Abortion, Autonomy and Prenatal Diagnosis

AuthorEmily Jackson
Date01 December 2000
Publication Date01 December 2000
London School of Economics, UK
The principle of patient self-determination has assumed central importance in British
medical law in recent years. This article considers whether this increasingly strong
commitment to patient autonomy has any resonance for abortion law. In particular,
this article explores the possibility that the priority currently accorded to autonomous
decision making may be in tension with the Abortion Act’s requirement that a
woman’s reasons for seeking to terminate her pregnancy be judged acceptable by two
medical practitioners. Moreover, interest in the moral legitimacy of a woman’s reasons
for wanting to terminate her pregnancy seems to be intensifying. Concerns arising
from the increasing availability of precise prenatal tests have led to suggestions that
access to abortion should be further restricted in order to prevent the cavalier use of
abortion for reasons that might seem trivial or misguided. Using abortion following
prenatal diagnosis as an example, this article considers whether it is anomalous for the
common law’s vigorous protection of an individual’s freedom to make irrational or
morally objectionable choices about his or her medical treatment to coexist with
demands for further restriction of the acceptable grounds for abortion.
IN RECENT YEARS there have been several attempts to move beyond
the unproductive moral and political gridlock that has tended to domi-
nate discussion of abortion (Dworkin, 1993; Robertson, 1994). Ronald
Dworkin, for example, has suggested that with the exception of a small
number of extremists, there is in fact broad agreement that while fetal life
deserves respect, its protection cannot take priority over the rights of the
pregnant woman (Dworkin, 1993). And Dworkin’s formulation appears to
be an accurate encapsulation of the position at common law, and possibly
under the Human Rights Act 1998:1namely that a fetus cannot be protected
at the expense of the pregnant woman’s bodily autonomy. But if it is now
settled law that a fetus is not a legal person,2and that its interests cannot
SOCIAL &LEGAL STUDIES 0964 6639 (200012) 9:4 Copyright © 2000
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
Vol. 9(4), 467–494; 014952
01 Jackson (jl/d) 30/10/00 2:44 pm Page 467
trump those of the pregnant woman, then there may be some tension between
developments in the common law and the Abortion Act 1967.
Central to the Abortion Act 1967 is the requirement that a woman must
be able to establish that an abortion is necessary in order to protect her health
or that of her existing children, or to prevent the birth of a child who would
suffer from severe abnormalities. A woman’s access to abortion is therefore
conditional upon her reasons for wanting to terminate her pregnancy. In the
parliamentary debates that led to the passing of the 1967 Act the chief strat-
egy of the reformers was to argue that abortion should be available where the
birth of an unwanted child would jeopardize the health and well-being of the
pregnant woman and her family (Sheldon, 1997a). The resulting legislation
converted this argument in favour of legalization into a condition, so that a
woman is not entitled to terminate her pregnancy unless she can establish that
her health, or that of her children, would be injured by carrying an unwanted
pregnancy to term.
The idea that the legitimacy of an abortion depends upon its purpose still
commands widespread support. And refinements in prenatal diagnostic tech-
niques have intensified concern that abortion could be used for reasons that
some would consider to be trivial or grounded in prejudice. As I shall discuss
below, there are those who would restrict the routine abortion of abnormal
fetuses, and some feminists have advocated using the law in order to elimi-
nate sex-selective abortion (Holmes, 1995; Warren, 1999). Underlying these
arguments is the assumption that a woman’s reasons for wanting to terminate
her pregnancy are a matter of legitimate public interest and, furthermore, that
a woman’s access to abortion should depend upon whether or not those
reasons are acceptable.
My argument is that judging a woman’s reasons for seeking to terminate a
pregnancy may be inconsistent with the priority currently granted to the
common law principle of self-determination. In recent years, the primacy of
patient autonomy has emerged as a central theme within medical law, and it
now seems uncontroversial that, in the context of a refusal of medical treat-
[a] medical practitioner must comply with clear instructions given by an adult
of sound mind as to the treatment to be given or not given . . . whether those
instructions are rational or irrational.3(my emphasis)
So an essential feature of this respect for a patient’s right of self-determination
is that it extends to decisions of dubious moral quality. In this article I intend
to consider whether the growing emphasis upon an individual’s right to make
irrational choices about his or her medical treatment has any implications for
the regulation of abortion. Is the right to make foolish or disturbing decisions
confined to the refusal of medical treatment, or might it have a broader scope?
The liberal conception of autonomy is not necessarily limited to a right to
be free from unwanted intrusion, but instead is rooted in the idea that indi-
viduals should be able to pursue their own goals according to their own
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