Ethical Judgments

Re-Writing Medical Law

Stephen W. Smith, John Coggon, Clark Hobson, Richard Huxtable, Sheelagh McGuinness, José Miola, Mary Neal, Stephen W. Smith, John Coggon, Clark Hobson, Richard Huxtable, Sheelagh McGuinness, José Miola, Mary Neal

• Publisher: Hart Publishing
• Year: 2017
• ISBN:
  9781509904143
• Edition: 1
• Topic: Law
• Subtopic: Medical Law
• Index: Law

This edited collection is designed to explore the ethical nature of judicial decision-making, particularly relating to cases in the health/medical sphere, where judges are often called upon to issue rulings on questions containing an explicit ethical component. However, judges do not receive any specific training in ethical decision-making, and often disown any place for ethics in their decision-making. Consequently, decisions made by judges do not present consistent or robust ethical theory, even when cases appear to rely on moral claims.
The project explores this dichotomy by imagining a world in which decisions by judges have to be ethically as well as legally valid. Nine specific cases are reinterpreted in light of that requirement by leading academics in the fields of medical law and bioethics. Two judgments are written in each case, allowing for different views to be presented. Two commentaries - one ethical and one legal - then explore the ramifications of the ethical judgments and provide an opportunity to explore the two judgments from additional ethical and legal perspectives. These four different approaches to each judgment allow for a rich and varied critique of the decisions and ethical theories and issues at play in each case.

R v Bourne [1939] 1 KB 687

Facts

Mr Bourne, an obstetric surgeon, performed an abortion on a 14-year-old girl who became pregnant following a rape. Mr Bourne was charged with using an instrument with intent to procure a miscarriage, contrary to s 58 of the Offences Against the Person Act 1861. Counsel for Mr Bourne argued that the procedure was performed ‘for the purpose of preserving the life of the mother’ and a medical psychologist gave evidence suggesting that the continuance of the pregnancy would leave the girl ‘a mental wreck’. In summing up, Macnaghten J directed the jury that Mr Bourne was entitled to be acquitted, unless the Crown had proved to them that Mr Bourne did not perform the procedure in good faith for the purpose of preserving the life of the girl.

Outcome (Central Criminal Court): Not guilty verdict

Judicial Makeup Macnaghten J.

Appellate History None.

Keywords criminal law, procuring miscarriage, defence, OAPA 1861.

Judgment 1—R v Bourne [1939] 1 KB 687

MCGUINNESS J (SHEELAGH MCGUINNESS)

[1] The case before you is a difficult one. It raises questions concerning the role of law, social justice, the rights of women, the role of medicine, and indeed the sanctity of life. You have heard the evidence and the speeches of counsel, it is now my duty to sum up the case to you and to give you the necessary directions in law. In this summing up I am highlighting some of the key issues upon which you, the jury, must reflect.

[2] Mr Bourne has been charged under s 58 of the Offences Against the Person Act 1861. The initial indictment did not include the word ‘unlawfully’. The defendant challenged this omission and asked that the indictment be amended in accordance with the wording of the Act. As I have stated already I agree that in omitting this word the police erred. If I am wrong about this then there is the Court of Criminal Appeal to put the matter right. This means that it is not sufficient that the prosecution prove to you that Mr Bourne performed a termination on Miss X. Rather they must prove that he did so unlawfully. To summarise this in a different way you must consider whether Mr Bourne acted other than in good faith with the purpose of preserving the life of Miss X.

[3] Before continuing, I believe it is worth emphasising an inevitable observation on the function of the law in this area. The law on abortion as it currently stands is inoperable. The Offences Against the Person Act 1861 has proven impossible to police. Cases that come to light tend to be those that involve not just the termination itself but also the death or injury of the pregnant woman involved. For example in R v Sasun [1920], a doctor, Dr Devi Sasun, who was known to provide abortions, was sentenced to 10 years penal servitude. There was evidence that Dr Sasun had safely carried out hundreds of terminations. His prosecution resulted from the unfortunate death of Miss Elsie Wood following such a procedure. The case can be distinguished from the current circumstance in that Miss Wood died and Dr Sasun attempted to cover up his actions. The case before you is unusual. Miss X’s life has not been endangered by the procedure but rather saved.

I. Facts of the Case

[4] This case involves criminal activities that are beyond the scope of our consideration here. A 14-year-old girl, who we will refer to as X, was brutally raped by a number of men. As a result of this, she found herself to be pregnant—something that, given the horrific nature of the crime committed against her, was impossible for her to bear. X’s parents contacted the recently formed Abortion Law Reform Association to seek help for their daughter. They were concerned about what they felt the likely impact of continuation of pregnancy would be on their daughter—specifically it was felt that the continuation of pregnancy would render X a physical and mental wreck. They knew of the possibility of termination of pregnancy but as Dr Joan Malleson stated in her letter to Mr Bourne, which was read before you, ‘the girl’s parents are so respectable that they do not know the address of any abortionist’.

[5] Tragic though the situation is, you must not allow it to impact on your assessment of the case before you. While the path that led to X’s tragic circumstance may have some bearing on your assessment, it must be a side consideration only. Your primary concern is with what happened in the wake of X’s parents contacting the Abortion Law Reform Association. Dr Malleson, who is a member of the Abortion Law Reform Association, duly contacted Mr Aleck Bourne, a clinician of good standing who was known to be sympathetic to termination of pregnancy in situations such as that in X’s case. It was Mr Bourne’s subsequent actions, causing the termination of the pregnancy, which led to a most grave criminal charge being brought against him.

[6] The following facts are not in dispute and are accepted by all parties to these proceedings. On the 1st of June 1938, X was admitted to hospital under the observation of Mr Bourne. Subsequently on June 14^th, Mr Bourne performed the termination and consequent to this was arrested and charged under s 58 of the Offences Against the Person Act 1861.

II. Relevant Law

[7] Two statutes set out the framework for your considerations today. The first of these is the Offences Against the Person Act 1861. Mr Bourne has been charged under s 58 which states “whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony”.

[8] The second statute is the Infant Life Preservation Act 1929. Section 1(1) states that “no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother”. The latter statute is relevant to the extent that it provides for lawful ‘destruction’ of the “child capable of being born alive” where the life of the pregnant woman is endangered. Given this it seems logical that termination would also be permissible when the foetus is at a much earlier stage of gestation. Indeed, medical necessity pre-dates the 1929 Act; in the case of R v Collins [1898] 2 Brit. Med. J. 59 it was accepted that:

It could well be understood that there were cases where it was necessary in order to save the life of a woman, that there should be forcible miscarriage, and a properly qualified doctor had to say when that time had arrived.

III. Context

[9] Members of the jury, the case before you cannot be considered other than within its complex and controversial social context. Abortion is available in this country. Notwithstanding the tricky ethical issues, as recently detailed in the Report of an Investigation into Maternal Mortality, it is a procedure more widely carried out than publicly acknowledged. So long as unplanned pregnancies occur, women will face an unwelcome choice. A choice between procuring the services of whatever abortionist they can afford or continuing with the pregnancy. From the aforementioned Report it is also clear that some women are more able to access safe abortion services than others. We know that women who have the financial means and connections are able to have terminations in doctor’s surgeries. Those without the knowledge or finances to pay as much for these services, often working class families like X’s, must navigate the murky world of so-called ‘back street’ abortions. And sadly we know that these women face greater risk and reality of death or serious injury.

[10] For those unfortunate women who need to have a termination the first thing that happens is that they seek the services of illicit practitioners. The health impacts of so-called ‘back street’ abortions are well known, and have been for decades now. Indeed the negative health impacts have contributed to a ‘maternal health crisis’ in this country and led to the creation of the Royal College of Obstetricians and Gynaecologists in 1929. The current legal framework doesn’t stop these women from having terminations but rather impacts to the extent that they cannot be assured of finding or cannot afford a practitioner of Mr Bourne’s expertise and good standing.

[11] The alternative, which is often overlooked, is that of women having more children than they can physically or financially bear. Sadly, this too often leads to injury or death, as well as poverty and social exclusion, particularly among working-class women. Women with connections and finances are able to avoid this situation.

It is a well-known fact that abortion is available as is evidenced in Miss X’s parents contacting the Abortion Law Reform Association. Without doubt, the abortion industry, as we may describe it, is illicit, and it is not homogenous. Far less is it consistent in the standard of care provided to women. For women with money, abortions are available from qualified individuals; often of high standing in the medical community. The procedures are provided with much discretion, which is fitting given the intimate nature of the decision being undertaken. However, this discretion is not directed to protecting women alone. It allows for doctors, and indeed society as a whole, to expound the horrors of abortion while at the same time ensuring its provision to those with most money in our society. While those, like X’s family, often have to resort to clandestine and unsafe procedures. This is a grave social injustice. It is on this issue that the Abortion Law Reform Association, an organisation that is intimately involved in this case, has focused its campaigns. The law exacerbates societal inequality and ensures that ‘women with money have an abortion while women without have children’.

[12] It is 1937: our attitudes and social expectations have changed since the passage of the 1861 Act. That statute was introduced at a time when the citizenship of women was severely curtailed in this country. Women could not vote, their property was automatically passed to their husband, and their ability to request a divorce was limited.

[13] We are a modern society, and our laws increasingly recognise and protect the rights of women. The Equal Franchise Act 1928 provides that women over the age of 21 can now vote on an equal footing with men. It is 20 years since the first woman was elected to Parliament and notwithstanding the fact she chose not to assume her seat many women have in her wake. The Women’s Property Act 1882 allows women to own and control their own property regardless of their marital status and, with the enactment of the Matrimonial Causes Act 1937, women can also divorce their husbands. Society is increasingly prepared to recognise the rights of women as free and equal citizens. As long as women cannot control the timing and number of their pregnancies, their citizenship remains contingent on either good luck or good fortune. As Mrs Stella Browne so eloquently described in her 1935 publication on ‘The Right to Abortion’:

Abortion must be the key to a new world for women… Abortion should not be either a prerequisite of the legal wife only, nor merely a last remedy against illegitimacy. It should be available for any woman, without insolent inquisitions, nor ruinous financial charges, nor tangles of red tape. For our bodies are our own … [F]reedom of choice and deliberate intention are necessary for [women] in their sexual relations and their maternity, if they are to make anything of their status and opportunities.

IV. Conclusion and Direction

[14] My views on this case have been much influenced by my learned and most unfairly maligned friend Justice McCardie. In the case of R v H Windsor Bell [1929] 1 Brit. Med. J. 1061 he stated that:

many of those who seek to uphold and administer [the] present law of abortion are wholly ignorant of the social problems which not only persist in our midst, but which menace the nation at the present time … I cannot think it is right that a woman should be forced to bear a child against her will and I hope that the era of savagery in connection with these cases is drawing to an end.

The necessity of abortion is plain to see. Justice can no longer choose to be blind to the needs of women in this country.

[15] Indeed, there is, at this time, an Interdepartmental Committee on Abortion taking evidence on the need for reform of the law in this area. It is my view that such reform is necessary and my hope is that Parliament will move to ensure women have access to safe and legal abortion regardless of their social class.

It is clear Mr Bourne was not alone in his sympathy to the plight of X. However that is not at issue here. Rather you must consider the legal question of whether Mr Bourne acted in good faith with the intention of saving the life of Miss X. Mr Bourne was sure of the legality of his actions on the day of 14th June 1938. We have been told he took seriously his role as a clinician and, in this role, his obligations to X. A termination was, in his clinical judgement, necessary in order to ensure X’s physical and mental well-being or to use the wording of the 1929 Act in “preserving the life of the mother”. He wished to protect her future life and indeed her future capacity to act as a loving mother to a wanted child when she was ready to assume this role. However, the veracity of Mr Bourne’s beliefs is not your sole consideration. Instead you must decide whether his actions were in accordance with the law.

[16] At the start of this direction I highlighted the implications of the word ‘unlawful’ in the charge against Mr Bourne. He feels c...