Last week the Court of Appeal unanimously overturned a ruling forcing an abortion on a 24-year-old, mentally disabled woman (hereafter, AB), by Justice Lieven in the Court of Protection. The original judgment was released this week and it is worth examining to understand how we almost arrived at that horrific point where the state can force one of its own citizens to have an abortion. There is a lot to say but I would like to consider just two points of interest: the woman’s disability and the application of the “best interest” test.
Firstly, in considering the “best interests” of AB, Justice Lieven comments that she has “to focus on AB as an individual and her best interests, not societal views in termination [nor] the rights of disabled people in general.” Yet disability cannot simply be disregarded in favour of focusing on an AB as ‘an individual’; her disability is a fundamental part of who she is and ironically the crux of the judgment rests on this. There are specific human rights obligations which arise here.
In 2018, the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of Persons with Disabilities (CRPD) released a joint statement mapping out a human rights based approach to the sexual and reproductive health needs of women with disabilities. Particular emphasis is rightly given to the obligation of a state to ensure that women with disabilities are protected against forced abortion. States should also ensure that women have access to evidence-based and unbiased information.
While the Justice believes AB cannot fully understand the decision at hand here, questions should be asked about the nature of information given to her. The Barrister leading the NHS legal team in this case, told the Court of Appeal that AB “…was told she would go to sleep. She would have an operation and when she woke up the baby would no longer be in her tummy. But she would get a new doll.” This is both patronising and deliberately misleading information. The Justice herself said that “as the pregnancy has developed AB has more understanding that she is pregnant, and that means she has a baby inside her, and that it will be born.”
CEDAW and CRPD are clear that women should not be forced to undergo an abortion against their will, or without their informed consent, though I appreciate that even with unbiased and evidence based information, by virtue of her disability, AB still might not be able to give informed consent.
All parties were unanimous in their agreement that AB did not have capacity and therefore the judgment focused on the application of the ‘best interests test’ to determine the best course of action. The purpose of this test, as summarised in Aintree University Hospital v [James], is to focus on the individual and not just medical conduct. A ‘best interest test’ must contain “a strong element of substituted judgment” taking into account: past and present wishes/feelings of the person, other factors he would consider, beliefs and values likely to influence their decision if they had capacity, and full consultation with carers and other interested parties. Justice Lieven feels weight cannot be given to AB’s feelings/wishes as she considers them unclear and subject to change.
However, she is clear in her judgment that AB “is happy that she is pregnant and likes the idea of having a baby. I think that it shows if she was making the choice, at this moment she would not want a termination.”
Whilst it is felt she cannot make ‘the choice’, the most surprising element of this judgment for me is that no weight is given to the opinions of carers and interested parties. Alongside AB, her mother (a midwife by profession), her social worker and the official solicitor strongly felt the continuation of her pregnancy was in her best interests. Although the local authority adopted a neutral stance, they still laid out their plans for care of the child should AB continue with her pregnancy.
If the purpose of the best interests’ test is to focus on the individual and not solely medical conduct, why was only medical opinion given weight in this case? And why was there so little apparent focus on “the individual”? The Supreme Court is clear that “decision-makers must look at…welfare in the widest sense, not just medical but social and psychological…and they must consult with others who are looking after [them]…in particular for their view of what [their] attitude would be.”
If Justice Lieven feels harm is inevitable whichever path is taken here, surely the opinion of those who have worked closely and extensively with AB over a number of years are therefore best positioned to advocate for her and make this judgment. Consideration, yet no weight, was given to their views and in my opinion, this was a dangerously narrow and partial application of the ‘best interests’ test.
It is difficult to fully analyse just what has gone on here, the details are still incomplete and the full picture will not be clear until the Court of Appeal judgment is released. However, it is a judgment riddled with contradictions and with little regard for the rights of disabled people. The Justice herself recognises how immensely intrusive a forced abortion would be and the draconian nature of a state ordered termination on a non-compliant woman, yet proceeds in this manner anyway, preferring to rely on tentative psychological speculation as opposed to the voices of those who, professionally and personally, are best placed to make this decision.
Thankfully overturned, this judgment feeds into wider debates about the role and reach of the State in such medical decisions and questions have to be asked as to what weight, if any, Courts are giving to those closest to the person in question. We must continue to be vigilant as this area of law develops, as forced abortion might just be the tip of the iceberg.
All opinions expressed here are the author’s own and do not necessarily represent the views of Right To Life UK.