A LEGAL challenge to the provision of abortion after 24 weeks for all non-fatal disabilities, including Down’s syndrome, is being supported by Church of England bishops.
The case, heard on Tuesday and Wednesday at the Royal Courts of Justice, was brought against the Health Secretary by a young woman with Down’s syndrome, Heidi Carter (née Crowter), and Máire Lea-Wilson, whose son Aidan has Down’s syndrome. They argue that the law is discriminatory.
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 (’Ground E’)”. There is no legal definition of serious handicap.
In 2020, there were 209,917 abortions for women in England and Wales, the highest number since the Abortion Act was introduced. Of these, 1.5 per cent — 3083 — were carried out under Ground E, and Down’s syndrome was cited in 693 cases. Of the 3083, 229 were carried out at 24 weeks and above.
Mrs Carter, who married her husband, James, a year ago (News, 6 July 2020), first wrote to the Health Secretary last year to request a change in the law to prevent terminations in the third trimester for all non-fatal disabilities (News, 28 February 2020). She has since raised more than £100,000 through Crowdfunding to finance a challenge in the courts.
“It’s downright discrimination, that’s what it is,” Mrs Carter told The Sunday Times. “I will not tolerate it. That someone like me or James could be aborted just before birth is just not on.”
Máire Lea-Wilson learned a few days before the birth of her youngest son, Aidan, who is now two, that he had a 50:50 chance of being diagnosed with Down’s syndrome. She told The Sunday Times: “When I said I wanted to carry on with the pregnancy, that decision was written into my hospital notes, yet I was asked several times more over the next few days whether I wanted to continue. The last time I was asked whether I wanted to terminate the pregnancy was at 36 weeks by an obstetrician, just a few days before Aidan was born.”
She argues that the current law “sets the tone for discrimination against people with Down’s syndrome which starts before they are born and continues throughout their life with devastating consequences”.
On Tuesday, the Archbishop of York, the Most Revd Stephen Cottrell, together with the Bishop of Carlisle, the Rt Revd James Newcome, the Church of England’s lead bishop for health and social care, and the Bishop of Newcastle, the Rt Revd Christine Hardman, issued a statement supporting the challenge: “The Church of England has consistently argued that the law on abortion is discriminatory on two counts. In the first instance, it permits abortions to be carried out solely on the basis of disability; secondly, it removes the twenty-four-week time limit for abortions in cases of disability. We do not believe that such discrimination, founded on the probability of disability, is justifiable.
“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.
“It is right that this should be scrutinised by the Courts and we commend Heidi Crowter and Máire Lea-Wilson for bringing their challenge to the High Court while continuing to recognise that Parliament has within its powers the ability to end this discriminatory practice.”
A 2013 parliamentary inquiry recommended that Parliament should consider either reducing the upper limit for abortions on the grounds of disability to make it equal to that in place for the able-bodied, or repealing altogether the provision allowing abortion on the grounds of disability up to birth. It heard “a common message that most parents are steered towards abortion and feel that they do not receive adequate information about other options”.
Most of those representing medical bodies and involved in foetal medicine opposed a change, arguing that “the law is right for the small number of difficult cases where parents face a late discovery of their child’s disability and that the law has no impact on wider public attitudes”.
The Church of England’s Mission and Public Affairs team was among those who submitted evidence, arguing that Ground E was discriminatory. The Church’s official position combines “principled opposition to abortion with a recognition that there can be strictly limited conditions under which it may be morally preferable to any available alternative”.
In 2003, the Revd Joanna Jepson, now a chaplain in the Army and at Wells Cathedral School, won a judicial review of a case in which a 28-week abortion was carried out because the foetus had a cleft lip and palate (News, 5 December 2003).
In 2018, the General Synod resolved to “affirm the dignity and full humanity of people born with Down’s syndrome” and called for “comprehensive, unbiased information” about the condition to be given to parents told that their unborn child had it, “with no implied preference for any outcome” (News, 16 February 2018).