12 July 2019 – The Court of Appeal decision that successfully overturned a court judgement, ordering a woman with a “moderate learning disability”, who was 22 weeks pregnant, to have an abortion has been released. The original ruling was made in the Court of Protection on 21st June, but was later challenged in the Court of Appeal on the 24th June and the appeal was granted.
Given that the cut-off point for abortion in the UK is 24 weeks gestation, the appeal was heard urgently before the court as the woman was 22+ weeks pregnant. The court heard during the appeal that the abortion was to take place over three days, and that the first pre-operative assessment “was in fact being carried out whilst the parties were in court at the hearing”.
The appeal was granted as the judgement ruled that “the evidence taken as a whole was simply not sufficient to justify the profound invasion of AB’s rights represented by the non-consensual termination of this advanced pregnancy”. It was decided that the abortion would therefore, not take place and the woman would now “give birth to her child by cesarean section under general anaesthetic at, or near, full term”.
The decision to grant the appeal was made heavily relying on two major points:
- The judge’s conclusion from the Court of Protection was “substantially anchored” in medical evidence, however that evidence was “predicated upon imponderables” – AB’s likely emotional reaction to each of two traumatic events – and “did not in itself convincingly demonstrate the need for such profound intervention.”
- “Inadequate weight” was given to the non-medical factors of the case, including AB’s wishes and feelings which, though she lacks capacity, “can be determinative”. The judge also noted that it was a “significant omission” not to include the views of AB’s mother, her social worker and the Official Solicitor (who were all in agreement that the termination should not take place), in the final conclusion of the ruling from the Court of Protection.
The Court of Appeal also brought to light the “well established” principle that “the court does not take into account the interests of the foetus but only those of the mother”.
Spokesperson for Right To Life UK, Clare McCarthy has said:
“Between the original ruling and the decision from the Court of Appeal, the life of the 22-week-old baby hung in the balance and was literally hours away from being aborted. In fact, the pre-operative assessment for the abortion was already underway. If this last-minute hearing did not take place when it did, this baby would not be alive.
“As the ruling from the Court of Appeal made clear, the right to life of the baby held no weight in court, as the “the court does not take into account the interests of the foetus but only those of the mother”. This is despite the fact that the baby, this late in gestation, would in some cases have been able to survive outside of the womb.
“Although it is a major relief that the Court of Appeal came to this decision, and that the forced abortion did not take place, it is a chilling case that demonstrates the power the court holds over life and death.