ABORTION : A QUESTION OF DIAGNOSIS

By LORD BORDER

THERE will be very few people who are surprised at the result of the Bourne case and fewer still, it may be hoped, who think that the present safeguards against the unjustifiable or incompetent performance of abortion will be slackened because of it.

It is unlikely that the law will be altered as the result of this action, even though the action has made it quite clear that the law has. lagged considerably' behind current and recognised medical practice. This lag is not always a thing to be regretted. A law which aims at being in advance of opinion and of practice is rarely a good law.

There are those who would welcome a catalogue of cases and circumstances in which abortion is legal. This rigidity has recently been introduced into the abortion law of certain countries. But the Bourne case, far from tending to confirm the desirability of such a change, demonstratei the advantages of elasticity in the law and the importance attaching to consideration of the individual case on its merits.

This elasticity has always been a characteristic feature of our judicial system, and is probably one of its greatest assets. Exact definition, whether in a country's constitution or in its laws, is no certain measure of their success in practice.

But though the action may not lead to any alteration in the written law, certain important judicial pronouncements during the course of the action will inevitably be quoted as determining precedent for future guidance, both in medical and in legal practice.

(r) It was the judge's opinion that the word " unlawful " is not a meaningless word in Section 58 of the Offences Against the Person Act, " and it necessarily follows that there may be the procurement of abortion which is lawful."

(2) To prevent the probable loss of life as the inunediate effect of allowing a pregnancy to continue is not to be regarded as S the Only lawful reason for performing an abortion. In his charge to the jury Mr. Justice Macnaghten said : " If pregnancy was likely to make a woman a physical or mental wreck you are quite entitled to take the view that a doctor . . . was operating for the purpose of preserving the life of the woman."

(3) Good faith and the sharing of the decision to perform abortion with responsible colleagues were clearly stressed, and they remain the criteria, the observation of which alone gives adequate protection to the public and to the doctor.

Without subscribing to the. view expressed by counsel during the course of the- case, that there is a strict analogy between the operation for abortion and the operation for amputation of a limb, it remains extremely probable that what the law demands of doctors is the same in both cases— the exercise of " reasonable care and skill." And " care " is clearly intended to include full consideration and competent judgement in every individual case.

. In all this we are really back where we were so far as basic matteis are concerned. On the day that a doctor becomes a registered practitioner two things happen to him : he receives certain privileges and he is expected to discharge certain obli- gations. Some of the privileges that he formerly enjoyed he now enjoys no longer ; for example, his horses were exempted from use by the fire brigade. (They are still exempt, but he drives a car.) But a privilege which he still enjoys is the protection of the law in any action brought against him, in both civil and criminal courts, so long as he can prove good faith and reasonable care and competence.

Only in the sense that the case has probed this fundamental relation between the public, the law and the medical man can it be said to have been, what it was at first described as being, a " test " case.

Dr. Bourne has been moved by the best possible motives to demonstrate to his fellow practitioners that they need not fear that they are necessarily committing an illegal act if they perform abortion under what seems to them to be justifiable conditions. It is quite certain that in his own particular case, carrying the status and prestige which he does, he ran but little risk of conviction at the hands of the judge who bore the heavy responsibility of the case and of a typical British jury.

It is not so certain that Dr. Smith, Dr. Jones or Dr. Robin- son would have run so slight a risk unless they had been able to adduce evidence that they had sought help and judgement from available colleagues.

The law will probably still prefer to decide between the criminal abortionist and the doctor who is serving his patient's best interest by a consideration of the degree of care and com- petence exercised in respect of any individual case which may be brought before it.

This is undoubtedly what the position was before the case was tried ; it is still the position ; it is clearly the position which best fulfils the public interest.

It is pertinent to enquire how the Bourne action will affect, in actual life, that mass of material which I might characterise as constituting the sub rosa class of abortion cases. For it is these which cause the gravest concern to the doctor, the sociologist and the thinking public.

Is it too much to hope that quite an appreciable number of this class will be increasingly brought into the open ? For many women may now avail themselves of advice, for seeking which they need feel no qualm nor any hesitation as to getting a " fair deal "—honest, decent women, each with her own individual problem, involving the possibility of damage to health of mind or body, or both.

Such a woman will now incline more naturally to consult her doctor, whereas formerly the tendency was to gravitate into the net of the professional abortionist. It may well be that in some cases the result of seeking such advice from a wise practitioner, and of getting efficient treatment of body and mind, may cause a new orientation towards the expected child. And should the diagnosis point to the need for abortion, the patient is rescued from the double dangers of sepsis and the more insidious mental poison of having been a party to a rather shabby transaction.

Doubtless there will still be an irreducible minimum of cases best described as a-social and doubtless these will, for some time to come, keep the professional abortionist in business. The law of supply and demand will unfortunately ensure this.

In conclusion, let it not be thought that Medicine and Law alone can—any more now than formerly—shoulder the whole onus of the urgent problem of abottion. It is, in many of its aspects, a matter for the statesman and economist quite as much as for the doctor and the lawyer.

The problem facing the economist is as urgent and vital as any of those involved in the recent case. Would that the economist's share of the problem might be advertised as widely and disinterestedly as Dr. Bourne has succeeded in doing for the share falling to Medicine and Law !