Abortion for cleft palate –
“I told you so”

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Rochester Area Right To Life

See the details about Joanna Jepson's action

"We Warned Them, They Mocked Us, Now We've Been Proved Right"

By John Finnis

Last Sunday I read - with regret and hope - this newspaper's leading article in support of the Rev Joanna Jepson's legal struggle against doctors who aborted a foetus after six months because the mother had decided she did not want a child with a cleft palate. I regret that what I predicted during the enactment of the 1990 Human Fertilisation and Embryology Act has come about, and I hope that some of the cruel injustices inherent in that Act may now at last be addressed.

At the time of the 1990 amendments to the 1967 Abortion Act, my fellow lawyer John Keown and I wrote a one-page circular for members of Parliament which foretold just such a horrible scenario, in which an otherwise healthy foetus of more than six months could be legally aborted for having "a hare lip or a cleft palate". The response of several vocal MPs, seemingly supported by many others, was one of outrage - not at such a possibility, but at us, for pointing it out. "I deplore the circular .... a gross calumny on the medical profession ... I find such things totally discreditable," said Sir David, now Lord, Steel. Harriet Harman said we should be reported to the Law Society or the Bar Council.

Neither House intended to legalise abortion for cleft palate. The 1990 amendments were based on the report of a 1988 Lords' Select Committee, chaired by a Law Lord, Lord Brightman. That report urged that there be no time limit on abortion where the baby was diagnosed as "grossly abnormal and unable to lead any meaningful life". This was the explication of "seriously handicapped" which was invoked again and again, in both Houses, by authoritative speakers.

Sir David Steel, a main architect of the 1967 Abortion Act, spoke of "an abnormality that would prevent sustained life after birth or that would result in gross handicap". Baroness Warnock, a main architect of the 1990 Act and a member of the Brightman committee, told the Lords: "Here one is talking about a child who is very severely damaged and cannot live a meaningful life." Lord Brightman himself reassured the Lords as if recalling our note: "Such abnormalities as to be seriously handicapped - not a hare lip or a cleft palate which can be mended by an operation."

Those who supported the 1990 amendments apparently all agreed with Joanna Jepson that a mendable cleft palate should not be an acceptable reason for a late abortion. Some of the doctors who carry out the abortions, however, seem to have a different view. We warned that the law as amended would allow abortion for "serious handicap" to be performed as late as the 40th week, and that in the opinion of some doctors a cleft palate, or even a hare lip, is such a handicap. Our concerns have been borne out. Joanna Jepson has brought that into the light of day.

Moreover, when assuring themselves that they were placing high hurdles to late abortions for handicap, many parliamentarians in the 1990 debates seemed to forget that, for an abortion to be lawful under the Abortion Act, none of the conditions in the Act's enumerated criteria for abortion - including "substantial risk" of being "seriously handicapped" - need actually exist. It is enough that one of the conditions be thought to exist in the opinion (in "good faith") of two doctors, even if most other doctors would consider that opinion unsound. This is one of many injustices built into the Abortion Act in 1967 and extended in 1990 to unborn babies late in pregnancy. Sadly, it is one of the obstacles in the way of Joanna Jepson's legal action.

Besides the injustice to unborn babies suspected of handicap, our circular highlighted the introduction in 1990 of two more injustices.

First, that where a late pregnancy is terminated under the Abortion Act of l967 as amended by the 1990 Act, it is legal for doctors to take specific steps to end the life of the foetus even when that foetus is fully capable of surviving the termination and living normally. Second, that in these circumstances a living baby can be destroyed during birth- partly emerged from its mother--for any reason at all: "partial-birth abortion".

Members of each House hastened to dismiss our objections as fanciful; Frank Doran, then the Labour MP for Aberdeen Central, called our point about cleft palate "pure scaremongering". In the Upper House, Lord Brightman seemed to speak for all the supporters of the new provisions when he said that "it would be unthinkable" for a doctor who was carrying out a termination to preserve the mother's life or health to "gratuitously terminate the life of the child". Sir David Steel's charge, in the Commons, that we had grossly calumniated the medical profession gave way to Lord Brightman's comforting assurance in the Lords that: "A doctor does not need an Act of Parliament to teach him that elementary duty." With Baroness Warnock and several doctors, he persuaded the Lords that there was no need for the proposed requirement that doctors doing late terminations of pregnancy should take "reasonable steps to secure that the child is born alive".

Thus the most minimal legal protection was denied to these unborn children - and to those substantially but not technically born - on the basis of comfortable but implausible assumptions about what "all doctors" think and do.

Our legislators, guided by doctors and lawyers, had misled themselves in rather similar ways in 1967. They legalised abortion where any two doctors think that continuing the pregnancy would risk the health (mental or physical) of the mother or her existing children more than terminating it would - even if the risks on either side of the equation are very small. The result is abortion virtually on demand, as the numbers and much else suggest.

As John Keown demonstrated in his book "Abortion, Doctors and the Law," the 1967 Act has had a devastating impact on the ethics of the medical profession: our courts have mostly followed this downward path.

With the 1990 amendments, abortion law moved another step closer towards the outright eugenics that Joanna Jepson is now resisting. How strange that it should fall to a 27-year-old curate in 2003 to do what some of Britain's most experienced legislators apparently found beyond them in1990. Still, her action, if successful, would at least make the law resemble more closely what the supporters of the 1990 Act so fiercely argued it meant at the time.

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John Finnis is a Professor of Law at University College, Oxford.

The National Right to Life carried this story and have given us permission to include it on our website.  This story first appeared in the [London] Telegraph December 7, 2003 and was  reprinted by NRLC with the author's permission.  See other Andrusko columns on www.nrlc.org


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