ABSTRACT
Abortion is the most common surgical procedure for women of reproductive age. In the United Kingdom, around one in three women will have at least one abortion during their lifetime, with most being performed for social and psychological reasons.1 In 2008, only 1 per cent of all abortions were performed for reasons of foetal disability.2 Globally, the legal status of abortion has profound ramifications for women’s health and mortality. Although it is obvious that abortion directly affects and concerns women, the focal subject of British abortion law is, nonetheless, the medical doctor. Since the nineteenth century, abortion law has been reformed periodically to reflect the heightened status of the medical profession and its influence on abortion, culminating in the full medical authorisation of abortion practice in the Abortion Act 1967. While historically abortion was performed routinely by women on themselves, and on each other as part of the practice of midwifery, abortion is now a fully medicalised procedure that, legally, only doctors may perform. This consolidation of medical autonomy and medical control of abortion correlates with a related disinterest in women’s autonomy embodied in the law: a pattern that is strikingly apparent within each legal reform enacted since 1803. Abortion law regulates a medical procedure crucial to women, and peculiar to women, yet the interests of women in the control of their reproduction appear as all but invisible when examining the text of the 1967 statute, and the legislation preceding it. Feminist critical legal theory has long identified the falsehood of a system and
practice of criminal law that purports a ‘neutrality and objectivity of liberal legal forms’, thereby exposing the ‘substantive preconceptions’ of these forms and ‘the ways in which they in fact favour systematically certain kinds of interests’.3 For example, Lacey argues that women’s lack of representation within and by the supposedly neutral category of the ‘legal subject’ in the criminal law has meant that ‘the views and assumptions built into legal forms, rules and principles as well as the values and goods recognised by legal arrangements express the experiences and viewpoints not of the abstract individual’ but of the ‘privileged white male’.4 The basic feminist argument with the criminal law is, according to
Lacey, that the ‘paradigm legal subject’ has been constructed as an individual ‘abstracted from its social context’, characterised by masculine-identified capacities for ‘rational understanding, reflection and control of their own actions’.5 An essential method of this construction is the systematic exclusion of ‘certain features of experience’ that may be ‘extra-legally crucial to the shape of women’s lives’, yet which are deemed irrelevant to the process of the law. This exclusion performs a function, in Lacey’s terms, of silencing women by disallowing the context of their experience in law’s abstract formation of the rational (male) subject.6
