Tensions in the Regulation of Abortion in Britain

DOIhttp://doi.org/10.1111/j.1467-6478.2003.00269.x
Publication Date01 Dec 2003
AuthorEllie Lee
JOURNAL OF LAW AND SOCIETY
VOLUME 30, NUMBER 4, DECEMBER 2003
ISSN: 0263-323X, pp. 532±53
Tensions in the Regulation of Abortion in Britain
Ellie Lee*
This article discusses policy and practice in abortion provision, paying
particular attention to the provision of counselling before abortion. It
discusses the way the Abortion Act 1967 constructs the woman seeking
abortion, the reasons for the development of a policy about abortion
counselling in the 1970s, and that policy's relationship to the
assumptions about women underlying the statute. The ways in which
policy has developed since 1977 are considered, and how policy and
practice have come to view women seeking abortion in a way that
contrasts with the construction of them that emerges from the law.
Thus, the article argues, given that the 1967 Act and other rules that
regulate abortion provision seem to rest on contradictory assumptions,
the law should be reformed in line with policy and practice.
INTRODUCTION
In this article I argue that the socio-legal case that the law on paper and in
practice can differ significantly is given weight by the current regulation of
abortion in Britain. I discuss policy and practice in abortion provision,
paying particular attention to the provision of counselling before abortion.
Drawing on feminist legal scholarship about the 1967 Abortion Act, I first
discuss the way the 1967 Act constructs the woman seeking abortion. I then
discuss the reasons for the development of a policy about abortion
counselling in the 1970s, and that policy's relationship to the assumptions
about women underlying the statute. The ways in which policy has
developed since guidelines about counselling were first issued in 1977 are
considered next. I show that policy and practice have come to view women
seeking abortion in a way that contrasts with the construction of them that
emerges from the law. I conclude that the 1967 Act and other rules that
regulate abortion provision rest on contradictory assumptions, and that it
532
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*Department of Sociology and Social Policy, University of Southampton,
Southampton SO17 1BJ, England
Thanks to Emily Jackson and David Paintin for their patient assistance with this paper.
would be beneficial to make these contradictions the subject of public
debate, and for the law to be reformed in line with policy and practice.
THE GAP BETWEEN ABORTION LAW AND PRACTICE
British abortion law cannot be considered liberal legislation.
1
The wording
of the statute makes no reference to freedoms and rights for women who
want to terminate a pregnancy. Indeed, in making the agreement of two
doctors that an abortion is needed by the woman a condition of access to
abortion throughout pregnancy, Britain has one of the formally most
restrictive abortion laws of those countries where abortion has been
legalized. Yet around 180,000 abortions are performed in England and
Wales annually in NHS hospitals and approved abortion units (primarily
British Pregnancy Advisory Service and Marie Stopes clinics) and current
statistics show that the abortion rate has increased each year since the mid
1990s. These figures confirm Sheldon's observation that since the Abortion
Act 1967, the interpretation of it, `. . . appears to have become gradually
more liberal, and access to safe, legal abortion services has, as a result,
greatly improved.'
2
This paper investigates this apparent disparity between
law and practice.
A socio-legal approach suggests that `gaps' of this kind are a typical
feature of the law. While some visions of the law represent it as complete
and comprehensive, with no disparity between its terms on paper and its
existence in `reality', a socio-legal perspective contends that this is not the
case.
3
Studies by socio-legal scholars have usually shown how the rights and
entitlements that the law is supposed to provide are in practice often
unavailable.
4
The issue of abortion is interesting in this regard in that it
appears, in contrast, that its availability in practice has outpaced that which
the law might appear to allow. In this instance the `socio-legal gap' seems to
benefit women by allowing them greater access to abortion in practice than
the statute might appear to provide, at least in early pregnancy.
5
Much scholarship that has examined the evolution and development of the
1967 Act shows that, regardless of the current availability of abortion, the
533
1 S. Sheldon, Beyond Control, Medical Power and Abortion Law (1997) ch. 2.
2 id., p. 2.
3 D.J. Galligan, `Introduction' in Socio-Legal Studies in Context: The Oxford Centre
Past and Future, ed. D.J. Galligan (1995).
4 id.
5 Once women get past the first trimester of a pregnancy, there is evidence that it is
becomes less easy to access an abortion, largely because of a lack of consultants who
are willing to perform these procedures. This issue may be worth investigating too,
because formally the law makes no distinction between abortions at any point up to
24 weeks gestation, thus creating another kind of gap between law and practice.
ßBlackwell Publishing Ltd 2003

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