Saturday, 10 December 2011

Why 98% of abortions in Britain are now illegal and what it means for doctors

In this blog I explain why I believe 98% of abortions in Britain are now illegal and why doctors who authorise or perform them are committing a criminal offence. This is a long post so if you would like to read my conclusions first then skip to the summary at the end.

Yesterday I took part in a debate on Radio Four’s ‘Today programme’ with Professor Tim Kendall, one of the authors of a new report on induced abortion and mental health, which was published this week by the Academy of Medical Royal Colleges (AMRC).

The rather grandiose full title of the report is ‘INDUCED ABORTION AND MENTAL HEALTH: A systematic review of the mental health outcomes of induced abortion, including their prevalence and associated factors'.

I have reviewed the report both on this blog and in more detail on the CMF website. The overall conclusion (that abortion poses no greater risk to mental health than childbirth for those with unwanted pregnancies) we feel was more strongly stated than the relatively weak evidence base justified.

But my concern here is to unpack my claim on the programme, also reported on the BBC website, that 98% of all abortions in Britain are now technically illegal and what that means for doctors.

Professor Kendall confirmed on the programme, in answer to a question from presenter John Humphrys, that childbirth does not constitute a greater risk to mental health than abortion, and that therefore abortion does not improve mental health outcomes for women with unplanned pregnancies.

I then pointed out that 98% of the 200,000 abortions carried out each year in Britain are being carried out specifically on grounds of protecting women’s mental health. This brought a gasp from Humphrys and an initial denial from Professor Kendall. He then, after being pressed by Humphrys, claimed falsely that the figure was only 95% (it is actually 98% - see below).

I insisted that the figure was 98% and then argued that doctors who authorise abortions in order to protect a woman’s mental health are doing it on the basis of a false belief not supported by the medical evidence.

I then asked why, over 1,000 times every day, British doctors signed legal documents authorising abortions on mental health grounds when in fact there were no mental health grounds for abortion (over 500 abortions are performed each day and each requires two doctors’ signatures to authorise it).

The opening sentence of the executive summary of the AMRC report actually misrepresents the law and perhaps explains the Professor's apparent confusion. It says that ‘the majority of abortions carried out in the UK are done so on the grounds that continuing with the pregnancy would risk physical or psychological harm to the woman or child’.

This is not strictly true (and I wonder actually if the meaning has been deliberately distorted in the report).

Section 1 (1) (a) of the Abortion Act 1967 actually reads as follows:

Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith

(a)that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family…


The key words here are that ‘the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman….’

On abortion authorisation certificates the risk of injury to the pregnant woman and the risk of injury to existing children are split into two parts called C and D as follows:

c) that the pregnancy has not exceeded its 24th week and the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman (Section 1(1)(a))

d) that the pregnancy has not exceeded its 24th week and the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of any existing child(ren) of the family of the pregnant woman (Section 1(1)(a))


The physical and mental health indications in section C are also separately recorded.

So how many abortions are done under each of these clauses? For the answer to this question we need to consult the 2010 Annual Abortion Statistics on the Department of Health website.

Section 2.8 reads as follows:

2.8 In 2010, the vast majority (98%; 185,291) of abortions were undertaken under ground C and a further 1% under ground D (1,635). A similar proportion were carried out under ground E (1%; 2,290). Grounds A and B together accounted for less than a quarter of one per cent of abortions (358). The proportion of ground C abortions has risen steadily, with a corresponding reduction in ground D cases. (See Table 3a.ii.) The vast majority (99.96%) of ground C only terminations were reported as being performed because of a risk to the woman’s mental health. Abortions are rarely performed under grounds F or G.

So in summary 98% of all abortions are performed on the grounds that ‘that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the mental health of the pregnant woman’.

And yet this week’s review tells us that there is no evidence that the continuance of a pregnancy ever involves risk to the mental health of the mother that is ‘greater than if the pregnancy were terminated’.

This raises an interesting question. Are those doctors who authorise abortions on these mental health grounds aware of these facts or not? In other words, when they sign these forms, are they just ignorant of the facts or are they being deliberately disingenuous?

Let’s give them the benefit of the doubt and assume that up until this point every doctor in Britain signing an abortion authorisation form did so ‘in good faith’, genuinely believing that normal pregnancy and childbirth constituted a greater risk to mental health than abortion.

Now, however they will not be able to do so ‘in good faith’ because the true facts are known and have been made public in a major report endorsed by the AMRC and the Department of Health.

If they continue to authorise abortions on mental health grounds from now on they will then be knowingly making false statements on legal documents when previously (giving them the full benefit of any doubt) they were doing so unknowingly.

Is this serious? Well yes because abortions which are carried out outside the bounds of the Abortion Act 1967 are still illegal, as section 5(2) of the Act makes very clear:

‘For the purposes of the law relating to abortion, anything done with intent to procure a woman’s miscarriage (or, in the case of a woman carrying more than one foetus, her miscarriage of any foetus) is unlawfully done unless authorised by section 1 of this Act’

Section 6 of the Abortion Act states that:

‘“the law relating to abortion” means sections 58 and 59 of the Offences against the Person Act 1861, and any rule of law relating to the procurement of abortion’

Many people do not understand that abortion is still a crime in Britain if the exemptions in the Abortion Act do not apply, and as I have argued above they do not currently apply in 98% of cases.

So what do sections 58 and 59 of the Offences Against the Person Act 1861 say?

58 Administering drugs or using instruments to procure abortion.
Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable . . . to be kept in penal servitude for life . . ..


59 Procuring drugs, &c. to cause abortion.
Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanor, and being convicted thereof shall be liable . . .to be kept in penal servitude . . ..


In other words anyone convicted of carrying out an illegal abortion could face life imprisonment.

But what about those doctors who knowingly make false statements on abortion authorisation forms? For that we need to turn to the Perjury Act 1911 Section 5 which reads as follows:

5 False statutory declarations and other false statements without oath

If any person knowingly and wilfully makes (otherwise than on oath) a statement false in a material particular, and the statement is made—
(a)in a statutory declaration; or
(b)in a… certificate, declaration… or other document which he is authorised or required to make, attest, or verify, by any public general Act of Parliament for the time being in force… he shall be guilty of a misdemeanour and shall be liable on conviction thereof on indictment to imprisonment… for any term not exceeding two years, or to a fine or to both such imprisonment and fine.


In other words, making false statements on an abortion authorisation certificate is a form of perjury.

Summary

So where does this leave doctors? Let me sum it up:

1.There is no evidence that continuing with an unwanted pregnancy poses any greater risk to a pregnant woman’s mental health than an abortion does and yet 98% of abortions are authorised on these grounds

2.The doctors who are authorising these abortions are not therefore doing so ‘in good faith’

3.These abortions are therefore unlawful under the Abortion Act 1967 and Offences Against the Person Act 1861 and those doctors who are carrying them out are committing a criminal offence

4.Those doctors who are authorising them are knowingly and wilfully making false statements on legal documents and are thereby committing an offence under the Perjury Act 1911

5.These offences under the Abortion Act and Perjury Act both carry custodial sentences

15 comments:

  1. This is very helpful and clear. It's a classic example of how the reality of the law is not just what the statute book says. Anyone who tried to challenge this by judicial review would hopefully provoke a full debate in Parliament which is what should have happened in the first place before doctors started to change the law for themselves. At least then politicians would have to lay their cards on the table instead of letting in a measure by the back door that's too controversial to debate publicly.

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  2. The report compares people who choose to give birth to people who choose to abort, and found no significant difference in mental health problems.

    The report does not compare people who choose to give birth to people who are forced to give birth against their will.

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  3. The percentage of abortions carried out each year in Britain on grounds of protecting women’s mental health could well be 95%. The evidence you quote says:

    "the vast majority (98%; 185,291) of abortions were undertaken under ground C"

    "c) that the pregnancy has not exceeded its 24th week and the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman (Section 1(1)(a))"

    3% of abortions in Britain may well be carried out on the grounds of protecting the physical health of the pregnant woman, leaving Professor Whitehead's figure of 95% to be correct.

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  4. I haven't read the report, but I'm inclined to believe that Adrian has picked up on a pretty damning flaw. For those of you who are unsure, consider the following.

    The conflation of the scaremongering in the title "98% of abortions in Britain are now technically illegal" with the figure that "98% of the 200,000 abortions carried out each year in Britain are being carried out specifically on grounds of protecting women’s mental health" is to assert that *all* abortions being carried out on mental health grounds are illegal, as there is *never* a mental health risk.

    Still not convinced? Time for a thought experiment.

    A woman has been raped, is pregnant, and is not in any physical danger.

    One of two things seem to be true.

    1) The data as presented above is flawed, and that giving birth to the child may well have a negative impact upon her mental health.

    2) The law (at least, the bits that the article above bothers to refer to) is an ass, and insists that she is legally obliged to give birth to the child, despite not wanting it.

    I propose that the most straightforward, and moral, solution to this problem, is to be clear that any woman should be able to decide what she does or doesn't carry within her own body, and that she need not require consent from any doctor to have an abortion.

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  5. It is a good point you raise about rape producing an unwanted pregnancy. However, the incidence of women seeking an abortion for that reason is quite low (taken from statistics I researched years ago, I don't know the current figures). I think the current law does cater for the needs of these women by including the woman and any other family member's mental health.

    I think the point has been missed here that the research is comparing the *difference* in risk to a woman's mental health between someone choosing to give birth and someone choosing to abort. Carrying a child and then subsequently either giving birth, miscarrying or terminating is a period in a woman's life when she is most vulnerable to mental illness. That's regardless of how a pregnancy ends. The drop in hormones can have a profound effect on a woman's brain chemistry in the postpartum period. My point is that giving birth to a wanted baby is risky for a mother's mental health, and all they've shown is that having an abortion doesn't reduce that risk, it will pose the same risk.

    Take a rape pregnancy case. A woman could carry the baby to term and give the baby for adoption. Or she could abort. In both incidences she would be at risk of postnatal mental health problems simply because she'd been pregnant. Each scenario has challenges for remaining mentally well.

    Abortion alone can bring about depression and anxiety so we must not forget here the reverse is also true - terminating pregnancies can be risky for mental health.

    It seems to me that if we are to allow legal abortions the two doctors who sign them off have a huge responsibility to counsel and interview a woman to find out what really would be best for her mental health on individual grounds. It appears that many have been signed off on the assumption that having to carry to term and give birth to a child that's not wanted must be detrimental to a woman's mental health. But it's not a given that those conditions will make a woman mentally ill. Yes it would be difficult, yes it would be challenging but not necessarily make a woman mentally ill. Giving babies up for adoption could perhaps be looked at as a very viable alternative. That is not easy or without implications for a woman's mental health but it is possible.

    I believe we need these laws to protect the unborn and I'm grateful for them. I don't like how easy it is to have an abortion and I think women should be given more counselling and support about their decision to terminate. Not necessarily so that they choose not to but just so that they know when the time comes they've been given ever opportunity to think things through thoroughly with all available info. I also believe strongly the legal gestation limit needs to be lowered. Babies born at 24 weeks survive. Imagine snatching a child from it's NICU cot and giving it a lethal injection. No different than snatching it from the womb at that age in my opinion.

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  6. Dear Anonymous1

    >> I haven't read the report, but I'm inclined to believe that Adrian has picked up on a pretty damning flaw

    Well, read the report then, and you'll realise Adrian has done no such thing - far from being a flaw, it provides proof, if any were needed, that some doctors are using spurious mental health grounds to justify abortion. The premise on which abortion is granted (in 98% of cases or whatever - let's not quibble, 95, 98, who cares?) is that a woman is at higher risk of developing MH probs if she carries to term, and ergo at LOWER risk if she aborts. In fact the risk is in no way lowered AT ALL. Ergo, claiming an *increased* risk of mental illness with term pregnancies, as compared to aborted pregnancies, is false - and presumably illegal.

    >> The report compares people who choose to give birth to people who choose to abort, and found no significant difference in mental health problems.

    Yes. See above. The debate is about abortion and the grounds for granting it - so these are the only two groups who *can* be compared.

    >> The report does not compare people who choose to give birth to people who are forced to give birth against their will.

    That's kind of irrelevant here, because the report is looking at whether ABORTION will change the outcome for MH risk. It does not. Ergo, pretending that it does is an offence, both professionally (definitely not good medical practice) and legally.

    Btw, is there anyone anywhere who has been forced to give birth against their will? Really?! If so, I'd be very interested to meet these mythical beings!

    PS: Here's the bottomline (from blogpost).

    >> abortion does not improve mental health outcomes for women with unplanned pregnancies.

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  7. Of course there IS one serious flaw in the blogpost - and that is that, AFAIK, no doctor is claiming, when they sign those forms, that abortion will decrease risk of MH probs *globally* or *generally*, in ALL pregnant women. They are only saying that continuing with the pregnancy, in a SPECIFIC isolated patient, MAY cause the woman to develop MH probs - and the way they guage this so-called risk is presumably by registering the patient's distress (if any), and assessing their state of mind at the time of requesting termination. Of course, distress is "normal" and not in itself indicative of mental illness, but I suspect it is *distress* at unwanted pregnancies that is being interpreted as "risk" of MH probs.

    I know the whole process is still seriously spurious and fatally flawed (no pun) - I genuinely doubt that all these women are showing signs of mental illness at the time of presentation, for a start - and that many doctors are simply ticking the mental health box without thinking twice. But even so, it would be virtually impossible to prove that they did not do so in good faith, and pretty much impossible to bring them to book or charge them legally. After all, anyone can deem an *individual* patient to be at risk of this or that, regardless of what the *statistics* show.

    The only way you can disprove it is by insisting that someone with mental health expertise (i.e. a psychiatrist) assess individual patients deemed to be at risk by their GPs - BEFORE okaying their abortions. And we all know that's not gonna happen - MH services already stretched to the limit, blah blah.

    It's a flaw in your reasoning, nevertheless.

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  8. This report is interesting and on the whole I agree with it.
    It would possibly be enhanced if the effect of abortion on women was looked into in more detail, as I know it can have a devastating effect on some women (mentally as well as physically) yet the doctors do not often clearly warn them of this before the procedure.
    I suspect the results would be that carrying the baby to full term would be less damaging mentally than having an abortion for many people.

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  9. Perhaps the real question is why are women allowing themselves to fall pregnant if they do not want a child?

    If we all saw sex as something sacred which was part of married life, there would be far fewer unwanted pregnancies and less need for abortion. What we need to do is educate our children that sex is something special that should be saved, not something that people do "for fun" or casually.

    That is where the root of the problem lies. Sex is not a dirty, bad thing, don't get me wrong. It's something enjoyable that should be kept for marriage and treasured. It breaks my heart that people say things like "times have changed" when so many people are damaged by sexual acts outside of marriage; abortion, broken families, tainted lives.

    As a pregnant woman I am so grateful for the miracle that is happening inside of me right now. I am so blessed to be in a happy marriage and I would have hated to deal with the thought of choosing to terminate my pregnancy because my personal circumstances weren't "ideal".

    I pray that more women and girls will be educated to keep sex as a special part of marriage.

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  10. Adrian - it seems you are suggesting that it is bad for people's mental health not to get what they want?

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  11. Not sure if anyone's still watching this page - but I'd be really grateful if someone could confirm or deny something for me.

    I had a look at the abortion authorisation form. Found it here: http://www.bpas.org/bpashealthcare/Referral%20Forms

    It doesn't seem to require doctors to indicate physical or mental health under section C. Peter says this is recorded separately but I don't see how. I thought that doctors were mainly using section C on the grounds of risk to physical health as many doctors would accept that continuing with a pregnancy poses a greater risk to the physical health of the mother than an abortion, simply due to the risks of a normal pregnancy vs very low risks of a abortion in the UK.

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    1. This comment has been removed by the author.

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    2. Just had a look at this.

      According to the Department of Health website the form to which you linked (HSA1) is not the form required to be submitted to the D of H. See:

      https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/204075/Introduction_to_Completing_Abortion_Forms.pdf

      The form required by the D of H is HSA4. This does require a split between mental and physical health grounds. See:

      https://www.gov.uk/government/publications/abortion-notification-forms-for-england-and-wales

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  12. I came across this blog because I was doing some research on perjury.

    Because my interest was not primarily on the subject of abortion I have not read the whole blog and have read only a few of the comments. I therefore don't know if this comment has already been made but I feel that I should offer it.

    As far as I understand it, perjury involves making a statement that you know or believe to be false. The fact that there is no evidence to support an idea does not automatically mean that it is false, and even if it is actually false that doesn't prevent someone from believing that it is true.

    So, unless there is clear evidence that the idea is actually false and the person is fully aware of this evidence, then he is entitled to believe what suits him – even though he may be wrong - and expressing that belief would not constitute perjury as long as he genuinely believes what he is saying.

    In this situation only the doctor knows what he believes and no-one can prove that he does not genuinely believe what he claims to believe. I therefore think that a charge of perjury could not be made to stick in such situation.

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