Time for legislation on disability and late abortion

Picture of Heidi Crowter, a white woman with Down's syndrome wearing glasses with thick black rims and a pink raincoat and a black top with different coloured flowers on underneath it. A car, a tree and a stone building are behind her, but are blurred.
Heidi Crowter

Last week the High Court in London rejected a suit from a woman with Down’s syndrome, Heidi Crowter (right), to overturn an aspect of the abortion law in the UK which allows a baby to be terminated after the usual 24-week limit if they have a disability, including Down’s syndrome. The judges refused the attempt to overturn this law on the grounds that they could not enter into controversies but could only decide in accordance with the law. Unlike in the US where a law can be overturned on constitutional grounds, in the UK judges can only rule according to the law; while a law can be found to be incompatible with the European Convention on Human Rights or with other international agreements, the law cannot be struck down but it falls to Parliament to amend or revoke it. The case was supported by a number of disability activists, particularly those associated with learning disabilities or other congenital disabilities which are often the reason for termination, such as spina bifida; some feminists agreed with the ruling, with some even claiming that ‘equality’ should be achieved by abolishing time limits altogether.

When the law on abortion was passed, it was remarked that the wording that allowed a foetus with a severe abnormality to be aborted later than the original 28-week limit (subsequently reduced to 24 weeks) was so vague that it could result in someone being aborted for something as trivial as a club foot. Indeed, there was litigation more recently after it was discovered that an abortion was carried out on a foetus at 28 weeks because they had a cleft palate, something that can be rectified with surgery. Some would agree that not defining a severe abnormality is quite correct as the law cannot predict specific situations and the majority of later abortions are on the grounds of very severe, unsurvivable defects and the children involved were often very much wanted and the decision heartbreaking. However, it does seem clear that pregnancies are being aborted because the child will have a perfectly liveable albeit potentially challenging impairment, and although most of these are prior to the 24-week limit (Down’s syndrome is detected at a 12-week scan and spina bifida at 20 weeks, for example), parents have reported that doctors put pressure on them to have an abortion, mentioning it as soon as the diagnosis is made and then on many subsequent occasions.

A friend, a disability activist whose account is private so I will not name her, noted in a long Twitter thread on Thursday that much of the reason for the high abortion rate of people with liveable impairments is that doctors bully and coerce parents into terminations, telling them that it would be in the child’s own best interests to terminate on the grounds that they might never walk or talk or will probably be incontinent, as if these things alone mean they would be better off dead, and that parents were vulnerable to this kind of manipulation because they had often never actually known a single disabled person (this likelihood is increased if most babies with a detectable condition are aborted). She also mentioned that a friend in the US had been told by her obstetrician that he would cease treating her if she did not terminate, and kept his promise. While unconvinced by the case for a ban, she suggested that it be made illegal for doctors to use coercion or misinformation to pressure parents expecting a disabled child to have an abortion. The activist and Instagrammer Nina Tame, interviewed on Woman’s Hour yesterday (Friday), noted that she had been reminded again and again after the son she was carrying was diagnosed with spina bifida (which she also has) that she could terminate, and said that the time limit for abortion in the case of spina bifida should be the same as for other pregnancies.

The ruling has also allowed a number of fringe feminists to push demands for the removal of time limits for all abortions, with one spouting the ridiculous slogan “any woman, any reason, any time”. Does it even need to be explained why there are time limits? It is because in the last few weeks of any pregnancy, a baby is definitely a baby and there is no doubt that this is a human life and a child who can feel, can hear even if not understand, and can learn. At that stage, a pregnancy can be ended, if need be, without the loss of the baby’s life; as most of the pregnancy has already happened and birth by that stage unavoidable, the usual argument that abortion saves a woman who never wanted to be pregnant these difficulties does not apply. There simply is no excuse and no reason to permit a destructive abortion of a baby without a fatal abnormality late in pregnancy; there is no difference between this and killing a child after birth because a child just before and just after birth are the same thing; it is not a metamorphosis. The same clown then explains that:

Having a Disabled baby may change the dynamic for the entire family. There may be appointments, play dates, groups, or routines that are essential for that child. This can mean it’s difficult to juggle the needs of other children, too. A woman must choose if she is prepared to invest 18+ years in raising a child. A partner, or social structure, can provide an environment that supports her choice, but only the woman can decide if she can spend her limited maternal energy on this child, at this time.

So: it’s OK to snuff out a child’s life after it’s indisputably a child and not a mere bundle of cells to save the mother’s “maternal energy” — a bit of pseudo-mystical woo-woo that conveniently ignores the fact that a lot of children, disabled or otherwise, are raised by two parents and not just one — and to avoid inconvenience to other children. This is their brother or sister we are talking about.

The argument for permissiveness here typically involves reference to emotive cases of much-wanted pregnancies being aborted because of a genuine fatal foetal abnormality (such as in this article by Zoe Williams in the Guardian), yet this was not what the case was about; it was about the principle that any disability, including perfectly liveable ones, should be grounds for termination well after the normal time limit, which exists because it is roughly the border between an early foetus and a child who could survive out of the womb, lapses. This principle is, in my view and that of many disabled people, of a piece with the tendency towards leniency for adults who kill their disabled children when they are months or years old (the Tanya Clarence case is a recent example) and the sympathy shown when they kill themselves afterwards.

Nobody is suggesting that a woman be forced through an entire unwanted pregnancy for the principle of equality for disabled people. What is demanded is that, if it cannot be secured in the court, that the law be changed so that no child is aborted after the point of viability because of liveable impairments or defects that can be corrected with surgery. While these are not the majority of late terminations for medical reasons, they happen and they should not. Not all the parents involved will be poor, disabled or single mothers; some will be stable couples who have been told only bad things about what their child’s life may involve by doctors who regard the choice to abort as a no-brainer. While doctors must be required to present a true picture of life with the impairment in question to parents and not regale them with horror stories in order to push them towards termination, and this applies before and after 24 weeks, no child should be aborted late because they might be more costly to bring up or less of a social asset than an able-bodied child might be. And yes, it’s hard for the parents. But sometimes, doing the right thing is hard.

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