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Flawed ruling on late abortions

20 January 2023

Term-limits for foetuses with Down’s should be no different, says Nicholas Reed Langen


Heidi Crowter stands with supporters outside the Royal Courts of Justice, in London, in November

Heidi Crowter stands with supporters outside the Royal Courts of Justice, in London, in November

WE ARE taught that there is no hierarchy to human life. In the eyes of God, the very least of us is equal in dignity to the very greatest of us. “All are of dust, and all shall return to dust.” This is a teaching that society often struggles to be equal to. Instead of accepting people for who they are, celebrating their differences, society often prefers to bully and degrade those who are different.

The recent treatment of asylum-seekers exposes the Government’s preference, with camps such Manston degrading and humiliating those seeking refuge here. But, if Manston shows the moral failings of our politicians, a recent Court of Appeal decision on abortion shows the moral failings of our judiciary (News, 2 December).

Abortion, despite the way in which it is typically portrayed in the media, is not a fundamental right. There is no “right” to abortion per se. Rather, the Abortion Act 1967 sets out when a pregnant woman “shall not be guilty of an offence under the law relating to abortion”. These exceptions include almost any abortion performed before the “pregnancy has . . . exceeded its twenty-fourth week”, or if continuing the pregnancy would cause “grave permanent injury” to the pregnant woman.

Otherwise, procuring an abortion is almost always a criminal offence, unless there is a “substantial risk” that the child would be born “seriously handicapped”. Obviously, where the foetus is not viable, ending the pregnancy is understandable. The trauma of carrying a child to full term, knowing that it will be born with no chance of life, would be psychologically devastating to the mother. But, as Heidi Crowter, who brought the case, argued, this is not the only consequence of this exception.

Another consequence is that people like her, those with Down’s syndrome, can be aborted at any point before birth, even though the condition does not deprive them of happy, full lives. It may not be a life that many of us would consider “normal”, but this does not mean that it is a life without value. Despite this, some doctors treat a Down’s diagnosis as a death sentence.

Marie Lea-Wilson, who joined Ms Crowter’s appeal, was unexpectedly presented with the choice of an abortion after her unborn baby was diagnosed with Down’s at 34 weeks. She and her husband refused, and, as the court noted, their son is a “deeply loved and valued” child who is “hitting his developmental milestones”.

UNDERSTANDABLY, knowing that they could have been aborted at any point is hurtful to those living with Down’s — referred to in the judgment as the “living disabled” — and to their families. The implication is that they are not equal in dignity to those who are not born disabled. This was the crux of the argument put before the Court of Appeal. Under Articles 8 and 14 of the European Convention on Human Rights (ECHR), people have a right to a private life and a right not to be discriminated against. According to the appellants, both of these rights are violated by the Act, which “perpetuates and reinforces negative cultural stereotypes about people with disabilities”.

The justices were presented with swaths of evidence addressing how the statute causes the living disabled to feel “of lesser value” than others. This included testimony from Lord Shinkwin, a “severely disabled” member of the House of Lords, who focused on the ultimate purpose of the legislation: to “prevent us [the living disabled] from being born” because “we are life unworthy of life.” As Professor Scior, who researches the psychological impact of stigma at UCL, said: “Institutional stigma . . . [like] in legislation, has a powerful role to play in . . . promoting negative stereotypes, prejudice and discrimination.”

No person should feel as though their life’s value is diminished because of an intrinsic part of it. But this is the implication of the legislation, which, by virtue of being passed by Parliament, stands as the view of the British people. It is one thing for members of society to pass judgement callously, but another entirely for the legislature to vindicate that judgement.

Despite this, the Court was not convinced by Ms Crowter’s case. Lord Justice Underhill, writing for the majority, decided that the question was not how the “living disabled” could be treated before birth, but whether there was a “clear line [of discriminatory treatment] at the moment of birth”.

This is intellectually vacuous. Considering it from this perspective fails to engage with the critical question, which is why foetuses with Down’s can be aborted at any point. The fact that some foetuses are protected at 24 weeks and that some are not patently implies that the latter are somehow less desirable. To suggest, as the court did, that this conclusion is the subjective perception of the “putative victim[s]” is fundamentally flawed.

THE court was right that the legislation itself does not cause social stigma against disabled people. But it failed to engage with the obvious and necessary consequence of Parliament’s passing legislation that implicitly condones viewing part of society as lesser. People may have always discriminated against those who are different, but this does not justify the State’s giving such discrimination its seal of approval.

Abortion is a devastating act. Despite its portrayal in some parts of the right-wing media, few women approach it in a cavalier way. Letting foetuses be tested for Down’s syndrome is acceptable; but any question of abortion should be within the term limits and conditions that apply to every other pregnancy. Regardless of whether anyone would choose to live with Down’s syndrome, a life with Down’s syndrome is as dignified and valuable as any other. If the case is heard before the Supreme Court, we should hope that the justices agree. That is the very least that those living with Down’s syndrome deserve.

Nicholas Reed Langen is a writer and commentator on legal and constitutional affairs, a former Re:Constitution Fellow (2021-22), and editor of the LSE Public Policy Review.

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