Abortion already underway as the Court of Appeal overturned forced abortion ruling

Documents from the Court of Appeal which ultimately stopped a state enforced abortion from taking place last month, revealed that the first stage of a three day abortion procedure was being carried out during the Court hearing.

At the end of June, Justice Nathalie Lieven ruled that forcing a woman with a moderate learning disability to have an abortion against her will was in her “best interests”. In a last minute hearing the next working day (Monday 24/06), three judges in the Court of Appeal overruled this decision, forbidding doctors from performing an abortion on this woman.

The full ruling of the Court of Appeal has now been released and it reveals that the woman was already undergoing a “pre-operative assessment” for the abortion, which was in fact being carried out during the hearing at the Court of Appeal.

The “pre-operative assessment” formed what would have been part of a three day invasive process which would ultimately have ended the life of her baby.

The ruling also reveals that the judges overturned Justice Lieven’s decision because she gave insufficient consideration to the wishes and feelings of the pregnant woman, as well as the views  of the woman’s primary carers – including her own mother – who believed it was in her best interests not to have an abortion.

The Court of Appeal judge, Lady Justice King said Justice Lieven “made no mention of AB’s [the woman’s] wishes and feelings or of the views of CD [the woman’s mother], the social worker or the Official Solicitor. This was, in my opinion a significant omission.”

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”.

Clare McCarthy from Right To Life 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.

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

Collette Power
PhD candidate in Human Rights Law at the centre for Rights and Justice, Nottingham Trent University.

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.

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.”

70,000 sign petition calling on UK govt to stop judge forcing women to have abortion against her will

On Friday the 21st May, Justice Lieven ordered that a mother with a learning disability who is 22 weeks pregnant must have an abortion against her will.

Right To Life UK have since started a petition to the Secretary of State for Health, Matt Hancock, urging him “to intervene in the case, doing all within [his] power to ensure this woman is not forced to have an abortion.” In  less than 48 hours since it was launched, the petition has gathered over 70,000 signatures.

The woman’s doctors claim that an abortion is in her best interests, despite the fact that the woman herself wants the child, and the woman’s mother has offered to raise the child and firmly opposes abortion. Furthermore, the woman’s own legal team have argued that there is “no proper evidence” for the claim that an abortion is the mothers best interests.

In her decision Justice Lieven said: “I think [the woman] would suffer greater trauma from having a baby removed [from her care],” Lieven said, because “it would at that stage be a real baby.”

Justice Nathalie Lieven has long been a legal advocate in various pro-abortion cases and in a recent pro-assisted suicide case. In 2005 she represented the Family Planning Association arguing that the law should not require parental consent for girls under the age of 16 seeking an abortion and that there is no duty to inform parents.

In 2011, she represented abortion provider and lobby group the British Pregnancy Advisory Service (BPAS). Lieven advocated for women to be able to take the second abortion pill in a chemical abortion outside of a clinical setting.

In 2018, Justice Lieven argued on behalf of the Nothern Ireland Human Rights Commission that the abortion law in Northern Ireland discriminates against women and girls and said it was in breach of Article 3 of the ECHR, which forbids torture and “inhuman or degrading” treatment or punishment.

Finally, in a 2018 Supreme Court legal challenge, Ms Lieven argued on behalf of Noel Conway, a 68 year old man with motor neurone disease, that it should be lawful for him to engage in a medically assisted suicide.

At the time of this court case, which ultimately failed, campaigners against assisted suicide pointed out that it “opens the door to risks and dangers driven by attitudes about disabled people and their lives. It’s worth noting that no disability charity or organisation is campaigning for a change in the law around assisted dying. We want support to live, not to die.”

Clare McCarthy of Right To Life UK said:

“Justice Lieven’s background as a lawyer in numerous abortion advocacy cases calls into question her fitness to adjudicate in this case. The fact that this case relates directly to abortion and the fact that the Judge has a strong background of pro-abortion advocacy, undermines the impartiality of the judiciary.”

“This important trial should not be presided over by a Judge with such a strong pro-abortion bias.”