The US Supreme Court’s decision in Dobbs v Jackson Women’s Health Organization should have given pause to supporters of vague rights charters that expand the power of judges to decide contentious moral and political questions. This goes even more so for those who want to secure the ability of women to obtain safe and legal abortions.
Rather than reject such bills of rights outright, though, it has led some commentators to advocate the inclusion of a ‘right to abortion’ in the new Bill of Rights proposed by the UK government.
Such thinking is present in Kirsty Hughes’s recent thought-provoking post on this blog, where she criticises Dominic Raab for rejecting such calls. She maintains that ‘abortion rights are not adequately protected and that the Bill of Rights compounds their precarity.’
Contrary to Hughes, I will suggest that including a ‘right to abortion’ in the Bill could, in fact, be detrimental for those seeking abortions.
My aim in doing so is not to defend the Bill of Rights. Like all vague rights charters, it suffers from numerous problems and we would be better off without it. Instead, I want to argue that rather than add a ‘right to abortion’ to the Bill, a better way of securing abortion rights would be to abandon the focus on rights charters altogether and focus on amending the current abortion legislation.
Raab’s comments and the law on abortion
When rejecting the inclusion of a right to abortion in the new Bill of Rights, Raab said:
…the position on abortion is settled in UK law and it is decided by hon. Members across the House. It is an issue of conscience, and I do not think there is a strong case for change. With the greatest respect, I would not want us to find ourselves in the US position, where the issue is litigated through the courts, rather than settled, as it is now settled, by hon. Members in this House.
What is this settled law? The default position in England and Wales is that abortion is criminalised under the Offences Against the Person Act 1861 and the Infant Life (Preservation) Act 1929. The Abortion Act 1967, as amended by the Human Fertilisation and Embryology Act 1990, permits abortion by a registered medical practitioner if two such practitioners are satisfied that it meets one of the grounds in the Act. By far the most common ground is the one permitting terminations up to 24 weeks where ‘continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family’. As abortion before 24 weeks is safer than childbirth, in practice, this allows abortion on demand up until that time.
The Abortion Act 1967 also applies to Scotland but did not apply to Northern Ireland. The latter therefore had much more restrictive laws than the rest of the UK until they were repealed by the UK Parliament in 2019, though it is still difficult to obtain an abortion in that jurisdiction.
Barring Northern Ireland, the UK position has, for decades, reflected a liberal, compromise position that, at present, seems secure.
But we should not be complacent. Hughes ends her article with a stark warning. Recent political developments ‘have left us less assured in the permanency of things that were previously taken for granted’ and ‘if the political tide turns then abortion is not protected and the Bill of Rights curtails the prospect of the courts developing protection’. This, she maintains, ‘should ring alarm bells.’
Given this, Hughes sees the important questions as ‘(i) whether the Convention rights provide adequate protection and (ii) whether the Bill of Rights affects this.’ She acknowledges that the Convention affords ‘very little legal protection’ to women seeking an abortion. The ECHR jurisprudence could, however, be developed and there are a number of cases on this issue pending before the Strasbourg Court. From this, Hughes argues that ‘the problem that we face is that even if Strasbourg develops abortion rights the Bill of Rights may jeopardise the prospect of this permeating domestic law.’
Hughes then draws upon five reasons in support of her argument.
- The Bill adopts a textual and originalist interpretation of rights. As there is no mention of abortion in the Convention or the preparatory texts, this could be detrimental to abortion rights.
- It prohibits domestic courts from expanding rights beyond the protection accorded by Strasbourg.
- It weakens the link between ECHR jurisprudence and domestic rights. This means that if Strasbourg develops more protection for abortion ‘there is no guarantee that domestic courts will follow suit.’
- It recalibrates the balance between freedom of expression and privacy by giving ‘great weight’ to the former. This could affect the restrictions that are currently in place on the activities of pro-life protesters in the vicinity of abortion clinics.
- By prohibiting domestic courts from recognising new positive obligations the Bill ‘forecloses the prospect of developing obligations to provide abortion services’.
Many of these are valid concerns, albeit they would only eventuate if the UK both adopted a stricter approach to abortion than it does at present and Strasbourg decided to liberalise its position. This seems unlikely.
Take (3), for example. Weakening the link with Strasbourg is not necessarily a bad thing as Hughes’s argument can cut both ways. Cleaving to Strasbourg could raise problems if it adopted a more conservative approach. In the unhappy event that the Strasbourg Court held that life begins at conception, that the foetus has a right to life and therefore that abortion should be made illegal, we could easily ignore such a ruling and maintain our current position. This would be a good thing for abortion rights.
Other reasons would not be a problem if we abandoned the ECHR, repealed the Human Rights Act 1998 and replaced them with nothing. For example, if pro-life protestors were unable to challenge the restrictions on rights grounds then the problem in (4) would evaporate.
The downsides of a ‘rights approach’
More fundamentally, though, I want to argue that protecting abortion through a Bill of Rights may not be as advantageous as it first seems.
For one thing, it could be superfluous. In Raab’s statement, he said that recognising a ‘right to abortion’ could place the UK in a similar position to the USA. Responding that such comparisons are ‘misleading’, Hughes states that in ‘the US abortion was, prior to Dobbs, located by the Supreme Court in rights connected to liberty and privacy; it was not a right to abortion enacted by Parliament.’ This is true, but might a ‘right to abortion enacted by Parliament’ look remarkably similar to the abortion legislation that we already have?
If the right is not so narrowly framed then this could have unintended negative consequences. Imposing a broad ‘right to abortion’ without exceptions could turn some people who tolerate the current regime towards the pro-life movement. They might be happy with a medicalised ‘fudge’ but not approve of abortion in all circumstances. If it is to be a qualified right and have exceptions, then a debate about these could lead to a reduction in the time limits. Why take the risk and turn it into a live political issue that could be opportunistically used as a culture war wedge to impose further restrictions?
I am pro-choice and would approve of decriminalisation. However, I suspect that piecemeal reform of the current legislation would be a less contentious way of doing this than adding it as a ‘right’ to a charter where judges will be granted extensive powers to police its limits. In his astute Reith Lectures, Lord Sumption supposed that one reason why the right to abortion remained so controversial in the US when compared to the UK is because the former was introduced by judicial fiat with Roe v Wade, which ‘relegated the wider political debate among Americans to irrelevance’, whereas the latter developed a compromise position through Parliament that obtained wider support. Specific legislation through the political process is therefore a better method of protecting our rights than abstract charters and this will particularly be the case on polarised issues like abortion.
We should therefore not assume that a ‘right to abortion’ will make the practice more secure. The best guarantee of abortion rights is to hand more power to the people rather than to judges.
I would like to thank the editors of this blog, Michael Gordon and Alison Young, for very helpful comments on an earlier draft.
Craig Purshouse, Senior Lecturer in Law, University of Liverpool
(Suggested citation: C. Purshouse, ‘Abortion and the Bill of Rights: A Reply to Kirsty Hughes’, U.K. Const. L. Blog (19th July 2022) (available at https://ukconstitutionallaw.org/))