Moving beyond abortion law (Part 1): Medical surveillance

As I go through my MA,  I am encountering many ideas  which are becoming integral to my activism and politics, so I am going to write a series of posts which make some of those ideas clear and accessible. This first one is about how abortion law in the UK actually works, and how it regulates women as much as liberates them. Part 2 looks at why changing abortion law might  not actually increase access to abortion services, and why the cultural narrative about abortion needs to change.

There is a traditional narrative which holds that to increase women’s freedom, the law must be changed and liberalised until we achieve the rights we desire. This narrative equates liberal laws and rights with freedom; however, in the case of abortion law, what appears to be liberal can in truth be regulatory, and what appears a ‘right to choose’ may not exist at all.

The decision of whether or not to have an abortion in the UK does not lie in the hands of the pregnant woman but in those of the two doctors whose signature is required for the procedure. From the Abortion Act itself:

(1)Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith—

(a)that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or

(b)that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or

(c)that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or

(d)that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.

In some respects, this law is incredibly permissive. It is easily proven that continuation of pregnancy is more risky than a termination for women in terms of both physical and mental health: more women die in childbirth than from abortion procedures each year, and any indication that a woman’s pregnancy is unwanted suggests her mental health would be at risk if forced to continue with it.* It is therefore very easy for doctors to grant abortions under these regulations.

However, you’ll note that the Act emphasises  the requirement to see numerous doctors. Often women seeking abortions must also see a counsellor. This means that women’s reproductive freedom is heavily regulated by the state; it isn’t enough for a woman to want an abortion, a woman must have an acceptable reason for having one. Maxine Lettimer did a study which found that even if it didn’t reflect their lives, women seeking abortions framed their decisions in the terms of the Abortion Act in order to appear to be having an ‘acceptable’ abortion to the medical professionals they encountered.**  This  means that despite appearing liberal and permissive, UK abortion law actually places women’s bodies under subtle but pervasive medical surveillance.

This is something which many people may not realise, as the language of science and medicine is often seen as neutral and apolitical. Actually, this control of  women’s bodies and their fertility has been a concern for medicine and the law for centuries.  The female body has been conceived of by those male-dominated institutions as a mysterious, unpredictable and occasionally dangerous entity; although women have been entering the legal and medical professions for many years now, this cultural attitude still exists. For example, Victorians believed women were controlled by their reproductive cycles; how many times have you heard comments about PMS, hormones, and biological clocks affecting women’s decision-making?

In law, women’s bodies have been treated paradoxically as both dangerous and weak, and their bodily autonomy has been threatened by the law as much as it has been protected. The Contagious Diseases Acts 1864-69 saw women suspected of prostitution (and therefore potentially spreading VD) subjected to intrusive examinations and locked up for up to a year. In rape trials, defence lawyers seek to redefine women’s own accounts of their autonomy by suggesting that violation of women’s bodies can be ‘disproven’ by evidence of previous consent and what the victim wore.  Abortion law continues this legal regulation of women’s bodies by deferring to doctors, not the pregnant woman herself, to determine whether she should continue to nurture a foetus or not. This can never be acceptable for feminists, and we should be wary of a legal framework that allows that to happen.

There is a difficulty for feminists in protesting the power remaining in doctors’ hands, however.  Judges’ deferral to medical opinion when abortion cases reach the courts has been to the advantage of women who want abortions but whose parents or partners are attempting to prevent the procedure. There have been several unsuccessful cases of fathers or husbands seeking to legally prevent their wives’ abortions (see Paton v. BPAS and C. v. S.), in which judges have cited the doctors’ approval of the wives’ abortions (not the women’s desire to abort the foetus in their body) as the deciding factor.

Therefore, operating within this legal framework is unlikely to yield feminist results. However, if we consider a feminist aim to be abortions on request and “as early as possible, as late as necessary,” then it is important to consider how much achieving that aim would actually increase women’s reproductive freedoms. Societal and cultural factors are equally (perhaps more) important in forming narratives around abortion and women’s bodies, and formal recognition of a right does not get rid of real-life (substantive) obstacles that might hinder women even if the right to abortion on request were granted them. It is to these factors that feminists must turn to in order to achieve their aims.

In part 2, I look at why changing abortion law might  not actually increase access to abortion services, and why the cultural narrative about abortion needs to change.


*For physical effects of childbirth vs. abortion, see Elizabeth G. Raymond and David A. Grimes, “The Comparative Safety of Legal Induced Abortion and Childbirth in the United States” Obstetrics and Gynecology  119:2 (part 1), (February 2012). For mental health of abortion ‘turnaways’ vs. women granted abortion, see M. Antonia Biggs et al., “Mental health and physical health consequences of abortion compared to unwanted birth,” presented at the American Public Health Association meeting on 30/10/12,

**Maxine Lettimer, “Dominant Ideas versus Women’s Reality: Hegemonic Discourse in British Abortion Law” in Abortion Law and Politics Today ed. Ellie Lee (Hampshire and New York, N.Y: Palgrave, 1998).