Introduction
The matter of abortion has been at the forefront of religious, moral and ethical debate, even prior to the 19th Century, when it was criminalised in the United Kingdom. Despite this, Scottish MP successfully introduced the Abortion Act in 1967, providing a defence to “registered medical practitioners” who carried out the procedure in accordance with particular criteria. This model has been recreated by many other countries and states in their relevant legislation; perhaps most similarly in Queensland and Tasmania, Australia, and thus a comparison will be drawn between these on points of law. Moreover, in recent years, the medical advancements relating to abortion have called into question the validity and morality of this Act, particularly concerning the ambiguity of critical terminology within it. This essay will consider the extent to which Scottish Law on Abortion can be considered morally satisfactory and valid, confined to analysis of the terms ‘in good faith’ and conscientious objection’ found within the Abortion Act 1967.
“In Good Faith”
Section 1 of the Abortion Act vaguely explores the moral parameters by which abortions must legally be carried out, noting the ‘good faith’ of a medical practitioner’s judgement as the standard for this. ‘Good faith’ can be defined as ‘honesty or sincerity of intention,’ though this is somewhat dissatisfying as a point of law, as it is highly subjective and lends too much discretion to doctors’ clinical judgement. Nevertheless, Sheldon, upon consideration of Parliamentary Debates prior to the introduction of the Act, indicates that this degree of flexibility was intended by Parliament. This conclusion stems from their discussion contrasting the doctor of high professional standing with ability to operate with their “own ethical and medical standards” to the foolish or even careless pregnant woman. This prejudicial viewpoint appears to have been amorally translated into the reading of this Act, purposefully instilling an excessive amount of freedom to doctors’ professional opinions, as opposed to prioritising the women who are the real focus of this matter.
Moreover, in 2016 there were 11,841 abortions carried out in Scotland on the basis of s1(1) of the Abortion Act. A significant contributory factor to this statistic may be credited to the leniency of the ‘good faith’ condition. As abortion methods have undergone notable modernisation in recent years, women are increasing being “advised that abortion is generally safer than continuing a pregnancy to term.” This has rendered the requirement of ‘good faith’ as insufficient given that, in theory, s(1)(c) of the Abortion Act, which states that “good faith can be formed when the continuance of the pregnancy would involve risk…greater than if the pregnancy were terminated…” will always be satisfied.
Nevertheless, this unsatisfactory and ambiguous terminology is not confined to UK abortion law, but rather is considered throughout Australian State Law, specifically in the region of Queensland. In Queensland, abortions are regulated in accordance with the Criminal Code 1899, which criminalises the procedure but provides grounds by which doctors can lawfully administer it, and thus a defence if prosecuted for the procedure. As with the Abortion Act, the Criminal Code determines ‘good faith’ as one of the grounds for claiming this defence. Despite this similarity, there is significantly less weight placed on this term in Queensland Law, as it is but one of many provisions under which the defence for termination of pregnancy is allowed. On the other hand, UK law places all further conditions under the assumed existence of ‘good faith,’ without which there is no legal abortion. Nonetheless, their law is equally guilty of placing too much weight on the protection and availability of defence for practitioners, and in doing so, neglect to make fully satisfactory abortion laws for the protection of women.
Furthermore, there is a high degree of evidential burden that arises in prosecuting abortion cases, requiring evidence ‘beyond reasonable doubt’ that a doctor’s decision was made in bad faith. It can be considered that this condition gives practitioners an excessive degree of flexibility in their judgement, within their interpretation of the good faith conditions, without real threat of consequence or conviction. This is evidenced in the minimal number of prosecutions against doctors in good faith abortion cases. In this respect, the law is morally disappointing, failing to prioritise the well-being of women over the restriction of practitioners’ work.
However, despite similarities, this statistic is not consistent with Queensland, where their greater restrictions on what qualifies as ‘good faith’ allows for a greater prosecution rate, which is morally superior as it can be seen as more supportive of the concerned women, rather than the practitioners. Nevertheless, in 2003 the law on this was developed in order to provide a defence to any person performing an abortion in good faith, by any method of termination. This is perhaps a less reasonable provision of the law, as it grants the permission to non-professionals to attempt to administer the abortion, as long as they have the requisite intention which indicates the insufficiencies of the ‘good faith’ requirement in legislation.
Nevertheless, a better model of the ‘good faith’ requirement can be found in Tasmanian Law. This region of Australia takes a relatively liberal approach to abortion, as lawful under the terms of the Reproductive Health (Access to Terminations) Act 2013. It was on the basis of this act that the case of R v Wald was raised. In this case, Judge Levine interpreted the existing legislation to determine what ‘good faith’ actually warranted. His ruling found that it qualified good faith when a doctor formed an honest belief on reasonable grounds that the procedure was necessary for the woman. This established a golden rule of statutory interpretation to be the legal precedent for the current abortion law, which is both considerate of women and gives a satisfactory explanation of the otherwise vague terminology.
“Conscientious Objection”
Section 4 of the Abortion Act provides grounds by which medical practitioners are not necessarily obliged to terminate pregnancies, referred to as a conscientious objection. This is considered an “independent reason for declining to give patients what they seek” and is often claimed for personal, moral, ethical or religious beliefs which condemn the practise of terminating pregnancies. This can be seen as reasonable element of the act as it ensures women receive the best possible degree of care, which they may not by practitioners who feel distressed by the procedure. Furthermore, it is not discriminatory towards those of different religious and personal beliefs, which would make it a morally satisfactory contribution to Abortion law yet it is not an unconditional right for medical staff.
This is evidenced in s4(2) of the Act which expands that “nothing… shall affect any duty to participate in treatment which is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman.” In this case, clinicians are expected to pursue a professional and non-judgemental approach to the patient as far as possible. This component of the exemption clause seeks to clarify the extent of conscientious objections, but it does so at the expense of a medical practitioner who may be disturbed by the procedure, as well as a patient who may receive an inferior treatment.
The concept of a conscientious objection is not restricted to Scottish abortion Law, but rather, is also an element in Tasmanian abortion law as of 2013. Section 6(1) of their Reproductive Health (Access to Terminations) Act echoes the exemption clause within the Abortion Act, indicating that “No individual has a duty…to participate in a treatment…if the individual as a conscientious objection to terminations.” This is perhaps even more satisfactory than that of British Law, as it set out more distinct terms, primarily the duty to perform the procedure in emergency circumstances, as well as the role of nurses in assisting. Whilst it is no more or less restrictive than that of Scottish abortion law, the clarity of wording indicates the scope of this clause and as such keeps the majority of law-making power in hands of the legislature, rather than the interpretation of judges, jurors and doctors.
An English case brought against the Salford Health Authority further questioned the scope of this objection, regarding whether it applied to those in administrative positions; such as secretaries, who objected to the treatment, but it was held that they did not qualify for this. This principle was clarified in the judge’s literal interpretation of the Act’s wording of ‘participate’ in this case. It was considered that “The regulations do not appear to contemplate that the signing of the certificate would form part of the treatment for the termination of pregnancy”. The subsequent ruling determined that staff could only claim exemption from their role through conscientious objection under Section 4 if they were partaking in the actual administration of the treatment. This statutory interpretation was later considered in the case of Doogan v Greater Glasgow and Clyde Health Board, in which supervisory catholic midwives were not allowed exemption from their roles on religious grounds. The Lord Ordinary reiterated that ‘participate’ did not extend to all those in the chain of causation. These interpretations of the Act narrowed the span of what was to be allowed under ‘conscientious objections,’ thus resulting in an inadequate and prejudicial reading of law which failed to accommodate for those with opposing religious views.
Conclusion
Overall, it can be concluded that Scottish Law on Abortion is not completely satisfactory. Whilst it provides the framework within the Abortion Act 1967 to be morally agreeable, many of the provisions are incomplete, with little expansion on the scope of the terms allowing interpretation to be made by external individuals. Nevertheless, these terms are similar to those found in abortion laws throughout Australia, particularly in Queensland and Tasmania, though these have been written in such a way that leaves less opportunity for statutory interpretation. On the whole, whilst it can be considered that although the Scottish law on abortion has improved significantly in recent years, it is still subject to ambiguity which makes it considerably unsatisfying.