Pregnancy Termination: Physical or Mental Disabilities
25 November 2022
The Court of Appeal considered a refusal by the Divisional Court to judicially review Section 1(1)(d) of the Abortion Act 1967 which permitted a pregnancy to be terminated at any stage if the child to be born would suffer from such physical or mental abnormalities as to be seriously handicapped. The appellants, who each had Downs Syndrome, contended that such legislation perpetuated and reinforced negative cultural stereotypes about people with disabilities by sending a message that their lives were less valuable: Crowter v SSHSC judgment (judiciary.uk) Underhill LJ VP, Thirlwall, Peter Jackson LJJ
They argued that their rights under Arts 8[1] and 14[2] of the European Convention on Human Rights were breached and that the court should accordingly make a declaration of incompatibility under section 4 of the Human Rights Act 1998. Their arguments applied in principle to all those born with serious handicaps.
Section 1(1) of the 1967 Act in its current form was the result of amendments introduced by section 37 of the Human Fertilisation and Embryology Act 1990 when Parliament decided to lower the limit within which abortion generally was permitted from 28 to 24 weeks but to remove it for abortions on grounds of serious handicap.
In Human Rights Commission for Judicial Review (Northern Ireland : Abortion) [2018] UKSC 27 the issues were different from those in the present case as they were concerned with the Art 8 rights of pregnant women and not with the rights of those born with serious disabilities but a passage in the judgment of Lady Hale was important not only because it confirmed that the unborn did not have Convention rights but also because it recognised that in this sensitive area the law was concerned with striking a balance between competing interests:
“… the community undoubtedly does have a moral interest in protecting the life, health and welfare of the unborn – it is that interest which underlies many areas of the law, including the regulation of assisted reproduction, of midwifery and of the termination of pregnancy. And pregnant women are undoubtedly rights-holders under both the Convention and domestic law with autonomy as well as health and welfare rights. The question, therefore, is how the balance is to be struck between the two.”
The Vice President accepted that the appellants, and no doubt many other seriously disabled people, genuinely perceived that section 1(1)(d) sent the message that the lives of those who were in fact born with serious handicap were of lesser value. But that was not the only possible perspective. Other drew a clear line at the moment of birth and denied that permitting the abortion of a foetus with a serious disability implied anything about the value the value of the lives of the living disabled. That point was made explicitly, and with evident sincerity, by those promoting and defending section 1(1)(d) in the Parliamentary debates.
His Lordship did not belief in those circumstances that the enactment could be said to constitute an interference by the state with the private lives of the appellants. Their perception, however, genuine, that the present state of the law devalued them could not itself constitute or evidence such an interference: the interference must derive from something in its terms or its effect which, applying an objective standard, unequivocally conveyed that message. The existence of a legal right could not depend solely on the subjective perception of the putative victim.
Agreeing that the appeal must be dismissed, Thirlwall LJ, added that the public discourse tended to assume that there was a right to abortion subject to time limits, but that was not how the statute was framed. Its purpose and effect was to render lawful that which otherwise would be unlawful provided certain conditions were met. The NHS website informed readers that abortion after 24 weeks was permitted in very limited circumstances including that the life of the mother was in danger or there was a risk of serious disability. In fact, abortions performed after 24 weeks were rare. Outside those directly affected or with a particular interest in the issue, any general discussion on abortion was unlikely to extend to the question of late abortion at all.
The decision in the end was for the woman. She was uniquely placed to make the decision and it was her right and personal responsibility to do so in accordance with the law. A woman’s decision to have an abortion in that situation did not have the effect of stigmatising the living disabled.
Peter Jackson LJ also agreed that the appeal should be dismissed. Not every adverse circumstance amounted to an interference with the Convention rights and the impact of the legislation on the appellants was not so serious as to amount to an interference.
[1] Art 8 ECHR: Right to Respect for private and family life, home and correspondence: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
[2] Art 14 ECHR: Prohibition of discrimination: The enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.