Since When Did Abortion Trump the Rule of Law?

by Peter Smith:

British Officials Claim that the Prosecution of Illegal Sex-Selective Abortion Is Not in the Public Interest. They are wrong.

18 months ago the Daily Telegraph newspaper ran a superb piece of investigative journalism. Using a pregnant woman and an undercover journalist posing as her sister, doctors and nurses at numerous abortion clinics in England were asked whether they would sign the paperwork for a termination – on the grounds that the baby was a girl.

End Female GendercideHaving been told the real reason for wanting a termination, one doctor instinctively replied “that’s not fair. It used to, yeah, it’s like the female infanticide, isn’t it?” Nonetheless, despite the doctor’s hesitation, he deemed the mother ‘too young for pregnancy’ on the form instead.

Another medic simply said, “I don’t ask questions. If you want a termination, you want a termination.”

Yet incredibly, the reaction to this exposé was not the aghast horror one would have expected in the face of such blatant abuse of the law.

Andrew Lansley, then Health Secretary, immediately announced an investigation into these breaches of the 1967 Abortion Act, the statute that carves out the only legal exceptions to the otherwise blanket ban on killing.

The Care Quality Commission, the regulator supposed to supervise the quality of healthcare in England, was ordered to inspect 320 abortion providers in England who were suspected of unlawful practices, including the pre-signing of consent forms to circumvent the rule requiring two doctors to agree to the grounds for a termination.

The CQC spent some £1m and 1100 working days investigating and passed its findings back to the Department of Health and (one supposes) the Crown Prosecution Service. Throughout their investigation, however, the CQC let it be known that they were unhappy at being asked to investigate abortion providers for fear of being pilloried as somehow restricting the “freedom of choice” in abortion.

The matter then went quiet for over a year, until Thursday’s announcement by the CPS – the equivalent of district attorneys in England and Wales – that the two doctors would not be prosecuted. Remember: both were caught on camera accepting the fact that the real reason the mother wanted a termination was because the baby was a girl, and not for any other reason which would have permitted an abortion.

The CPS said that the “key reason” for the decision not to prosecute was an on-going investigation by the General Medical Council. The GMC, however, has pointed out that it is not an alternative to criminal sanctions and does not “punish doctors” (not actually a true statement by the GMC, of course: it punishes them all the time via disciplinary tribunals).

A former director of public prosecutions described this as enabling the doctors to use their professional status to “avoid criminal action”.

Jeremy Hunt, the current Health Secretary, has demanded that the CPS, its head, the Director of Public Prosecutions Keir Starmer, and his boss, Attorney-General Dominic Grieve, explain the decision not to prosecute. The shadow attorney-general has also called for a review of the decision.

What explains the CPS’ reluctance? Take the practical legal side first. In order to prosecute the CPS must satisfy their Code of Practice which states that (a) there must be a realistic prospect of conviction and (b) prosecution must be in the public interest.

According to a former criminal barrister, Laura Perrins, (a) is easily satisfied: the offence is an attempt to procure a miscarriage or causing child destruction and, on the evidence – undercover footage, journalists as witnesses – it seems there is enough to cross the ‘realistic prospect of conviction’ test.

What of (b), the public interest test? As Perrins points out, it is usually not in the public interest to prosecute when a potential defendant is terminally ill and the crime is relatively slight. But she notes that the CPS’ claims are founded on two reasons:

The first is that the GMC could deal with any wrongdoing, the second is that prosecuting could have a chilling effect on doctors carrying out lawful terminations. Both reasons are spurious, and so intellectually dishonest they amount to a gross breach of the rule of law, an abuse of prosecutorial discretion and drive a coach and horses though the provisions of Abortion Act 1967.

Perrins’ analysis is well worth reading, and it is surely not hyperbole for her to conclude:

So the CPS have said they will not prosecute an unlawful act for fear it will stop lawful acts. This is literally nonsense, in fact “nonsense upon stilts”, that could lead to the total unravelling of the criminal justice system. It is like saying we will not prosecute people who use grossly excessive force in self-defence for fear it would stop others acting in lawful self-defence. Or we will not prosecute rape offences (unlawful) for fear it will deter lawful sexual intercourse. This is a desperate attempt to legitimise the absurd.

What other reasons could there be for the CPS not acting? The Catholic Voices blog notes that “The suspicion is that because this involves matters of both gender and ethnicity — the desire to avoid girls is particularly strong in some Asian cultures — the CPS is simply afraid to enforce the law.”

Either way, David Alton explains where this sorry sage points: towards the fact that the apparent restrictions on abortion in Britain are false, and it is neither rare (seven million terminations since 1967), safe (especially for baby girls), nor legal:

Of course, if you accept the proposition that “it is my right to choose” there is no logical reason why you shouldn’t end the life of a little girl merely because she is a girl. Gendercide is perfectly acceptable if choice trumps the very right to life itself. That the three celebratory words “it’s a girl” have become a death sentence, and the three most lethal and dangerous words in the world, is neither here nor there.

If it’s just down to choice and, in time, a test is discovered which reveals our likely sexual orientation, why not abort for that too? Is it just a matter of choice to take the life of a baby because it is mixed race or will be a colour which you don’t care for? It is, after all legal, to abort for “social grounds”(under which 98% of all abortions are done) and on grounds of “imperfection” – we end the lives of 90% of all babies with Down’s Syndrome and have aborted for things like cleft palate.

In considering all this, not a lot of “sensitivity” is shown to the interests of the unborn child, some of whom will be in great pain (we allow abortion up to birth in some cases). Perhaps the CPS would consider whether that constitutes torture – but that would be “political” too and probably not in “the public interest” to have to confront something so awful.

Jeremy Hunt has said privately that it would help his cause to reopen the CPS’ decision if a public interest in the matter were evident. Please join this facebook group which, if it attracts enough members, will be cited as proof – as if proof were needed – that the killing of baby girls is in the public interest:


Peter Smith is a lawyer in London. He has previously worked for a Conservative Member of Parliament, and has written for and The Commentator.

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