Abortion in Wonderland

Jane: Eh? He distinguished Aksu and Lewit from Heidi and Aidan’s case on the basis that:
.He went on to observe that the perception of the appellants that the present state of the law devalued them ‘cannot itself constitute or evidence such an interference: the interference must derive from something in its terms or its effect which, applying an objective standard, unequivocally conveys that message.  The existence of a legal right cannot depend solely on the subjective perception of the putative victim.’ It would, he said
Heidi and Aidan’s argument was substantially based on two European Court of Human Rights (ECtHR) cases.
Underhill LJ’s response to this was as follows:
The Article 14 argument got nowhere, the court finding not only that there was no interference with Article 8, but that s. 1(1)(d) did nothing which directly impacted on the identity or self-worth of disabled persons who have actually been born.
Underhill LJ’s assertion that ‘The existence of a legal right cannot depend solely on the subjective perception of the putative victim’ is, in this context, misconceived. Heidi and Aidan’s legal right under Article 8 (which, on proper analysis, I am sure they possess) does not depend on their subjective perception, but on the only possible, and entirely objective, understanding of the message resulting from the statutory position that Down’s syndrome fetuses can be aborted up until term.
Heidi and Aidan said that this provision ‘“perpetuates and reinforces” negative cultural stereotypes about people with handicaps by sending a message that their lives are less valuable’, and accordingly falls foul of Articles 8 and 14 of the European Convention on Human Rights (ECHR). (In this post I use the language of ‘disability’, ‘disabled’ and ‘handicap’ because those are the terms used by the Court of Appeal in its judgment).
By Charles Foster
Jane: But I’ve got red hair!
That’s the gist of the Court of Appeal’s recent decision in the case of Aidan Lea-Wilson and Heidi Crowter (now married and known as Heidi Carter). Heidi and Aidan have Down’s Syndrome.
John: Didn’t you hear? They’ve passed a law saying that a woman can abort a child up to term if the child turns out to have red hair.
The English law distinguishes for various purposes between born persons and embryos and fetuses in utero. That distinction is reflected in Strasbourg jurisprudence too: see Vo v France.  The law is reluctant to accord non-born persons the legal and ethical status of born persons – a reluctance based primarily on the desire to protect the law relating to abortion and embryo manipulation. For the purposes of this post I do not take issue with that distinction in those contexts. But the distinction has no logical place in cases such as Heidi’s and Aidan’s which relate to the effect on born humans of statements about unborn humans. One does not have to assume anything at all about the legal personhood of a fetus in order to make a statement about a characteristic of that fetus which is profoundly and forseeably hurtful to a born human.
‘The Court reiterates that the notion of ‘private life’ within the meaning of Article 8 of the Convention is a broad term not susceptible to exhaustive definition. The notion of personal autonomy is an important principle underlying the interpretation of the guarantees provided for by Article 8. It can therefore embrace multiple aspects of the person’s physical and social identity. The Court further reiterates that it has accepted in the past that an individual’s ethnic identity must be regarded as another such element….. In particular, any negative stereotyping of a group, when it reaches a certain level, is capable of impacting on the group’s sense of identity and the feelings of self-worth and self-confidence of members of the group. It is in this sense that it can be seen as affecting the private life of members of the group.’
Scene: A pub in central London
It is obvious that saying that someone is better off dead ‘disseminates a negative stereotype’. It is obvious too that saying this is significantly more negative than the denigration of Roma people and holocaust survivors referred to in Aksu and Lewit. The fact that the statute is not the only source of a negative stereotype is neither here nor there.
Jane: What was that?
In argument, Heidi and Aidan, anticipating this objection, had contended that s. 1(1)(d) sent the message that the lives of those who are in fact born with such a handicap are of lesser value, and accordingly clearly, though implicitly, disseminated a negative stereotype about the living disabled.
Underhill LJ, giving the lead judgment in the Court of Appeal, said that he had ‘no difficulty accepting the general proposition which [the appellants derived] from Aksu or that it is applicable in principle to those with serious disabilities.’
John: They did something worthwhile there today, for once, didn’t they? [He motions towards the Houses of Parliament]
The argument that prevailed, therefore, was John’s argument in my supercilious opening. And Jane’s response – ‘Eh?’ – is surely the only coherent one. For, with the greatest possible respect to the Court of Appeal, the argument is palpable nonsense.
Image: Heidi Crowter: Copyright Don’t Screen Us Out
What should be done? Heidi and Aidan have indicated their intention to pursue their case in the UK Supreme Court and, if necessary, in Strasbourg. We will have to see what comes of that. But were the issue to find itself before the UK Parliament, by whatever route, a good first step (though it would not deal with Heidi and Aidan’s primary concern), would be to say that abortion for disability should not be permitted beyond the time limit for other abortions – 24 weeks gestation. There can be few disabilities thought to justify abortion which are diagnosed so late that abortion is not possible within that time limit. Were the law to be changed along those lines it would at least remove one small element of the offence to disabled people embedded in the existing law.
 Does the fact that the statute deals with a disabled fetus rather than a born disabled person lessen the negative impact on the born disabled person? Of course not.
Heidi and Aidan, though, relied on what the ECtHR court said about the applicability of Article 8. The relevant passage in the Aksu judgment says:
Heidi and Aidan contended that although in Aksu and Lewit the ECtHR was concerned with different social groups, the principle stated in them is applicable to cases of disability, which is equally an aspect of a person’s ‘physical and social identity’, and accordingly that negative stereotyping (of a sufficiently serious degree) of those with Down’s syndrome ‘or other serious disabilities’, will interfere with private life if and to the extent that it impacts on an applicant’s ‘feelings of self-worth and self-confidence’.
‘As I have already said, I accept that the Appellants, and no doubt many other seriously disabled people, genuinely perceive that section 1 (1) (d) sends such a message; and from their perspective I find that perception understandable.  However, that is not the only possible perspective.  Others draw a clear line at the moment of birth and deny that permitting the abortion of a foetus with a serious disability implies anything about the value of the lives of the living disabled.  That point was made explicitly, and with evident sincerity, by those promoting or defending section 1 (1) (d) in the Parliamentary debates: see para. 15 above.  The CEDAW Committee likewise evidently regarded its position as consistent with “not perpetuat[ing] stereotypes towards persons with disabilities”.   The truth is that whether section 1 (1) (d) is perceived as sending any negative message about the living disabled depends on the perspective – itself no doubt reflecting the circumstances and values – of the particular individual.  Its terms cannot be equated with explicit or unequivocal statements of the character of “gypsies are criminals” or “concentration camp survivors behaved like bandits” such as were before the ECtHR in Aksu and Lewit.’
‘the negative stereotype in question applied directly to the group to which the applicant belonged – Roma people and Mauthausen survivors – and their value as members of society was thereby directly impugned.  The present case is different.  Section 1 (1) (d) is not concerned with the group to which the Appellants belong – that is, those born with serious disabilities – and does not explicitly promote any negative stereotype about them: it is concerned only with the unborn.’
The second case relied on by Heidi and Aidan was Lewit v Austria, which applied this passage in Aksu. In Lewit a survivor of the Mauthausen concentration camp complained about an article in a right-wing journal in Austria about the conduct of survivors in the aftermath of their release in 1945, describing them as ‘robbing and plundering, murdering and defiling’ and as criminals who ‘plagued’ the surrounding country.  There was no remedy in Austrian law.  The Strasbourg court held that the survivor’s Article 8 rights had been infringed.
John: So what? The law is about the fetus. It has nothing whatever to do with people who are actually born.
Underhill LJ, in considering Aksu, assumed that the author of the book had in fact described Roma people in the way the appeallant alleged.
Acknowledgment
The ECtHR decided that his Article 8 rights had not been violated, saying that the Turkish court had been entitled to find that his characterisation of what the academic work said about gypsies was inaccurate, and entitled to find that the dictionaries were legitimately performing their role of recording language as actually used.
Suppose that Parliament passed a law saying that a fetus could be aborted until term solely on the grounds of being female. Or gay. It is inconceivable that this would not be regarded as in breach of Article 8 on the grounds of offence to born females/gay persons. What we see in Heidi and Aidan’s case is yet another example of the law of abortion being subject to special rules of construction which do not apply in other domains of law (the law relating to consent to treatment is another example of a domain where abortion is treated differently).
‘have very undesirable consequences if the perceived implications of a statement or measure, rather than its explicit or otherwise unequivocal meaning, could constitute an interference with Article 8 rights.  Most people belong to groups the membership of which is important to their sense of identity.  Obvious examples apart from the present case are groups defined by gender, ethnicity, religion or sexual identity; but that is far from being an exhaustive list.  It is not uncommon that measures or statements which do not on their face promulgate any negative stereotype about such groups may nevertheless be perceived by their members as having implications which devalue their identity or value: identity issues are notoriously sensitive.  It would have a serious impact on public decision-taking and public debate, including the values of free speech protected by Article 10, if perceptions of that kind were sufficient to constitute an interference with Article 8 rights.’
The first was a decision of the Grand Chamber of the ECtHR in Aksu v Turkey. The applicant, who was of Roma origin, complained about passages in an academic work which, he said, depicted Roma people as “engaged in illegal activities, [living] as ‘thieves, pickpockets, swindlers, robbers, usurers, beggars, drug dealers, prostitutes and brothel keepers’ and … polygamist and aggressive”.  He also complained about the definitions of the Turkish word çingene (“gypsy”) in two dictionaries which included a pejorative sense of “miserly”.  He claimed in a Turkish court that the promulgation of those stereotypes infringed his right to a private life.
Article 8 is the most elastic of the ECHR articles.  It broadly confers a right to live one’s life as one chooses, subject to the constraints necessary in order to live that life embedded in society. Article 14 provides that ‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’ There can be an actionable breach of Article 14 without a breach of any of the other articles of the ECHR, but the relevant discrimination has to be within the ambit of one of those articles.
Nonetheless, the Court of Appeal found that Article 8 was not breached. Why?
I am grateful to Heloise Robinson for her thoughts.
Section 1(1)(d) of the Abortion Act 1967 provides that the performance of an abortion will not be a criminal offence ‘when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith… that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.’