Into the Hands of the Medical Profession: the Regulation of Abortion in England Ane Wales
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U j-t lili -i '. ;v,r!ji SALLY SHELDON r -;v p . :T $ m •;■ : ili ■*:■ lit INTO THE HANDS OF THE MEDICAL PROFESSION: THE REGULATION OF ABORTION IN ENGLAND ANE WALES Thesis submitted for assessment with a view to obtaining the Degree of Doctor of the European University Institute. Florence, August 1994 EUROPEAN UNIVERSITY INSTITUTE H C i U À . 1 j r SALLY SHELDON ^ j j INTO THE HANDS OF THE MEDICAL PROFESSION: THE REGULATION OF ABORTION IN ENGLAND AND WALES Thesis submitted for assessment with a view to obtaining the Degree of Doctor of the European University Institute. LRU) H C n h d kS SHE Florence, August 1994 "One example has been given to me by a general practitioner of a girt, unmarried, and, therefore, one of the minority of cases of illegal abortion, who came to him about two or three months ago, said she was pregnant, and that she wished to have her pregnancy terminated...She said to him that she had come because of the Bill "ƒ believe that I have grounds under that", she said He told her, "I happen to know the sponsor of the Bill I have looked at the Bill and do not think that under it you have grounds. " He talked to the girl and put her in touch with people who could help her. Her pregnancy is now going through in the normal way. It does not follow that because women desire termination it will automatically be carried out. If we can manage to get a girl such as that into the hands of the medical profession, the Bill is succeeding in its objective. If the Bill had not been before Parliament, if the girl had thought that what she sought was something illegal and was not to be talked about, and had, therefore not gone to the doctor, she might have had the baby after nine months of great anxiety: she might, as often happens have taken some substance, or have inflicted some injury upon herself which might have aborted the baby, admitted her to hospital to take up time in a gynaecological bed, and, possibly, have left her with a permanent injury. Worse than that, she might have been driven to the desperate situation of committing suicide. Worst of all, she might have been among the statistics of the average of 30 women a year who die of operations at criminal hands. None of those things happened, because she thought she would get a good hearing from that doctor. If the Bill encourages that kind of climate, it will have been worthwhile. 1 David Steel, on presenting his Medical Termination of Pregnancy Bill (which was to become the Abortion Act) for its third reading in the House of Commons, H.C. Deb. Vol. 750, Col. 1349, 1967 (13 July). Acknowledgments I would like to thank my two supervisors, Peter Fitzpatrick and Gunther Teubner for their enthusiasm, accessibility, support and constructive criticisms. Carol Smart was also kind enough to read and provide useful comments on a first draft of chapter 6 , and to give me the benefit of more general thoughts on the thesis as a whole. Over and above this, I have been greatly influenced by her published work. One of the advantages of preparing a doctoral thesis at the European University Institute is the existence of a large body of postgraduate researchers and visiting fellows with whom it is possible to discuss work in progress. Eugene MacNamee and John Stanton-Ife have each read the first drafts of more than one chapter and provided useful and incisive comments. I have also benefited from the possibility to talk over ideas with them and others, in particular: Vikki Bell, Mary Daly, Maria Drakopoulou, Lindsay Farmer, Yota Kravaritou, Barbara MacLennan, Katherine O’Donovan and Yvo Volman. Most of all, I would like to recognise the help of Julia Sohrab who has read nearly the whole of this thesis in various stages of preparation with a critical eye and such an attention to detail that I will probably never be able to look at a red pen again without thinking of her! There has also been one major disadvantage to preparing a doctoral thesis at the European University Institute: being situated in Italy is not always conducive to writing a thesis which purports to deal with England and Wales, Various people helped me to guard against the worst effects of this. I would especially like to thank Peter Fitzpatrick, who kept me supplied with a steady stream of articles and references, Leonora Lloyd of the National Abortion Campaign, Robert Barrington, Sue Millns and Michael Thomson. Last, but not certainly not least, I would like to thank the friends who have kept me (semi) balanced and sane during my four years in Italy. In particular: Julia for curries and a mean game of pool; Mary and Barbara for walks in the country and numerous cups of tea; Melanie, Stuart and Beatrijs for trips to the beach; Sue, Carlo and Sami for giving me the possibility to escape to San Casciano at weekends; James for cake and crosswords; Eugene for introducing me to cyborgs and helping with my juggling technique; Wade, Sara and Jez for evenings at the Casa del Popolo; Giulia for correcting my awful Italian; Frédéric for the waltzing lesson and Claire and Eithne for teaching me Irish dancing. 1 would like to dedicate this work to my father, A.T. Sheldon (1927-1990). Sally Sheldon 2 August 1994. ^ ---- -- -------------- itià* CONTENTS Rgp Chapter 1: Regulating Abortion: Controlling Women? 1 A note on power/control 10 C hapter 2: The Abortion Act (1967): A Permissive and ' ‘ Libera tory Reform? 13 1. Introduction: A Permissive Reform? 14 2. The Development of the Law until 1967: "A Reform Whose Time had Come” 19 a) Statute law 19 b) Medical practice and jurisprudence 21 3. The Need for Reform 23 a) Protection of medical autonomy and discretion 24 i) Restriction of professional autonomy 24 ii) Fear of prosecution 24 iii) ‘Legal’, private abortions 25 b) Bringing women from the backstreets to the GP’s surgery ’ 26 i) Reducing maternal mortality 26 ii) The threat to the family 28 iii) Back street abortions: a consistent flouting of the law 29 » 4. The Perceived Benefits of Reform 33 a) Bringing women under medical control ' 34 b) Medical autonomy 36 c) The Possibility to monitor the incidence of abortion: notification and regulation of premises where terminations might be performed 38 6 5 5. Conclusions * 39 , t Chapter 3: The Abortion Act (1967) and its ‘Peripheral Subject* 43 1 . Introduction 44 2. Images of the Aborting Woman 47 a) Woman as minor 48 b) Woman as victim 51 c) Woman as mother 54 ^'j'ri-'nHd^fifl^lW P^^ W w V w W P 3. The Abortion Act: a More Suitable Model of Control 56 a) An assumption of maternity as the normal role for women 5 5 b) Female irresponsibility 5 9 c) Female sexuality 62 4. Conclusions 63 Chapter 4: Abortion, Reproduction and the Deployment of Medical Power 65 1. Introduction 6 6 2. The Woman and Her Doctor 6 6 a) The doctor-patient relationship 6 6 b) The case of the female patient 6 8 3. Medical Control of Reproduction 70 4. Medical Control of Abortion 75 a) Technical control over the performance of abortions 77 b) Decisional control over access to abortions 80 c) Paternalistic control 89 d) Normalizing control in the medical interview 91 5. Conclusion 97 Chapter 5: The Judicial Protection of Medical Discretion 99 1. Introduction 100 2. Female Autonomy in Conflict with Medical Discretion 101 a) Re S (refusal of medical treatment) 101 b) Re W 103 3. The Medical Control of Abortion 104 a) Prosecutions under s.58 OAPA: before the 1967 Act 105 i) R v Bourne 105 ii) R v Newton and Stungo 108 b) Prosecutions under s.58 OAPA: after the 1967 Act 109 i) R v Smith 110 ii) Notification forms and the ‘statistical argument’ 113 c) Injunctions to restrain abortion 115 i) Paton v Trustees of BPAS 116 ii) C v S 118 d) Protection of medical practice: termination by medical induction 120 Royal College of Nursing v Department of Health and Social Security 120 e) Abortion in the absence of consent: minors and the metally handicapped 123 i) R eB 124 ii) T v T and another 125 iii) Re G 126 I f) Abortion in the absence of consent: the unconscious patient 127 4. Conclusion 130 C hapter 6: T he Human Fertilisation and Embryology Act (1990): Winning the Battles but Losing the War? 132 1. Introduction 133 2. The Alton Bill (1988) 1 3 5 3. The Human Fertilisation and Embryology Act: s. 37 (Amendment of law relating to termination of pregnancy). 3 3 7 a) Médicalisation 3 3 9 i) Use of medical knowledges 3 3 9 ii) The adoption of a 24 week upper limit 3 4 3 b) Foetal separation 3 4 -7 4. The Human Fertilisation and Embryology Act, s. 3 (Prohibitions in connection with embryos) 3 5 3 5. Conclusions 3 5 -7 Chapter 7: The Regulation of Antiprogestin Terminations 3 5 9 1. Introduction 3 ^q 2. Background 3 ^ 3 a) The development of RU486 3 ^ 3 b) RU486 compared to conventional abortion techniques 3 6 3 3. The British Licensing of RU486 3 6 4 a) Médicalisation of the political debate 3 6 4 b) Understanding opposition to antiprogestins 3 6 7 i) Anti-choice groups 3 6 7 ii) Pro-choice reactions 3 7 q 4.