The Decriminalisation of Abortion: an Argument for Modernisation

Article English OPEN
Sheldon, Sally (2015)
  • Publisher: Oxford University Press
  • Related identifiers: doi: 10.1093/ojls/gqv026
  • Subject: K
    mesheuropmc: humanities | health care economics and organizations

While abortion is now offered as a routine part of modern NHS-funded reproductive healthcare, the legal framework regulating it remains rooted in the punitive, conservative values of the mid-Victorian era. This article argues that this framework is in need of fundamental reform to modernise it in line with the clinical science and moral values of the 21st century. It assesses the current statutory framework regulating abortion against the purposes that are typically claimed to motivate it: the protection of women; and the prevention and condemnation of the intentional destruction of fetal life. It argues that it fails to achieve either of these broad aims and that we should thus remove specific criminal penalties relating to abortion. This, it is suggested, would be likely to have very limited impact on the incidence of abortion but would, however, better recognise contemporary medical realities and moral thinking.
  • References (69)
    69 references, page 1 of 7

    2 Some women gained the vote via the Representation of the People Act 1918, with full female franchise achieved in the Equal Franchise Act 1928. The Married Women's Property Act 1882 changed the law to permit married women to own, buy and sell property in their own right.

    3 Smeaton (n 1) [332] Munby J.

    4 The Commissions Act 1965, s 3, sets out the Law Commission's duty with regard to 'the elimination of anomalies, the repeal of obsolete and unnecessary enactments, the reduction of the number of separate enactments and generally the simplification and modernisation of the law'. In its own words, the Commission is charged to ensure that the law is fair, modern, simple and effective, see Law Commission, <www.lawcom.gov. uk> (accessed 11 August 2015).

    5 Law Commission, Reform of Offences Against the Person: A Scoping Consultation Paper (Law Com, CP No 217, 2014) 54. The draft Bill referenced here was published as part of an earlier Consultation exercise, entitled Violence: Reforming the Offences against the Person Act 1861.

    6 For a very small taste of the voluminous literature, see J Finnis and others, The Rights and Wrongs of Abortion (Philosophy & Public Affairs Readers 1974); R Dworkin, Life's Dominion: An Argument about Abortion and Euthanasia (HarperCollins 1993); RP Petchesky, Abortion and Woman's Choice: The State, Sexuality, and Reproductive Freedom (Longman 1984); and J Harris, The Value Of Life (Routledge 1985).

    7 R Siegel, 'Sex Equality Arguments for Reproductive Rights: Their Critical Basis and Evolving Constitutional Expression' (2006-07) 56 Emory LJ 815.

    13 The applicability of such offences in the context of abortion is briefly explored in section 3.

    14 R Cook, 'Stigmatized Meanings of Criminal Abortion Law' in R Cook, JN Erdman and BM Dickens (eds), Abortion Law in Transnational Perspective: Cases and Controversies (University of Pennsylvania Press 2014).

    15 The head of Britain's largest charitable abortion service provider, the British Pregnancy Advisory Service (bpas), reports that '[m]inisters and officials at the Department of Health have repeatedly said to us that they see no need to change the law because it is possible to ''work around'' its deficiencies. This is not good enough. The law as it stands undermines the delivery of safe, evidence-based abortion services.' A Furedi, 'A Shocking Betrayal of Women's Rights' (Spiked, 28 October 2008) <www.spiked-online.com/index.php?/site/article/5845/> (accessed 11 August 2015).

    16 The statutory framework for abortion is contained within the first four pages of the chronologically ordered 270 pages of Blackstone's Statutes on Medical Law (5th edn, OUP 2007), which begins with the OAPA 1861.

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