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Down’s syndrome abortion fight will continue despite High Court verdict

24 September 2021


Heidi Crowter (middle) with Maire Lea-Wilson (right) speaking to the media outside the High Court in London after losing their case

Heidi Crowter (middle) with Maire Lea-Wilson (right) speaking to the media outside the High Court in London after losing their case

A CHALLENGE to the Abortion Act (1967), under which abortions can be carried out after 24 weeks if there is a substantial risk of the child being born “seriously handicapped”, has been rejected by the High Court.

The case was brought against the Health Secretary by three claimants: Heidi Crowter, a 26-year-old woman with Down’s syndrome; Maire Lea-Wilson, the mother of a two-year-old son with Down’s syndrome; and her son himself (“A”). It was heard in July by Lord Justice Singh and Mrs Justice Lieven (News, 9 July) and the judgment was published on Thursday.

Speaking on the steps of the High Court on Thursday, Mrs Crowter vowed to continue her fight, referring to the example of William Wilberforce, who “didn’t give up, even when events didn’t always go his way”.

The Church of England’s national adviser on medical ethics, health and social care policy, the Revd Dr Brendan McCarthy, agreed with the claimants that the current law was “innately discriminatory and unjustified” and called for Parliament to address the issue “urgently”.

Currently, abortions can generally be carried out only up to 24 weeks, unless the mother’s life is at risk, or there is “substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped” (section 1(1)(d)).

The claimants’ legal representative, Jason Coppel QC, argued that this differentiation was incompatible with the European Convention on Human Rights, including the right to life (Article 2). The law did not “strike a fair balance between those interests and the interests of the foetus, other disabled persons and the interests of the community as a whole”.

There is no legal definition of serious handicap. The High Court’s judgment draws on guidance provided to doctors by the Royal College of Obstetricians and Gynaecologists (RCOG). In 2019, 275 terminations were carried out after 24 weeks. Data held by the Health Secretary indicates that there were 19 forms where Down’s syndrome was referred to, of which six also mentioned other conditions.

The United Nations Convention on the Rights of Persons with Disabilities has called for an amendment to the law, expressing concern (in the words of the judgment) “about perceptions in society that stigmatise persons with disabilities as living a life of less value than that of others”.

Lord Shinkwin, a Conservative peer who has previously challenged section 1(1)(d) in Parliament, submitted that the section “drives a coach and horses through everything Parliament professes to believe in concerning disability equality”.

But the judges ruled that, in drafting the law, Parliament had had “the legitimate aim of protecting the rights of women and potentially other members of their families”.

“The issues which have given rise to this claim are highly sensitive and sometimes controversial,” the judgment states. “They generate strong feelings, on all sides of the debate, including sincere differences of view about ethical and religious matters. This Court cannot enter into those controversies; it must decide the case only in accordance with the law”.

The “fundamental difficulty” for the defending QC’s argument was “that the European Court has never decided that a foetus, even one post-viability, is the bearer of Convention rights, including Article 2”.

The judgment states: “There is powerful evidence before this Court of families which provide a loving environment to children who are born with serious disabilities but we do not know what would happen, in a counter-factual world, in which some women have been compelled by the fear of the criminal law to give birth to children who will not be loved or wanted. This is just one example of the intensely difficult issues which are better debated in Parliament, which can take account of different interests and viewpoints, rather than in litigation.”

It notes that “the ability of families to provide a disabled child with a nurturing and supportive environment will vary significantly.”

The judges were “not persuaded that there is any causal connection between this legislative provision, focused as it is on the rights of pregnant women and their medical treatment, and any discrimination that continues to be suffered by those with Down’s syndrome despite the extensive legislative provisions aimed at preventing such discrimination, in particular in the Equality Act 2010”.

Among those filing evidence on behalf of the claimants was Professor John Wyatt, Professor of Ethics and Perinatology at University College, London, who writes on the interface between science and Christian faith (Books, 14 September 2018; 10 September 2021). He noted that most babies born alive with Down’s syndrome had a life expectancy of 50 to 60 years. He also provided evidence of foetal sentience and “conscious awareness of pain” from 24 weeks onwards. This had led to the administration of foetal anaesthesia becoming standard practice in utero surgery performed after 18 weeks.

In evidence submitted on behalf of the defendant, Professor Basky Thilaganathan of the RCOG argued that “a late prenatal diagnosis [which could arise for many reasons] should not result in a woman being forced to make a hurried decision as to whether or not to continue with a pregnancy”. Clinicians faced difficulties in distinguishing between foetuses with “necessarily fatal abnormalities and those where ‘serious handicap’ may occur”. The court heard that, “many late terminations occur where the pregnancy is very much a wanted one.”

Speaking on the steps of the court on Thursday, next to her husband James, Mrs Crowter said: “I’m really upset not to win. But the fight is not over. The judges might not think it discriminates against me, the Government might not think it discriminates against me, but I’m telling you that I do feel discriminated against. And the verdict doesn’t change how I, and thousands . . . feel.

“We face discrimination at school, in the workplace, and in society. Thanks to the verdict, the judges have upheld discrimination in the womb, too. This is a very sad day. But I will keep on fighting. When Wilberforce wanted to change the law on slavery, he didn’t give up, even when events didn’t always go his way. And when the going got tough he kept going, and I am going to do the same.”

In July, three C of E bishops spoke in support of the legal challenge, arguing that: “There is something profoundly disturbing in our current contradictory stance which says that people living with disability are valued, respected and cherished, but that disability in and of itself represents a valid ground for abortion.”

On Friday, Dr McCarthy said: “While we recognise that the High Court made its judgement on points of law, we continue to support Heidi and others in asserting that late abortion on the grounds of Down’s Syndrome is innately discriminatory and unjustified.

“This is a matter that Parliament ought to address urgently to ensure that the law offers the same protections and safeguards for all, particularly recognising that disability, real or perceived, does not diminish the value and intrinsic dignity of any human being.”

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