Forced abortion: is it really in anyone’s “best interests”?

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.

All opinions expressed here are the author’s own and do not necessarily represent the views of Right To Life UK.

Press release: Forced abortion judgement released – 22 week old unborn baby considered “not a physical presence”

5 July 2019 – The full judgement outlining Justice Lieven’s decision to order a 24 year old woman with a “moderate learning disability” who was 22 weeks pregnant to have an abortion has been released. The hearing took place in the Court of Protection on 21st June, however the ruling was later challenged in the Court of Appeal on the 24th June and was successfully overturned.

Justice Lieven’s judgement from the Court of Protection has now been released. The ruling discusses the woman’s ‘best interests’, her capacity to consent to abortion, as well as the role the grandmother, a former midwife, might play in raising the child. In all 63 paragraphs of the ruling however, no consideration or weight is given to the rights of the 22-week-old unborn baby. 

The court judgement noted: 

  • Paragraph 18 –  The pregnant woman (referred to as AB for reasons of anonymity) understood that she “has a baby inside her, and that it will be born”. She could see her stomach grow and could feel the baby move. 
  • Paragraph 22 – NHS Trust witnesses thought that the late-term abortion would be “less traumatic for her than the baby being taken away” however the AB’s mother, who the Justice Lieven noted “knows her best”, thought that AB would potentially be “very upset about the loss of the baby”.
  • Paragraph 35 – Previous case law is cited concerning an abortion for a 14 year old girl. The judge in that case writes that such an “immensely invasive procedure” as a forced abortion, could not be justified to be ordered by the court “unless there was powerful evidence that allowing the pregnancy to continue would put the mother’s life or long-term health at very grave risk.” The ruling states that AB is “young and physically healthy” (p.48) and any risk to postpartum psychosis was speculative and it would be “almost impossible to assess the likelihood of this happening” (p. 24).
  • Paragraph 43 – AB’s social worker said that she believed it was in “AB’s best interests to have the baby”. 
    Paragraph 46 – Justice Lieven notes that she is “acutely conscious of the fact that for the state to order someone to have a termination, where it appears that they do not want it, is immensely intrusive”. 
    Paragraph 52 – Despite the fact that Justice Lieven accepts that AB “probably will suffer some trauma or upset from the termination” she thinks that it “will be a lesser impact than having the baby”.
    Paragraph 56 – Justice Lieven makes a differentiation between a “pregnancy” of 22 weeks gestation and a “real baby”, saying that if AB gives birth, it will be a “real baby” but while she is still pregnant it is a “pregnancy”, seemingly not a “physical presence”.
    Paragraph 60 – Justice Lieven believed that AB “would like to have a baby in the same way she would like to have a nice doll”.

Spokesperson for Right To Life UK, Clare McCarthy has said:

“A few very worrying things ring through from this judgement, one especially resounding thing was that the rights of the 22-week-old baby in the case were not considered in any way, or carried no weight at all in the judgement. A baby this late in gestation would in some cases be able to survive outside of the womb and yet Justice Lieven dismisses the baby as “not a physical presence”. 

“Despite the fact that the woman, supported by her mother and her social worker, made clear that she wanted the baby (p.26), and that Justice Lieven admitted that a court-ordered abortion is “immensely intrusive”, Lieven nonetheless imposed her pro-abortion agenda on this woman by overriding her wishes and ruling that she should be forced to have an abortion. It is a major relief that this ruling has been overturned but it should never have happened in the first instance.

“This ruling was a gross invasion not only on the rights of the pregnant woman but also on the right to life of the unborn child who the mother could feel growing and moving inside her womb.

ENDS

Doctors promised ‘new doll’ after forced abortion for disabled woman

After a Court of Appeal ordered that a woman with a learning disability must not be forced to have an abortion, it was revealed that the hospital had planned to give the disabled woman a doll as an apparent replacement for the baby whose life they were intending to end.

Barrister Fiona Paterson, who represented the NHS hospital trust with responsibility for the woman’s care, told the three appeal judges: “She 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.”

Miss Paterson said the woman had already been given a doll which she played with.

She added that it was “thought to be in keeping with her current level of understanding of the pregnancy” and that doctors believed “the prospect of a new one might be very appealing to her”.

This is consistent with the Justice Lieven’s original ruling saying that the woman must be forced to have an abortion.

The judge said she did not believe the woman understood what it meant to have a baby.

“I think she would like to have a baby in the same way she would like to have a nice doll,” Lieven said.

Clare McCarthy from Right To Life UK said: “There is no reason to think, from the information available, that this woman with a learning disability would not experience great distress and suffering were the life of her baby to be forcibly ended in the womb.”

“Children, and adults with learning disabilities, know the obvious difference between a baby and a doll – something which apparently Justice Lieven and the NHS Trust do not understand at all.”

Court of Appeal rules that doctors must not force abortion on woman against her will

Three Court of Appeal judges have ruled that doctors must not perform an abortion on a woman with a learning disability.

On Friday 21st June, Justice Nathalie Lieven ruled that the woman must be forced to have an abortion against her will, and in spite of the fact that the woman’s own mother offered to look after the child.

On Monday 24th June, Lord Justice McCombe, Lady Justice King and Lord Justice Peter Jackson overturned the ruling after the woman’s mother mounted a legal challenge.

The three judges said they would present the reasons for their decision at a later date.

At this time, the identities of the family, their social worker and NHS Trust who brought the case against them remain unknown.

During the hearing, details of how the woman was being prepared for a forced abortion.

Barrister Fiona Paterson, who represented the NHS hospital trust with responsibility for the woman’s care, told the three appeal judges: “She 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.”

Miss Paterson said the woman had already been given a doll which she played with.

She added that it was “thought to be in keeping with her current level of understanding of the pregnancy” and that doctors believed “the prospect of a new one might be very appealing to her”.

Clare McCarthy of Right To Life UK has said:

“The Court of Appeal’s decision which will save the life of the unborn child and the mother from a forced late-term abortion and much undue distress, is extremely welcome. However, the horrific original ruling should never have happened.

Unfortunately, we fear that this is not a one-off case.

We are calling on the Department of Health to urgently reveal how many women have been forced to have an abortion in the UK over the last 10 years and make it clear how they will ensure it will not happen again.”

Lord Alton of Liverpool has said:

“The decision of the Appeal Court restores my faith in our judicial system. The implications of their decision should now be carefully considered by the Court of Protection. By supplanting the rights of the family, and the rights of a vulnerable pregnant woman, the Court of Protection went way beyond the rights of a British Court.  In trampling on the foundational, paramount human right – the very right to life itself – the Court exceeded its authority and the Appeal Court is to be warmly congratulated for overturning it.

There is an old saying that the person who saves a single life, saves the world. The saving of this single life should now open the eyes to the loss of so many others.”