A recent decision of the Court of Appeal involved a very interesting legal challenge based on an alleged negative ‘message’ in the law. It raises important questions about the law on disability-selective abortion, but also more broadly on the possibility of challenges to the law based on any allegedly negative message.
In R (Crowter) v Secretary of State for Health and Social Care, the appellants argued that the disability ground in abortion law, section 1(1)(d) of the Abortion Act 1967, ‘sends the message’ that disabled lives are less valuable as it perpetuates and reinforces negative stereotypes, and that this is incompatible with Articles 8 (right to respect for private and family life) and 14 (prohibition of discrimination) of the ECHR. This provision is the only one that is based on the child’s characteristics, and the ground is available until birth. All other grounds for abortion are based on a health risk, and in the vast majority of cases abortions must take place during the first twenty-four weeks of pregnancy. This case attracted a lot of attention. The Divisional Court’s decision led to an academic conference, and a special issue of a journal.
Abortion is of course a topic that is controversial, and when rights-based arguments are made, they are usually about the rights, or alleged rights, of pregnant women or the fetus. This case was very interesting because the appellants’ arguments on appeal were not about these rights at all, but about the rights of disabled people. The ethics of abortion on the grounds of disability has been extensively analysed, including by me previously, here, and here, but the rights-based framing in this case was new.
The Court of Appeal dismissed the case. In the lead judgment, Underhill LJ found that the disability ground does not objectively and clearly send the message that the lives of disabled people have less value. I believe this conclusion is very difficult to accept, although it is true that the message would need to be sufficiently seriously negative to reach a certain threshold so that it could constitute an interference. For reasons I explain in a longer analysis of this case which I have recently published, I think there were reasons available to the court to find that the threshold was reached.
This case has often been misunderstood as involving a necessary conflict between the rights of disabled people and the reproductive rights of women. This is not correct, as I have said in a previous blog post, and here, and here. The negative message in the law could be removed or at least reduced by restricting access to abortion for reason of disability, but also by liberalising access to abortion, and by allowing abortion for any reason, either at any stage of pregnancy or until a particular time.
Another misunderstanding is that this case is only on abortion. Importantly, while the appellants were not successful, Underhill LJ did accept that an argument based on negative stereotyping could be made, if the right requirements were met. The appellants relied on jurisprudence from the European Court of Human Rights on negative stereotyping, and this jurisprudence was not on abortion.
This means that this case highlights that a sufficiently offensive message, including one in the law, could, potentially, lead to a finding that there is an incompatibility with Article 8 of the ECHR. This is not at all only about abortion. And it is very interesting indeed.
Perhaps this might seem like an expansive interpretation of Article 8, but imagine, for example, that section 1(1)(d) said, explicitly, that abortion on the grounds of disability was allowed because society values disabled people less, wishes fewer of them were born, and would like to promote a form of prenatal eugenics. Would we not think that this explicit statement is unacceptable, a stain on our values, and a source of shame for society?
And, if we did think that, why should we think it is acceptable for the law to send precisely this same message – just not so embarrassingly explicitly?
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