Britain - Insidious attacks against the right of women to abortion

Jul/Aug 1997

Towards the end of May, the issue of a woman's right to abortion hit the frontpage headlines of the national papers with the case of Lynne Kelly, in Scotland - who was taken to court by her husband in a bid to prevent her from having an abortion.

Faced with the husband's claim to have a right over "his" foetus, the judge who heard the case decided that he had discovered a legal "grey area". He granted an interdict preventing the abortion, in order to allow "legal debate". When the court reconvened the following week, the same judge decided that he could not uphold the husband's case that an "unborn child is entitled to its father's legal protection". However he ruled that the case should be left open by allowing an Edinburgh Appeal Court hearing. The following day, four judges in a special sitting ruled that though Lynne Kelly was entitled to the abortion - she still could not go ahead with it! And they granted her husband leave to appeal to the higher authority of the House of Lords.

In the end, Lynne Kelly did have the abortion, not thanks to the legal system though, but only to the fact that, at the last minute, her husband "changed his mind" and withdrew his final appeal. No doubt he was assisted in coming to this decision by the public exposure of his documented record of violence towards his wife.

By this time Lynne Kelly's pregnancy had gone 14 weeks, having been delayed by 3 weeks of legal games, which meant that a termination now required a more complicated and potentially traumatic procedure. But for the courts and, of course, the anti-abortion lobby, such considerations were apparently less important than "legal debate". As to the media, they proved only too happy to turn the whole affair into sales-boosting high drama.

There was something utterly sick about this legal charade. Not least because, as Lynn Kelly's solicitor pointed out to the court, it amounted to allowing a legal debate on whether women should be considered merely as "convenient containers of foetuses". Even a right-wing Tory like Theresa Gorman felt she had to encourage Lynne Kelly to ignore the legal game and use the few hours between two injunctions to get her abortion done!

Outrageous as this infringement of women's rights may be, Lynne Kelly is not likely to be the last victim of interference by the judicial system on behalf of men (or women for that matter) who want to claim rights over a foetus or otherwise turn the clock back, to a time when women were not meant to have any control over their own fertility. Especially since, in the Kelly case, her husband backed down just before the "test case" could be heard in front of the House of Lords. There will no doubt be others who will want to push this "test" all the way.

The fact that this case was allowed to go ahead at all, however, and the sympathetic publicity it received from the tabloids, reflects a trend in society. The past years have seen the slow but steady growth of a reactionary current which has chosen the right of women to abortion as one of its targets. Between the hypocrisy and social bias of the legal system, the dubious demagogy of the media and the endeavours of the loony right, there is less distance than one might think. All threaten a right which, in today's society, is vital for women, particularly for working class women.

The 1967 Act - a step forward loaded with hypocrisy

Leaving aside the present reactionary undercurrents in society, the Kelly case would not have been possible were it not for the hypocritical wording of the Abortion Act, which, as it happens, was passed almost exactly 30 years ago, in October 1967.

Contrary to popular myth, this Act was not the achievement of the feminist movement - which grew up only afterwards, during the seventies, out of the fight to defend and extend it. But it was nevertheless the result of a long struggle, fought for mainly by single issue campaigns and particularly by the Abortion Law Reform Association, which had been set up back in the 1930s.

By the latter half of the sixties, when women had come to play an important part in the labour force, the generalisation of contraception and legalisation of abortion came to be seen as both logical and necessary. The oral contraceptive pill had been widely available since the early sixties, and improved methods of abortion made the procedure both safe and simple. Since a legal loophole had been established in 1938, by the trial of Dr Alec Bourne (he had performed an abortion on a 14-year old girl who had been raped by officers of the Royal Horse Guards) abortions had been carried out under the cover of the precedent set by this 1938 case - i.e. that a doctor believed in "good faith" that abortion was necessary to prevent the woman becoming a "physical or mental wreck". But this possibility was available only to women who could afford to pay doctors to run the potential risk of prosecution.

Working class women, who could not pay for private doctors, were mostly forced to go to "backstreet" abortionists or to resort to various dubious remedies, thus endangering their lives, or risking serious injury and damage to their future capacity to bear children. In the early 1960s women were being imprisoned in increasing numbers for performing illegal abortions. In 1966, 44 women jailed in Holloway prison were interviewed and justified themselves by saying: "We knew it was against the law, but we didn't feel it was wrong... women have to help each other." In the three years from 1964 to 1966, prior to the passing of the Abortion Act, 98 women had died in Britain as a result of illegal abortions.

It was undoubtedly the necessity to prevent such catastrophes and the cost to society and the NHS in particular, which forced the hand of the establishment to legalise abortion and make contraception widely available, despite the resistance of the Catholic Church and other reactionary lobbies. The thalidomide scare also probably contributed to the atmosphere which saw the relatively easy passing of the Act.

The Abortion Act was passed under Wilson's Labour government, which, during the same year, introduced legislation making the free provision of contraception and "family planning services" a duty for the National Health Service. However, the initial Abortion Bill had not even been presented by the government itself, despite the fact that a large section of the Labour party was probably in favour of such a reform. No doubt Wilson preferred to avoid upsetting the more prejudiced elements in his electorate. In any case, it was David Steel, a Liberal MP, who moved this reform of existing legislation, as a Private Member's Bill - which may go some way towards explaining some of its shortcomings.

The 1967 Abortion Act did not actually legalise abortion, nor did it repeal the existing legislation which made abortion a criminal offence. On the contrary, it only listed conditions under which performing an abortion should no longer be considered a criminal offence under the law. These conditions were that the abortion had to be carried out by a registered doctor before the 29th week and that two registered doctors "are of the opinion, formed in good faith

"(a) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the preganacy were terminated; or
"(b) that there is substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped."

The Act went on to say that "account may be taken of the pregnant woman's actual or reasonably forseeable environment."

The wording of this Act was, therefore, vague enough to allow a liberal interpretation and therefore allow abortions to be done for social reasons, provided, of course, that two doctors are prepared to agree. However, doctors could also make a narrow interpretation and refuse an abortion, on the grounds that, in their opinion, a woman is physically and mentally healthy and has a "reasonable" social environment. This very vagueness made the implementation of the Act, and therefore women's right to abortion, vulnerable to all kinds of hostile social pressures. All the more so as there was a "conscience" clause in the Act which allowed doctors (and in fact all medical staff) to refuse to have anything to do with abortion - without them having to advertise this fact before being approached for help by a woman seeking an abortion. In fact, not only was this "conscience" clause questionable, (why should doctors or other medical staff be allowed to opt out of any kind of treatment when it is needed?) but it also became a campaigning tool for anti-abortionists to block abortion where they had the authority to do so.

Besides, unlike for contraception, this Act did not place an obligation on health authorities to provide abortions, or funding from the NHS. No guidelines were issued by the Department of Health. Nor did the Act apply to Northern Ireland, or to Guernsey for that matter.

The Act was nevertheless a step forward for women in Britain - although a belated one, since it came nearly half a century after abortion was legalised in Soviet Russia in 1920, where the decision was put in the hands of women themselves, and not in the hands of the medical profession. And, despite the fact that it was just a limited advance, it put British legislation ahead of many other European countries and indeed the USA. However, it seems that since 1967, the British legal system froze on this issue and has never moved since, except backwards - partly due to the hypocritical limitations built into the Act.

Thirty years on, women's right to abortion is still not "the right to choose". It remains an "exception" in law, which is increasingly questioned with the backing of the legal system, a growing reactionary lobby of campaigners and a significant number of MPs, of whom, in the previous Commons at least 200 (including 31 Labour MPs) were against legal abortion.

Anti-abortionists try to turn back the clock

Since the 1967 Act was passed there have been 20 challenges mounted against it from anti-abortion MPs in the House of Commons. The most significant failed attempts were the James White Bill in 1975 and the John Corrie Bill in 1979, which provoked large public demonstrations in protest. More recently there have been the various and repeated attempts by the Catholic Liberal MP, David Alton, to further infringe women's rights.

In 1982, the "All Party Pro-Life Group" of MPs in which Alton plays a leading role, managed to get the wording changed on the form signed by doctors authorising an abortion. This eliminated "social grounds" as an indication, and though the law itself has not changed, the form now only lists medical reasons for abortion, thus acting as a deterrent for doctors who are not familiar with the law or have reservations themselves about abortion.

In 1984, the Ulster unionist MP Enoch Powell pushed for an "Unborn Child (Protection) Bill" which aimed to give a foetus full legal rights at the time of conception! This tactical move of anti- abortionists, which was allegedly designed to prevent research on foetal tissue and human embryos, really aimed at forcing a ban on all abortions. Fortunately they failed and, to date, the courts continue to uphold the view that a foetus is not a person in law.

However, David Alton was, and is not, deterred. In 1988 he introduced a bill which aimed to ban abortion after 18 weeks and create a new criminal category of "late" abortion. This failed to get through. But, in 1990, the Human Fertilization and Embryology Act did reduce the statutory limit of 28 weeks for inducing abortion - but to 24 weeks, after which it is now considered that a foetus, if born, has a reasonable (one in three) chance of survival, due to advances in medical science. But in fact statistics show that the number of terminations performed "late" i.e. after twelve weeks, is hardly an issue, and that only 3.3% are carried out after the 17th week and then only for severe foetal abnormality.

In 1996, an attempt was even made to exclude Down's syndrome - a chromosomal abnormality, previously known as "mongolism", which results in mental retardation, abnormalities of facial features, and sometimes serious heart abnormalities - from the categories of handicap which justify abortion.

Despite all these attempts, to date the 1967 Act still stands more or less intact. The anti-abortionists have failed to erode it significantly through legal measures. Neither have they taken the extreme course of their fanatical counterparts in the USA, who have shot dead five people who worked at abortion clinics since 1993 and routinely subject those involved in the provision of abortion to more or less violent attacks and intimidation.

Nonetheless, throughout the eighties their activities have been on the increase in Britain. Of course they are quick to jump on any opportunity to sponsor, from their vast funds, attempts made to stop abortions in court - as they did in the case of the student Robert Carver who in 1991, tried and failed to prevent his girlfriend from "selfishly" having an abortion. While campaigns like the "Society for the Protection of the Unborn Child" (SPUC) and "LIFE" continue their propaganda efforts and claim to be dedicated to non-violent methods, new militancy similar to the "operation rescue" tactics of the US fanatics is becoming more popular, with some clinics being subjected to regular protests outside, forcing women attending to run the gauntlet of their street "counselling".

More recently, this year, there have been two cases which anti- abortionists have used to make publicity for themselves. In the case of a single mother who planned to abort one of her twins, on the grounds that she could not afford two children, LIFE offered her £60,000 to change her mind. But what neither the media nor LIFE knew, as it turned out, was that she had already had the abortion - making this stunt itself an abortive one...

Another woman, who, due to fertility treatment, was found to be carrying eight foetuses was turned into headline news by a tabloid newspaper. The only possibility she had of ending up with at least one or two live babies was to have some of these foetuses aborted. It was a medical impossibility to carry them all to term. The newspaper in question, however, offered her a large sum of money to continue the pregnancy with all eight foetuses - as a "principled stand" against abortion. This she did, and of course ended up losing all of them by spontaneous miscarriage. The fact that, this time, the sponsor of this campaign was a widely-read tabloid rather than LIFE or SPUC, gave it a much greater impact. That mainstream tabloids felt it would be good for their business to pull such a stunt, is however significant. Just as, during the Great Depression of the 1930s, it became acceptable to make fun out of luring the unemployed with a few dollars into dancing themselves to total exhaustion in "dance marathons", today it is acceptable to lure a woman into putting her health at risk by becoming a medical sideshow. And the fact that this newspaper chose to make this spectacular stand over abortion, against a background of political overbidding by the main parties on the issue of "family values", was obviously deliberate. It was aimed at riding the reactionary currents which the politicians themselves were trying to whip up.

Nor have reactionary campaigners confined their imbecility solely to the issue of abortion. In 1994, Father Leo Chamberlain, a Benedictine headmaster of Ampleforth Boys' School in Yorkshire, announced that Catholics should refuse rubella vaccine for their children since the cell culture for the vaccine had originated from the lung tissue of a foetus - retrieved after an abortion - more than 20 years ago!

Then during the recent General Election in May this year, a "Pro- Life Alliance" sponsored by LIFE, fielded 56 candidates, targeting the seats of MPs who were explicit in their support for "a woman's right to choose". This effort fell rather flat when Mohamed Al Fayed, owner of Harrods, decided to withdraw a promised £25,000 donation to their election campaign after negative publicity, including a protest by women outside his prestigious shop. Moreover, the PLA's attempt to horrify the public with a TV election broadcast showing a "late" abortion, i.e. with a dead foetus of over twelve weeks, ended up in a legal battle over censorship, which they lost.

The NHS - "inertia" and the impact of cuts

It is not however the restrictions under the existing law, nor the moral climate which represents the biggest problem for women seeking abortion today. While "equality of access to health care" is meant to be a cornerstone of the National Health Service, this has never applied to abortion - despite the fact that abortion is one of the most common procedures in both the NHS and the private health sector. Ultimately, the decision to provide it as a free treatment rests largely with the doctors concerned, and the policy of each particular health authority or hospital trust.

Right from the start, in some areas, abortions were just not available at all, due to the "conscientious objection" of the consultant gynaecologists and obstetricians. Birmingham and the Midlands have been the most notorious example of this, where Professor Hugh McLaren - a founding member of SPUC - stated publicly his intention to block abortions on the very same day the 1967 Abortion Act was passed: "Whatever the law says, we will never murder little children in Birmingham". McLaren may have long since retired, but today, areas in and around Birmingham, notably Solihull, Dudley and Wolverhampton, still have the among lowest rates of NHS abortions in the country. McLaren's legacy was to have acted as a focus of attraction to Catholic doctors and other anti-abortionists who came to Birmingham to train in gynaecology and obstetrics and remained in the area, using the hypocritical pretext of the "conscience" clause to act as a block on NHS abortions. It also meant that the only alternative in this region was to "go private" with the result that facilities were set up outside the NHS by charities and the private health sector.

In the early years, the NHS funded only 50% of all abortions, and out of these 50% many were done outside NHS facilities. By 1995, after numerous commissions of enquiry into this state of affairs, still only 70.5% of abortions in England and Wales were funded by the NHS (except in Scotland where almost all abortions are NHS-funded). But even then, a large proportion are actually done, with NHS funding, by private or charity clinics. Ironically, the "purchaser/provider" split in the the health service, introduced by the Tories, by allowing comparisons between health authorities, shed a crude light on the overtly inequitable provision for abortion by certain authorities, resulting in some protests and improvements.

More and more, however, women are under pressure to pay for private abortions, both because of the cuts in the NHS, leading to longer waiting periods, but also because of the moral judgements and often patronising and sometimes punitive treatment they still face today in the hands of far too many NHS departments. By contrast, both the charity and private sector, having been set up for the purpose of supplying this need, are on the whole, more respectful, sympathetic and efficient. Two doctors are usually on hand at the same time during consultation, so that the abortion is not unnecessarily delayed due to the lack of another doctor's signature on the required form. However to be assured of such smooth treatment women have to pay the going rate which is around £220 for a termination of up to 12 weeks gestation.

Today, health authorities are looking for areas where they can cut costs. There are areas which they cannot touch without creating problems for themselves. But as far as abortion is concerned, they feel safe to make the cuts, as a result of the general "moral" climate. Almost all health authorities, according to the Abortion Reform Association, which did an extensive survey in 1995/1996, conduct an unofficial means test on women seeking abortion. This report quotes one authority, which has a contract for some of its abortions with a charity clinic, as saying: "If you actually turn round and say to a girl: we can do it on the NHS but you will have to wait, or we can do it this month if you pay, then they will find the money themselves... The other thing is that (the private clinic) has charitable monies and when push came to shove... they say they never turn anybody away... that is the overlay of the situation."

Eroding the right to abortion

But the increasingly reactionary moral climate these days has other consequences for women as well. In 1994, a special "independent" commission of enquiry was set up, under the auspices of the House of Lords, into the "operation and consequences of the Abortion Act" to look into the physical and psycho-social effects of abortion on women. While claiming not to be looking at the ethics of the question, the composition of this commission (all four MPs on it were known to be anti-abortion, among them David Alton) was obviously biased. For some unknown reason it even included the reactionary Thatcherite Oxford historian, Norman Stone! Its method was to invite voluntary submissions from women who had "experienced" abortions, on the basis of a questionnaire or oral evidence.

Of course, with such a system of self-selection, the submissions were heavily biased against abortion and the recommandations of the commission were a thinly disguised attack on abortion per se. For instance: "The commission heard from witnesses representing the Royal College of Psychiatrists who stated that although in legislative terms the majority of abortions are carried out on the grounds of danger to the mother's mental health, there is no psychiatric justification for abortion." And further: "The philosophy of choice is, however, flawed where all the options are weighted in favour of abortion. Women who now regret a pevious abortion might have taken another option if alternatives, and the necessary support to take one of those alternatives, had been offered." The Commission ended up recommending to the government that it "instructs" NHS hospitals to impose a one week "waiting" period on women before they have the operation! They also recommended obligatory counselling on the "adverse affects" of abortion, on the stage of the pregnancy and on the aid available from organisations like LIFE. It even suggested that such "independent" organisations get government funding!

Nowadays in fact women do indeed face obligatory "counselling" in many health authorities - not the kind of sympathetic, supportive counselling which could be of use, but counselling based on the assumption that they do not really know their own minds. They may also easily fall prey to anti-abortion agencies which advertise a counselling service without making it clear that they are against abortion. Some women are now reporting that when they had their ultrasound scan (obligatory in order to establish accurately the stage the pregnancy has reached), and despite the fact that they expressed no wish to "see the foetus" on the screen, they were given a description of the movements of the "baby" and even told about its sex, in an obvious attempt to put them off going ahead with their decisions. With the backing of "illustrious" commissions, any anti-abortionist is now "licensed" to dissuade women from having a termination.

Restrictions on contraception

Despite all these obstacles, it is estimated that four out of ten women in Britain will have an abortion before the age of 45 years. Overall abortion figures have decreased from an absolute peak of 173,900 in 1990, to 154,298 in 1995. The huge number of abortions which are still necessary in this country (more than other comparable Western European countries, by far) is without doubt contributed to by a lower standard of living and poor prevention - a direct consequence of contraceptive services having been inadequate from the start and then having been the target for severe cuts by NHS managers during the 1980s.

While contraception was meant to be made available on the NHS after the Family Planning Act of 1967, it took until 1974 for contraception clinics to become fully integrated into the NHS. Up until then contraception had been largely provided by the charitable "Family Planning Association" clinics. In 1974, GPs were finally authorised to prescribe contraception but they proceeded to argue for months about how much they should be paid to do so and in the end refused to prescribe condoms at all. They then rarely prescribed anything other than the pill, which left women having to find a suitable family planning centre if they wanted access to a full range of alternatives. But these centres still could not meet the need, being often open for only a few hours a week. So when the cuts started in the 1980s, leaving many health authorities with only 50% of the previous level of service, it is hardly surprising that the abortion rate began to soar once more, increasing by 44% between 1979 and 1990.

It is estimated that if the so-called "morning after" pill was available more freely to women, as many as eight out of ten abortions could be avoided. Yet it was almost impossible for women to find out about it, or obtain it outside of the contraception clinics in the first half of the 1980s. It is more well-known today, and GPs will more often prescribe it, but it has certainly never been advertised in the one place most women would not miss it - on television - no doubt again due to the moral army which permeates the establishment.

As for educating teenagers on sex matters, it was really only in 1991 that the government took any real interest in formalising sex education, in response to the revelation that Britain had the highest pregnancy rate in Western Europe among under-sixteen year olds! And even this initiative was marked by an incredible farce over the guide for adolescents commissioned by the Department of Health, which the government withdrew and pulped, on the grounds that it was "smutty" since it used words like "wanking" and "dick"! But at least in school, most children will now, from the age of 13 years upwards, receive information on contraception, the "morning after" pill and abortion, even if their mothers are still none the wiser.

Recently so-called "medical abortion" - using a drug called mifepristone or RU 486 - has become available, which, along with another drug, could potentially provide less traumatic, simpler and cheaper abortions than the commonly used surgical evacuations, at least up to nine weeks of pregnancy. Though this method requires more visits to an abortion clinic and would still require surgical back-up, it could mean that abortions could be carried out by suitably trained staff, without the need for doctors to be directly involved unless there are complications. Though trials were conducted already in the early nineties, which clearly indicated the safety and acceptability of this method, it has only very recently been made available in Britain, it is so far used only on a very limited basis.

A right which must be fought for

Today the horrors of septic abortions - causing death through gangrene of the uterus in the worst cases - are largely forgotten in Britain. As a result, using the argument of "no return to the backstreets" in favour of free and safe medical provision does not have the impact it used to have. Yet a majority of the world's population still has virtually no access to safe, let alone free, contraception and for them "backstreet abortion" is the only alternative they know.

Of course, the use of contraception - even when it is freely available - is no guarantee of avoiding pregnancy. Worldwide, unplanned pregnancies are estimated to comprise at least 50% of the conceptions which take place, and out of these 50% at least half again are unwanted. While we live in a society where social exploitation leaves little space for consciousness, abortion will remain necessary for women to guarantee that they have at least some choice over what they do with their lives, through controlling their fertility - and a vital necessity for the poorer and most exploited sections of society. And this "right to choose" is devoid of any content as long as abortion is not readily accessible, freely and safely for all women.

The existing situation does not come near to matching the needs of women, despite the fact that even the limited rights which exist today have been so hard-won. What aggravates the situation is the fact that we are living in a period of unremitting capitalist crisis. The bourgeoisie is striving to reduce further and further the share of society's wealth which does not contribute directly or indirectly to increasing its profits. And to this end, it is trying to recoup the concessions it has made in the past. Whichever moral, religious or "family values" pretext they use, the attack on abortion rights, whether it be open or behind the scenes, is part of the same reactionary current which is attempting to turn the clock back for working people and push them into poverty.

As Karl Marx wrote in the last century, "The changes in a historical epoch may always be inferred from the comparative freedom of women in one part of it or another.... the degree of emancipation of women is a natural standard of the general emancipation..." For us, revolutionaries, the fight for women's right to free abortion on demand remains part and parcel of the fight for the emancipation of society as a whole.