The Law of Abortion and Necessity

Publication Date01 Sep 1938
AuthorD. Seaborne Davies
DOIhttp://doi.org/10.1111/j.1468-2230.1938.tb00398.x
I
26
MODERN
LAW
REVIEW
Sept.,
1938
THE
LAW
OF
ABORTION
AND
NECESSITY
HE recent trial at the Old Bailey on a charge of abortion
of Mr.
A.
W.
Bourne, one of the foremost obstetric surgeons
and gynaecologists in London, aroused widespread public
attention and raised legal points of considerable social importance.1
The main facts
of
the case were
as
follows.
A
girl
of
fourteen
had been the victim of an atrocious rape. The organiser of a
Schools Care Committee took her to a Dr. Joan Malleson, who
wrote to
Mr.
Bourne stating that she,
as
well
as
the police surgeon,
the doctor
at
her work, and the school doctor, all considered that
cwauge
should
be
allowed and suggesting that Mr. Bourne
should perform this operation on the girl.* She reported that the
parent9 “could not possibly let her
go
through” with the preg-
nancy and described the girl
as
normal and healthy
“and
in
medical terms there is nothing to
be
said.” In the light of the
evidence at the trial, and, indeed, of the statement in
Dr.
Mal-
leson’s letter that “some psychiatrist might
be
prepared to sponsor
this operation,”
it
is clear that the reference to the healthy con-
dition of the girl did not imply that the doctors had no fears
as
to
the effects upon the general and, in particular, upon the mental
health of the
girl
if
the pregnancy were allowed to take its course.
Mr. Bourne replied that he would
‘be
delighted’ to admit the
girl
into St. Mary’s Hospital and to
cuvette
her. He said,
“I
have done
this before and have not the slightest hesitation in doing
it
again.
.
. .
I
have said that the next time
I
have such an opportunity
I
will
write to the Attorney-General and invite him to take action.”
The parents consented to the operation on condition that the
matter was kept secret, and the
cwe#uge
was successfully
done.‘
At
the trial, the chief medical witnesses were Dr. Malleson,
Mr.
Bourne himself, Mr. Gilliatt, surgeon at the Samaritan Free
Hospital for Women, and Lord Horder, and they all stated prac-
tically the same point of view. Whilst’admitting the existence
of
some variation of opinion within the medical profession itself, they
1
The account of the trial
is
taken from
Tbc
Times
Newspaper, 19th and
20th
July,
1938.
*
The only dissentient appears to have
been
a doctor ,yho admitted the
girl
into St. Thomas’s H-ital, whom
Dr.
Malleson thought must
be
a
Catholic.”
“He
took
the conveabonal standpoint that the cbild might
be
a
future
Prime
Minister of England. He
ah
said
that
sometimes
girls
lead men
on.”
*
She described them
as
‘‘SO
respectable that they do not know
the
address
of any abortionist.”
4
The parents’ wish for secrecy prevented
Mr.
Bourne from
fulfilling
his
intention and it was stated that it
was
through
no
breach of faith
on
his
part
that
the matter became public.
T

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