of the Court of Appeal in St George’s Healthcare NHS Trust v S recognises, a woman’s pregnancy does not remove her ability to decide whether to undergo medical treatment (At 957). The judgement suggests that the courts may be moving further towards a reluctance to impose the full force of the Abortion Act upon women who are under 24 weeks pregnant, however as abortion is such a volatile topic, it’s not for the courts to propose reform, it is for Parliament. Although St George’s suggests that the law on abortion interferes with medical law’s focus on autonomy and is overprotective, the courts are unable and unwilling to reform the law of abortion.

Alongside the paternalistic attitude of the Abortion Act, the grounds given are ambiguous, unlike many other countries; reasons such as rape or incest are not specified. This ambiguity was undoubtedly deliberate, presumably to give the courts some room for discretion. As at the time of passing the Act it was feared that a definitive list of circumstances in which abortion is legitimate may give women the impression that in certain instances abortion would be an entitlement (Keown:1988:90). Arguably, in certain circumstances it would be morally acceptable for a woman to have a right to termination, such as pregnancies resulting from rape. In this sense, the requirement of the full protection of the Abortion Act is over protective, as even many who are opposed to Abortion have few ethical problems with allowing such a woman to terminate her pregnancy in the first eight weeks using mifepristone.

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Although the requirement of S.1 (a) for terminations using mifepristone may seem overprotective, it can be argued that it is in fact the only middle ground that can be reached. In comparison to Ireland the Abortion Act can be seen as liberal alongside respecting women’s reproductive autonomy, compared to its illegality in Ireland. There are clear arguments as to why the Abortion Act is overprotective in the authorization of mifepristone, however, when compared with other jurisdictions (Michaelides:2000:5), many of which have similar legislation, it can be argued that the Abortion Act is the only feasible middle way between those ...

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