A FURTHER attempt by campaigners to remove from the Abortion Act (1967) a clause that allows terminations of pregnancy after 24 weeks if there is a substantial risk of the child being born with a disability, including Down’s syndrome, has fallen in the Court of Appeal.
The case was brought by Heidi Crowter, a 27-year-old woman with Down’s syndrome; Máire Lea-Wilson, the mother of a three-year-old son with Down’s syndrome; and her son himself. It was first heard in the High Court in July 2021 (News, 9 July 2021) and in the following October a decision was published upholding the current law (News, 1 October 2021).
Currently in England, Wales, and Scotland, 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)).
There is no legal definition of serious handicap.
On Friday, the Court of Appeal rejected an appeal by Ms Crowter. In a summary of the decision, the judges — Lord Justice Underhill, Lady Justice Thirlwall, and Lord Justice Peter Jackson — said that the Act as it stood did not “interfere with the rights of the living disabled”.
“The court recognises that many people with Down’s syndrome and other disabilities will be upset and offended by the fact that a diagnosis of serious disability during pregnancy is treated by the law as a justification for termination, and that they may regard it as implying that their own lives are of lesser value.
“But it holds that a perception that that is what the law implies is not by itself enough to give rise to an interference with article 8 rights [to private and family life outlined in the European Convention on Human Rights].”
Lord Justice Underhill concluded: “I should emphasise that this Court, like the [High] Court, is only concerned with an issue of law. The question of whether, and if so in what circumstances, it should be lawful to abort a viable foetus on the basis that it will or may be born with a serious disability is one of great sensitivity and difficulty. But it is a question which it is for Parliament, and not the Courts, to decide.
“The only question for us is whether the way that it was decided in 1990 involves a breach of the Convention rights of the Appellants as people born with such a disability. For the reasons given I do not believe that it does.”
Speaking afterwards, Ms Crowter that she would consider seeking permission for the case to be taken onto the Supreme Court. She and her team have crowdfunded more than £140,000 for the case.
The team quotes the latest ONS data on abortions in England and Wales. There were 3370 disability-selective abortions in 2021, a nine-per-cent increase from 3083 in 2020. The number of late-term abortions at 24 weeks or over where the baby had a disability increased by 20 per cent from 229 to 274.
In 2021, there were 859 abortions where a baby had Down’s syndrome, an increase of 24 per cent from 2020. Late-term abortions at 24 weeks or over where the baby had Down’s syndrome increased by 71 per cent from 14 in 2020 to 24 in 2021.
Ms Crowter said: “We face discrimination every day in schools, in the workplace and thanks to this verdict the judges have upheld discrimination in the womb. . . When Wilberforce wanted to abolish the slave trade he didn’t give up when things didn’t go his way. I won’t give up either because the law should be changed to get rid of a negative focus on Down’s syndrome — even the words used in it are offensive.
“This law was made in 1967 when we were not even allowed to go to school because of our extra chromosome, so I think it’s time that the judges move with the times and actually meet people with Down’s syndrome and see the people behind the chromosome.”
The beginning of the Court of Appeal judgment describes Down’s syndrome as “the result of a chromosomal abnormality which leads to significant intellectual and physical disabilities”. Ms Crowter said on Twitter: “If we had written it, it would say . . . People with Down’s syndrome have an extra chromosome which can affect their learning and their health in a variety of ways.”
Responding to the outcome, the actor and Christian Sally Phillips, who created an award-winning documentary about Down’s syndrome (News, 9 June 2017), said to Ms Crowter on Twitter: “You’re feeling low today, but you made history. Looks like the ruling wasn’t about you or even ppl w/ DS — but another battle in the pro-life / pro-choice (or pro-birth vs pro-abortion) war. Don’t take it personally & be so proud of yourself. We are.”