Attorney General: a jury is incapable of judging the ethics of sex-selective abortion
In a Westminster Hall debate yesterday, Conservative MP David Burrowes secured the airing of the thorny issue of abortion based on the sex of the child, which was triggered by The Daily Telegraph’s investigation last year into the culture of abortion clinics. Following a police investigation, the Crown Prosecution Service decided that it "was not in the public interest" to prosecute those doctors who were found to have contravened the Abortion Act 1967 with regard to the authorisation of sex-selective abortion.
The lack of a prosecution is bizarre; moreso because the DPP Keir Starmer has effectively decreed that offences contravening the Act are largely unenforceable. Two doctors are supposed to give signed consent before a procedure may take place, yet it is apparently quite legal for these forms to be pre-signed, thereby circumventing the need for a woman's physical and mental health to be established.
Ann Furedi, Chief Executive of the British Pregnancy Advisory Service which performs 60,000 abortions a year, is of the view that there is no legal requirement to deny a woman an abortion if she has a sex preference. Her view is that a woman's right to abort is inviolable: a girl in the womb (for girls it will be) may be a legitimate cause of mental suffering for the woman, and so legitimate grounds for termination.
Mr Burrowes said:
When I heard about the investigation and the Care Quality Commission investigations that followed, I could not believe that such things could be happening in this country. The words I have quoted and the lack of any prosecutorial decision — there have been a handful of prosecutions for abortion contraventions in the past 10 years — give a green light to abortion on demand, which flies in the face of the Abortion Act and the intention of parliamentarians in 1967. Some 98% of abortions tick the box of mental health risk, but if we are honest, the truth is that that covers a multitude of reasons, and one of those reasons might include gender.Essentially, mental health issues have become a catch-all for grounds to procure (and be granted) an abortion. In this case, one of the GPs involved admitted that the procedure would be "like female infanticide”.
The DPP himself has referred in his statement to a programme manager at the Department of Health who indicated that many doctors feel that forcing a woman to proceed with an unwanted pregnancy would cause considerable stress and anxiety. The corollary of that is justifying the mental health grounds. It follows, therefore, that in practical terms we have in this country abortion on demand. I recognise that the Attorney-General is focused on the prosecution policy and will not trespass into the wider health policies, but my question is relevant. How does this reality impact on the policy towards prosecutions? How can it be in the public interest — Ann Furedi has raised this question — to prosecute contraventions of the Abortion Act when there is such a gap between the law and practice? (Hansard)
To any reasonably person, abortion on the grounds of gender is unacceptable and illegal. Mr Burrowes asked Dominic Grieve to confirm this, because, as Ann Furedi notes, the law is “silent” on the question. Indeed, the DPP has also confirmed that the law does not expressly prohibit sex-specific abortions. Rather, as Mr Burrowes notes, "it prohibits any abortion carried out without two medical practitioners having formed a view in good faith that the health risks of continuing with the pregnancy outweigh those of termination."
He further observes: "The British Medical Association takes it a stage further, aside from the issue of whether there is an express prohibition. In the BMA’s words, 'there may be circumstances, in which termination of pregnancy on grounds of fetal sex would be lawful'".
That, apparently, is in the BMA’s handbook of ethics and law and the guidance that goes to GPs.
This ought to be a matter of public interest, but the DPP considered it not so. The Abortion Act 1967 provides effective safeguard and defence against the Offences against the Person Act 1861. Mr Burrowes is of the view that this has been lost: "We have a gap," he says, "And the issue is, where it has been exposed — rarely do such cases see the light of day — why, when the evidential threshold has been reached, is it not considered in the public interest to take things a stage further, into court?"
The CPS stated that it was up to doctors “to interpret the law” and, flowing from that, that the cases were "better dealt with by the GMC rather than by prosecution". Mr Burrowes notes the logic of this:
The gap I referred to is, therefore, in effect being determined by doctors, with their wide discretion to interpret the law — if a problem is exposed, it is for the professional body to investigate. As a politician, to me that seems to be passing the buck — the responsibility for enforcing the law — from the courts to doctors, thereby second-guessing the intentions of Parliament on enforcement.But the Attorney General is of the view that a jury is incapable of determining malpractice. He explained:
..The last time that I checked on enforcement of the Abortion Act, it was for the courts to do, and not for a disciplinary committee of GPs, which was never mentioned or even suggested in 1967. That option is certainly not in statute. This is specifically prescribed in statute as a contravention, and the law should be enforced. I trust that the Attorney-General will make it clear today that criminal sanctions cannot be avoided because of professional status — making a point about integrity — and that applies across the board with other instances of criminality involving the professions. Plainly, everyone is equal under the law, although some of us would say that that is not the case for an unborn child.
To prosecute would have been to ask a jury to decide what steps a doctor should take. Juries take difficult decisions robustly, and sometimes they have to find their way through conflicting medical evidence. Is it right or fair, however, to ask a jury to arbitrate on a question of medical standards and ethics on which the profession has not published a detailed consensus, and on which a great deal turns for both doctor and patient? The CPS concluded in the recent cases that it would be contrary to the public interest to proceed. (Hansard)So, basically, the Attorney General is of the view that Statute Law is an insufficient basis upon which jurors may reach a judgment on the illegality of sex-selective abortion: since the medical profession has not been issued with a "detailed consensus" (..how can one be issued with a "consensus"?..), a jury cannot possibly arbitrate; it cannot discern where a blind eye is being turned; it cannot judge abuse of the 1967 Act, and neither can it form a balanced opinion of doctors' dishonesty, complicity and criminality.
This is why prosecution of those GPs who approved sex-selective abortion was deemed not to be in the public interest. And so we await the GMC's "detailed consensus" on the matter. In the meantime, Ann Furedi can go on terminating girls in the womb with impunity.