Healthcare law cries out for reform, says Fiona Bruce, and Conservatives stand for a culture of life
Westminster watchers will have noticed an upsurge in Parliamentary activity on prolife issues. As well as the adjournment debate on abortion for disability which I secured in April, Jacob Rees-Mogg and Baroness Knight have led debates on the issues of three-parent IVF/mitochondrial transfer and sex-selective abortion. Members of the All-Party Prolife Group have tabled a steady flow of Parliamentary questions, prodding and harrying the government, the Department of Health and various organs of the health establishment in order to maintain momentum for the prolife cause and obtain information.
Prolife concerns have also topped the news agenda on several occasions in 2014, despite stiff competition from tragic events overseas. At the start of the year it was the Government’s changes to Standard Operating Procedures for abortion clinics; later the twin scandals of sex-selective abortion and pre-signing of abortion authorisation forms by doctors – that is, without the doctor seeing or knowing anything about the woman requesting an abortion – played out in the headlines over the course of several weeks.
There has been a unifying theme in all of 2014’s abortion stories, and it is this: the enforcement of the 1967 Abortion Act is in crisis. If there was ever a time when it worked, that time is long past. Of course, the law has never really been properly policed; only one doctor has ever been prosecuted for carrying out an illegal abortion under the Act. The supposed intent of the Abortion Act was to provide for a small number of abortions for women in very difficult circumstances, but the number of abortions rose at a precipitous rate in the years following the passing of the Act and has remained at a high level for more than three decades, suggesting that clinicians and abortion providers have from the very start treated the law in a rather cavalier fashion, no doubt unanticipated by those Parliamentarians who voted for the Abortion Act to cover a few exceptional cases.
What is clear today is that we now have compelling evidence that the Abortion Act is being routinely treated with contempt by abortion clinics and the medical authorities, and repeatedly violated in both letter and in spirit. This first became apparent in early 2012, when it was found that some abortion clinics were offering abortion on the ground of gender and that many others were engaging in widespread and systematic flouting of government regulations, notably through the illegal practice of pre-signing of HSA1 abortion authorisation forms. A subsequent Care Quality Commission (CQC) investigation, reporting in August 2012, found evidence of pre-signing in no fewer than 14 NHS Trust areas.
The real bombshell resulting from that CQC investigation was not uncovered until this year. It emerged that, although the CQC had reported no fewer than 67 doctors who had pre-signed HSA1 forms to the General Medical Council, the GMC had taken no further action. This is despite the fact that pre-signing is, on the face of it, a criminal offence under the Act. This issue, like that of abortions on the ground of the sex of the unborn child, is causing real concern among Parliamentarians. As the Health Minister Earl Howe stated on 3rd April this year, “forms being pre-signed is a clear breach of the law and if it is found to be happening, a prosecution should be brought” .
In some quarters the argument has been made that pre-signing in and of itself is not necessarily proof that a doctor did not complete an HSA1 form in good faith – after all, the argument goes, he might pre-sign for convenience but come back and examine the woman requesting abortion as required. But while this is technically possible in some cases, it is wildly implausible to accept it as a blanket defence of all such cases, particularly with the numbers involved. The Department of Health’s own guidance on their interpretation of the Act appears to rule out a blanket refusal to prosecute for pre-signing, stating that pre-signing is illegal “without subsequent consideration of any information relating to the woman”, i.e. if it could be proven that a pre-signing doctor did not consider any woman specific information, he would in the Department of Health’s view not be protected by the Abortion Act and so would be liable to prosecution. However, no action has been taken to date against those involved, making it increasingly difficult to define what good faith actually means in the context of the Abortion Act. This is a wholly unsatisfactory situation.
Then of course there is the muddle over the legal status of abortion on the grounds of gender. The Department of Health continues to confirm that abortion on the ground of gender alone is illegal. Staggeringly, this is flatly contradicted by the abortion provider BPAS (British Pregnancy Advisory Service), the largest single private sector abortion provider in the UK, performing well over 50,000 abortions every year – the vast majority of them funded by the taxpayer. They argue that the Act does permit abortion for fetal gender in some cases. BPAS Chief Executive Ann Furedi stated in an article last year that “there is no legal requirement to deny a woman an abortion if she has a sex preference, providing that the legal grounds are still met”.
No-one can agree on what the Act means, or how it should be enforced, while it has been stealthily undermined through use of Statutory Instruments and Department of Health guidelines. The dramatic changes made to a new version of a document called Procedures for the Approval of Independent Sector Places for the Termination of Pregnancy are a good example of this. A previous version of this document stated that “medical practitioners must give their opinions on the reasons under the Act for the termination following consultation with the woman” , i.e. it was clearly expected and required that both of the doctors who authorised an abortion would actually meet and talk to the woman concerned. The 2012 version of the guidelines, by contrast, explicitly state that it is “not a legal requirement” for either authorising doctor to see the woman, saying only that “we consider it good practice that one of the two certifying doctors has seen the woman”, but not insisting on this, and suggesting that “members of a multi-disciplinary team” can play a role in the consultation process.
It now looks increasingly as though there may be significant new legislation on abortion in the next Parliament. Voices within the health establishment and the Department of Health are calling for the Act to be reviewed and updated. The clear challenge for pro-lifers in the Conservative Party is to make sure that such change helps to create a culture of life, not a further entrenching of abortion. The areas where there are clear potential for positive change are sex-selective abortion, tighter enforcement and respect for the law, such as on pre-signing, and reviewing the ground for abortion for disability, which – to the complete shock of many who hear of it for the first time – is not limited to twenty-four weeks’ gestation, but allowed by law up to the very moment of birth (see the Report of the “Inquiry into Abortion on the Grounds of Disability” I chaired last year: www. abortion-anddisability.org). Pro-choicers have their own objectives, of course, notably the abolition of the two doctors rule. Pro-lifers must also pay close attention to resisting such changes where possible. The key thing to remember is that we can make progress, if we focus on achievable goals and think carefully about the best ways to achieve them, and bear in mind that many who would not naturally call themselves prolifers share our concerns on the above issues.
As a final thought, the way in which the abortion law has been widely ignored and circumvented should be a stern warning to Parliamentarians faced with the choice of legalising assisted suicide. The two issues are of course distinct, but the deteriorating respect for the abortion law should act as a huge flashing warning beacon to those claiming that their favoured policy is a limited humanitarian reform designed to be used in a small number of extreme cases, and is not intended to be the first step in a much larger reform. Assisted suicide creates enormous problems with public safety and the protection of the vulnerable, and the Party must remain committed to opposing any measure for its legalisation. Reading the debates which took place in the House of Commons during the 1960s with regard to the then-Abortion Bill, subsequently enacted, and intended for a few exceptional cases but which opened the floodgates, it is striking how similar they are to the debates which we are now having about assisted suicide.
Fiona Bruce is Member of Parliament for Congleton