Late term abortion, high court

[Anycrispsleft]

I saw this on the BBC this morning - it's High Court review of the rules on late term abortions. The campaigners are seeking to remove the exception to the ban on post 24 week abortion that allows it in the case of "non-lethal" disabilities. The woman who is asking for the review wants the law to be changed on the grounds that it's discrimination against disabled people.

Apologies if this case has been covered before, I'm a newcomer to FWR having been radicalised by you people on Twitter. I just wanted to express this thought that occurred to me: the trans debate has shown me that whatever good-thinking progressives think, rights are sometimes like pie, in that giving one person more rights can mean less rights for someone else. And this is also like that, isn't it? There's a balancing of the rights of the foetus (not that a foetus has legal rights, at least not yet) and the rights of the mother. Until now I used to sort of shy away from this bit of the ethics of abortion. I am very strongly pro choice, but I always wanted to be able to justify that stance in a sort of objective way, considering the cases of the foetus and the mother as though I had no skin in the game. And I realised I can't actually do that, because I do have skin in the game, because I am a woman, I have two girls, and I want all of us to have control over our own bodies. It's not that I think I am objectively right. I want to win this. I don't care about the rights and wrongs from an academic point of view. I don't want my children to have to carry a child they don't want to term. Full stop. I'm sure others would be able to put this in a much more eloquent way but I feel like I've reached a new point in my feminism and I wanted to share it. I'm not neutral. I'm team woman.

I wanted to deal with disability discrimination. The taxonomy under Article 14 is pretty well known

THere are strong views both ways about what is essentially a moral question, criminalising women who decide that they do wish to have an abortion. That does not involve sterotyping of the disabled

There is a deep commitment in Parliament to eliminate discrimination. This legislation needs to be approached with a true understanding of its proper nature and terms. Women are going to have to be in the decision to make an awful choice in these cases.

In 1 1 d there are very particular reasons why no time limit is appropriate in that situation including time for reflection and all that

We haven't got any comparable case law from Strasbourg

Making exceptions for children with Down syndrome is not a viable option

If you say cut out Down syndrome you have to address all the issues about risk

Summing up for the claimant now -

Article 2, the submission that Sir James made, was that an unborn child even one very late in gestation cannot be protected under Article 2. We have two responses

on the facts of Vo and France, there is no decision on a late term fetus still less one such as Aidan very close to birth, and these cases are decided on their facts

It is not what the court decided that the unborn were outside of the scope of Article 2, it would have been easy for them to say that, but they didn't they said it was up to individual states.

Inanswer to Lord Justice Singh's point that it wouldn't be usual for a scope of a convention right to be something that differs from state to state, but Article 2 is obviously different not least becuase it is intimately related to the cultural conditions of the contracting state

Sir James submission cannot be right because the convention could obviously have clearly stated a position, which they did not do

If you starting point is domestic law, there is no debate at all, the yardstick is the 1929 act which the able bodied fetus have the benefit of but not the disabled because of the 1967 act

Ugh again with the "babies who are not wanted"

The language is so inaccurate, and so very telling of the underlying prejudice towards women in this position.

Like it's a simple as them not wanting their babies, so they can just toss them away... Missing the point entirely.

Article 8, stereotyping......my learned friend has three submimssions, 1. the case that we relied upon is very different. But what you do have is a uniformly expressed principle, that then falls to be applied to the facts of this case

My learned friend said that our case was shortsighted. But my learned friend doesn't engage with the evidence in this point. Not just the views expressed by disabled persons being given, but also academic research as to the effect of section 11d as to the effect on disabled perso

you have the facts from the UNCRPD of the effects that the discriminatory abortion laws have on disabled people. That is their expert view.

Here is UNCRPD position:

eclj.org/eugenics/un/le-comit-des-droits-des-personnes-handicapes-prend-position-contre-lavortement-et-leuthanasie-des-personnes-handicapes

On the broader scheme of domestic laws, Lord Shinkwin points, these other mitigations are no answer they simply highlight the incompatibility of the abortion law.

The legislation leads directly to an experinece of women in her positon coming under pressure to have an abortion. There have been no official efforts by the defendants to do anything about that

It is not good enough for my learned friend to say that it is not part of the legislative scheme, it follows directly from the way the legislation is set up

Article 8 - what we have is the scheme of the legislation and the very broad concepts. The guidance is relevant to understanding the breadth and safeguards, becuase it highlights our submissions as to quite how broad the legislation can be.

There is the potential for a whole range of views to be taken within good faith, but without good parameters in the legislation.

What are the limits on doctors discretion here? How likely is it that there will be any serious constraint on the opinions of individual doctors

There is a whole array of wholly unpredictable circumstances on which the doctors may make a decision

The safeguards, the only one is that of two doctors making a decision there is nothing else to constrain the discretion of doctors

Margin of appreciation, the way we submit the argument should run, is that this is not a case where Strasbourg would afford a very broad margin of appreciation

Even if it were, that then takes us into Re G and is not the beginning and end of the matter, so it doesn't permit the court to embark on its own decision without consideration of institutional competence

on the Strasbourg margin, we referred to four points, we were dealing with a particularly important facet of the individuals identity and self worth, and the destruction of a viable human life.

I appreciate my learned friend doesn't accept we are within the realm of stereotyping.

Disabiliity discrimination is a deeply suspect groudn adn the burden of justification is a heavy one

Under the CRPD an abortion law which discriminated on the grounds of disability was inconsistent with the UNCRPD. The joint statement does not resile from the position that the committee stated in the previous reports.

Were Strasbourg to be asked about an issue such as this, we would submit that it would have very careful regard to the established position under the UNCRPD

The 31 states are those that permitted abortion for fetal abnormality, and made no distinction between fatal and nonfatal. The relevant is that of 16 states of 47 that make allowance for abortion for disablitiy with no time limit, and that is a minority

Strasbourg recognised that there wasn't consensus around IVF, the lack of consensus didn't then mean that the state was permitted to adopt any permission

and found Austria in breach

Doctors pressuring women into abortion is wrong at any stage. That does not mean we take away the rights of women to have a choice about their pregnancy just to stop the doctors pressuring them. This will just move the pressure on women to make a decision in a very short amount of time and probably without full information.

There are two factors which we say are strongly in favour of a robust judicial competence in this case. Northern Ireland Human Rights case - the majority of the court were clear that they were in a position to look and decide for themselves

The other factor that we rely upon, in addition to the abortion contact, we are concerned with the protection of vulnerable minorities and

we have Lord Hope and Lord Manse on that. and the particular role of the court in discrimination cases in protecting unpopular disadvantaged communities.

re the nature of the judicial process, and the extent of the different views that are available to the court, my response is, although it will very often be the case that the sort of issues the courts have to decide in human rights cases there will be a wide range of views, and

there are adaptations for that, the defendant can put evidence of the wide range of views, and interventions. THat was a possiblity but not taken up

There are problems with Parliamentary consideration of the issues, pre-legislative consulation, explanatory notes, speeches, a whole range of standard features which you don't have in relation to this statute and the consideration of it over the years.

Has Parliament grappled with the rights and considerations that the court has to grapple with on a compatibility question. There are a number of areas that have not been grappled with by Parliament e.g. the UKs accession to the CRPD, the problem of the legislation steretyping

developments in the science of testing and screening, such as in the Royal college report

It is literally impossible to work out what Parliaments reasons were, you have different voices expressing disparate views.

In relation to UNCRPD, there is domestic authority that that is the effect of the CRPD.

re the difficulties of making a list of conditions to be included in 11d. The professor does give evidence about the difficulties of a comprehensive list, but that doesn't mean that you can't have a list of conditions that are excluded

In 2007 when ammendments were considered by Parliament, the committee issued its report but that is now 14 years ago and science has moved on

We simply don't know the detail of the legislation of the other states, how they define/seek to regulate the conditions that might be caught

Is it in appropriate to threaten women with criminal sanctions? In my submission the court should excercise a degree of caution about placing emphasis on the criminal context. CEDAW says that it should not be a criminal offence.

Removing ground d, would affect the physical or mental health of women, the answer to that is section 11b. there is provision elsewhere in the act in a very pressing case such as my Lord put to me yesterday.

There is provision to protect the mental health, in a way that is not stigmatising of the fetus

(ground b is that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman - very high bar)

The balance struck by section 11d is all one way, there are difficult questions to be resolved, but the way that the balance is currently struck, with unreviewable discretion of doctors, discrimination, we are not asking the court to put a line through 11d but to find that it is

overbroad and incompatible, and on our primary relief that we seek the democratic process would run its course, then the defendant and we woud hope parliament would be required to consider where the balance should be struck.

Lord Singh, we will do the judgement as soon as we can, but because of the time of year we can't promise when.

Lord Justice Singh, I would anticipate that judgement will be handed down according to the remote procedure.

Lord Justice Singh, may I thank your teams for the hard work that has gone into preparing your submissions in what is a very difficult case. THE END

24 weeks is a viable baby, the point at which a fetus dependent on the mum transitions to high probability of survival in his own. So it'd be like killing a baby. Think that the baby is out, then is alive, and has to be killed by the nurse. Do you think that's ok to do, because he's disabled? Of course it's a horrible choice, but we can't ask the baby whether he wants to live...

@BosseFave

24 weeks is a viable baby, the point at which a fetus dependent on the mum transitions to high probability of survival in his own. So it'd be like killing a baby. Think that the baby is out, then is alive, and has to be killed by the nurse. Do you think that's ok to do, because he's disabled? Of course it's a horrible choice, but we can't ask the baby whether he wants to live...

Fortunately that’s not what actually happens.

Alongside this, a premature baby born at 24 weeks will not live without considerable medical intervention.