Page 5, 5th February 1965

5th February 1965
Page 5
Page 5, 5th February 1965 — THE LAW ON ABORTION

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By Norman St. John-Steyas, M.P.

AGITATION for the "reform" of the law prohibiting abortion is with us again. The Abortion Law Reform Association has been lobbying M.P.s and this week the Home Secretary, Sir Frank Soskice, has received a delegation from the society.

In the past such activities have not borne much fruit and. despite the dubious claim of the Association to have the support of 200 M.P.s, I don't believe they will fare any better this time.

With an over-all majority of only three the Labour government is not anxious to stir up a theological hornets' nest and Mr. Harold Wilson is hardly the man to emerge as the champion of the abortionists. He is much too skilful a politician to fall into that particular trap.

For centuries, English law has punished any attempted or actual abortion. Abortion, according to Coke in his Institutes, is considered by the common law to be a "great misprison" or misdemeanour, and statute law has made it a felony.

Under an Act of 1861 it is a felony punishable with imprisonment for life if a woman is with child and any person unlawfully administers to her any noxious drug or unlawfully uses any instrument or other means to procure her miscarriage.

Even if the mother employs the means herself an offence is still committed. Supplying the drugs or instruments knowing the purpose for which they are to be used is a misdemeanour punishable with five years imprisonment.

There is one very important limitation to thc la w. declared in 1939 in the Bourne case. If an abortion is carried out in the course of medical treatment to safeguard the life of the woman then the operation is not "unlawful" within the meaning of the statute.

The extent of the exception is however by no means clear. The Bourne case implies that the mother's life need not be in danger to justify an abortion and that a serious threat to health is sufficient. but the circumstances of the Bourne case were exceptional to say the least. Does injury to mental health suffice? It may be said with some confidence that only a really serious and tangible risk to health justifies an abortion under English law.

Rejection of abortion seems to spring from the nature of man himself. The Hippocratic oath which dates back to the fifth century B.C. contains an explicit repudiation of abortion. Roman law punished abortionists by sending them to the mines or into exile. If death resulted from an abortion the death penalty was enforced.

Christianity reinforced this' attitude. Successive Councils condemned the practice and canon law from the time of Ciratian imposed penalties on abortionists. Today canon law punishes all who "effectively" procure an abortion with an excommunication reserved to the bishop.

Christianity equated abortion with murder because of its conviction of the presence of a human soul in the foetus. The soul. according to traditional Catholic teaching is directly created by God but how can one tell when the soul is first present?

The medievals were confused about it. as had been Augustine before them. They held that there was no soul present until the infant "stirredin the womb. after forty days in the case of a male and eighty in that of a female. This was nonsense, the error being biological rather than theological. Today it is accepted by biologists that there is no qualitative difference bet ween the embryo at the moment of conception and at the moment of *quickening. Life is fully present from the first moment of conception.

What should the Catholic attitude be to the proposed changes in the law extending the occasions for a legal abortion? The argument for the changes is that this is the only way to curb the trade of the back street abortionist.

It is a principle of Catholic jurisprudence that if a prohibitory law is unworkable a regulatory taw must be resorted to. But would such a law reduce illegal abortions? The evidence points the other way.

The provisional conclusion must be then that a relaxed abortion law in Britain should be resisted because it would pose a further threat to the principle of the sancity of life and compensating social advantages would be unlikely to occur.

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