ABSTRACT
Childbirth is no longer the inevitable consequence of pregnancy. Natural miscarriage aside, the availability of legal abortion means that for many women, the ‘natural’ consequences of sexual intercourse can be avoided. While women’s ‘self-identity and social role have been defined historically by their procreative capacities’ (Ryan, 1999: 97), it is difficult to overstate the significance of this development. Gaining the freedom to decide whether or not to bear and nurture children through the wider availability of contraception and access to legal abortion has been, and remains, high on the feminist political agenda. The supply of abortion services, as Leslie Bender comments, is ‘one part of women gaining control of their reproductive lives, an essential prerequisite to women freeing themselves from male dominance’ (1993: 1263). Not only is this central in securing a right to reproductive autonomy, but ultimately, an identity untied to reproduction. Of course, on its face, the Abortion Act 1967 falls far short of granting such a ‘right’; as we noted earlier it is a restrictive piece of legislation more concerned with granting decision-making responsibility to the medical profession, than to women. While this remains the case, the ‘reality’ of abortion provision presents a different picture. As Ellie Lee comments, there is a disparity between ‘law and
practice’, where the availability of abortion ‘has outpaced that which the law might appear to allow’ (2003a: 533). So despite a lack of entitlement to abortion services, given that around 180,000 terminations are performed each year in England and Wales, this suggests that in practice, medical practitioners are taking a less restrictive view as to when the terms of the 1967 Act are met. And certainly the Act does afford a more liberal reading. Considering that pregnancy and childbirth are always more dangerous to a woman’s health than an abortion procedure, then s 1(1)(a) will be easily satisfied providing the woman’s pregnancy sits within the gestational time limits.1 Furthermore, it may be argued that this provision of the Act, coupled with the social ground under s 1(2), which permits account to be taken of the ‘woman’s actual or reasonably foreseeable environment’, is capable of rendering lawful the termination of every pregnancy within the prescribed time limits. As JK Mason suggests of abortion: ‘it is difficult to see how one could be refused in the circumstances’ (2002: 49). Therefore it is perhaps unsurprising that in practice, ‘there is a widespread assumption that the 1967 Act seems to have provided reasonable access to abortion services performed in safe conditions for most women’ (Sheldon, 1998: 46). But some would go much further than this; as Lord Denning MR remarked of the Abortion Act 1967 in Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800:
It legalised abortion if it was done so as to avoid risk to the mother’s health, physical or mental. This has been interpreted by some medical practitioners so loosely that abortion has become obtainable virtually on demand. Whenever a woman has an unplanned pregnancy, there are doctors who will say it involves a risk to her mental health.
