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Can anyone explain the basis of this lawsuit to me?

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AlterEgo

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I can almost see the point that being able to abort because of a Down's diagnosis devalues people with Down's Syndrome but then the argument should have been that Down's shouldn't be an allowable reason for abortion at any point in the pregnancy.
I think this would have been deeply problematic, as currently no justification is needed to carry out an abortion up to 24 weeks, and forcing women to disclose a reason for aborting is fraught with more problems than the current situation.
 
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najaB

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I think this would have been deeply problematic, as currently no justification is needed to carry out an abortion up to 24 weeks, and forcing women to disclose a reason for aborting is fraught with more problems than the current situation.
Exactly. So the question then becomes: If it's acceptable to abort because of a Down's diagnosis at 23 weeks, why is no longer acceptable at 25 weeks? What about that is specifically discriminatory against those who are living with Down's Syndrome?
 

DarloRich

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Maybe I'm being dense here, but I cannot understand how the law is discriminatory against her. How does it impact her if other people choose to/not to have a child with Down's syndrome?

May I suggest having a look at the full judgement. It isn't that long or technical. I think there are substantial differences between what has been reported in the media and the case presented.
 

AlterEgo

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Exactly. So the question then becomes: If it's acceptable to abort because of a Down's diagnosis at 23 weeks, why is no longer acceptable at 25 weeks?
This is the age old question of abortion - when can you do it? In my view any law which sits anywhere between an outright ban on the practice and full no-reason abortion until actual birth is inherently irrational and not bound up in reason. There is no good reason for anyone to suppose it's morally acceptable at 23 weeks but not at 25.
 

Ediswan

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The question put before the court was if her rights were being infringed or not
According to the judgement linked in post #27, the question put to the court was whether the Abortion Act 1967 is compatible with the European Convention on Human Rights, not about any specific individual's rights.

In this claim for judicial review the Claimants seek a declaration of incompatibility under section 4 of the Human Rights Act 1998 (“HRA”) in respect of section 1(1)(d) of the Abortion Act 1967 (“the 1967 Act”). The Claimants contend that section 1(1)(d) is incompatible with Articles 2, 3, 8 and 14 of the European Convention on Human Rights (“ECHR”), which are all “Convention rights” as set out in Sch. 1 to the HRA.
 

ComUtoR

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That's another false equivalence.

Actually it isn't.

There is a very specific caveat in the law that allows discrimination based on a specific, and arguably, socially determined factor. A hospital near me has a policy never to reveal the babies sex because female children are at a higher risk of abortion. Because of the cultural makeup of the local community, female children are seen as a social burden so they tend to abort. There is an equivalence in that children with Down's will also tend to be aborted because they are seen as a burden.

That is a completely valid question, but was not the one put before the court. The question put before the court was if her rights were being infringed or not, and that's what I'm struggling to understand - what was the specific discrimination against her?

Ultimately this is most likely why her case failed. She specifically wasn't discriminated against. Who fights for those who haven't been born ?

Exactly. So the question then becomes: If it's acceptable to abort because of a Down's diagnosis at 23 weeks, why is no longer acceptable at 25 weeks?

The law gives a legal limit at 24 weeks. Should exceptions be allowed or should the limit be raised or lowered ? Where that line is drawn should be the same for everyone. Her point is that allowing the limit to be breached means that Downs, or others are deemed lesser deserving of life.




There have been many advances in medicine with many chances for early diagnosis. As a parent I still remember having our 20-Week scans and anxiously waiting the Nuchal fold scan results. Having that 24 week limit still provides time enough for early diagnostic testing for various medical issues. I'm not saying that the limit is right or wrong, only that allowing specific reasons to break it IS discrimination.
 

najaB

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May I suggest having a look at the full judgement. It isn't that long or technical. I think there are substantial differences between what has been reported in the media and the case presented.
I can see that. I've only reached page 12 so far but this stands out to me immediately:

46. The background to that statement includes the fact that the CEDAW Committee has long advocated the decriminalization of abortion. That is not the position taken by the United Kingdom. If Parliament were simply to remove section 1(1)(d) of the 1967 Act, the consequence would be to criminalize the conduct of more women.
For this reason, if no other, I think that the judges have made the correct decision. I'm continuing to read...
According to the judgement linked in post #27, the question put to the court was whether the Abortion Act 1967 is compatible with the European Convention on Human Rights, not about any specific individual's rights.
Yes. I'm reading it now.
The law gives a legal limit at 24 weeks. Should exceptions be allowed or should the limit be raised or lowered ? Where that line is drawn should be the same for everyone.
It cannot and must not be the same for every case. Not every family is the same, neither is every pregnancy.
 
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AlterEgo

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I'm afraid that

If Parliament were simply to remove section 1(1)(d) of the 1967 Act, the consequence would be to criminalize the conduct of more women

is not a justification for criminalising or decriminalising an action.

"If we criminalise this, it means people who do this will be criminals". Um, yes? The point is, does society think this is a morally objectionable thing to do or not? What are the arguments for both sides?

"If we make it illegal to be gay again, this will result in millions of men being criminalised" isn't the argument against recriminalising homosexuality. That argument is to do with the privacy of individuals who have consenting sexual relations which inflict no harm and whose conduct is beyond the real of the state. That's it.
 

najaB

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I'm afraid that

If Parliament were simply to remove section 1(1)(d) of the 1967 Act, the consequence would be to criminalize the conduct of more women

is not a justification for criminalising or decriminalising an action.
It is, however, justification for the court declining to strike down a provision in existing law. The role of the judiciary is not to criminalise something that the legislature has specifically made legal.

Edit: I wrote the above before I finished reading the judgment, but the Court took a similar line:
130. In the present case, as in that case, the forensic process is necessarily a limited one. We have had evidence placed before us by the parties but others whose lives will be affected by any change to the 1967 Act have no opportunity to take part in these proceedings, in particular women whose choices would be curtailed (and potentially made criminal). We know, from the debates in the House of Lords that have been placed before us, that views were expressed by some Parliamentarians about how cruel it would be to compel a woman to give birth to a child she did not want and did not feel able to look after. There is powerful evidence before this Court of families which provide a loving environment to children who are born with serious disabilities but we do not know what would happen, in a counter-factual world, in which some women have been compelled by the fear of the criminal law to give birth to children who will not be loved or wanted. This is just one example of the intensely difficult issues which are better debated in Parliament, which can take account of different interests and viewpoints, rather than in litigation.
 
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ComUtoR

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It cannot and must not be the same for every case. Not every family is the same, neither is every pregnancy.
I would agree.

There has to be a line drawn somewhere. That line should be the same for everyone otherwise it does become one life is worth less than another.

Should we allow abortions at 30 weeks ?

Consider that to be rhetorical. It is a huge debate over where life begins and how society treats that life once born. An emotive subject for everyone and valid points on all sides.

Personally, I had one of those miracle babies where viability was at the absolute minimum and even at birth it could have gone either way.

Anyone facing a life changing decision needs support and understanding.
 

najaB

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I would agree.

There has to be a line drawn somewhere. That line should be the same for everyone otherwise it does become one life is worth less than another.
The thing is, the line is the same for everyone - after 24 weeks two doctors have to agree that terminating the pregnancy is the best option. The law doesn't, as suggested by the article, single out Down's Syndrome.

Points 125-127 lay out best for me why the judgement went the way that it did:
125. Thirdly, it is important to bear in mind that Parliament gives a choice to women; it does not impose its will upon them. The evidence before the Court powerfully shows that there will be some families who positively wish to have a child, even knowing that it will be born with severe disabilities. But the evidence is also clear that not every family will react in that way. As it was put on behalf of the Defendant, the ability of families to provide a disabled child with a nurturing and supportive environment will vary significantly.

126. The evidence is also clear that, although scientific developments have improved and earlier identification may be feasible, there are still conditions which will only be identified late in a pregnancy, after 24 weeks. As Prof. Thilaganathan also explains there will be circumstances where a woman only becomes aware of the pregnancy very late on in that pregnancy.

127. Furthermore, Parliament has considered the question whether it would be feasible or desirable to set out an exhaustive list of foetal abnormalities rather than having the broader terminology used in section 1(1)(d). It was the specific recommendation of the Select Committee Report which preceded the debate on what became the 1990 Act that such an exhaustive list would be neither feasible nor desirable. This is supported by the evidence filed in these proceedings by Prof. Thilaganathan, who explains why individual clinical consideration is necessary and that any statutory list of conditions would quickly become outdated in the light of rapidly developing scientific knowledge.
So I can understand the judgement and the case wasn't brought on the exact grounds stated, though I can see how the 'dumbed-down' version reads that way.
 

ComUtoR

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The thing is, the line is the same for everyone - after 24 weeks two doctors have to agree that terminating the pregnancy is the best option. The law doesn't, as suggested by the article, single out Down's Syndrome.

No it doesn't but...

(d)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

Is a significantly key point. Sadly, this is where Down's Syndrome is being used as a reason for an abortion. This specific clause unfortunately means that the line isn't the same for everyone. 'Mental Health' has moved on since 1967

If you take...

The Abortion Act 1967 (as amended by the Human Fertilisation and Embryology Act 1990) states that an abortion after 24 weeks is legal if it is performed by a registered medical practitioner (a doctor), and that it is authorised by two doctors, acting in good faith, on one (or more) of the following grounds (with each needing to agree that at least one and the same ground is met):

  • that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or
  • that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or
  • 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.

The third ground means that if it is found that a foetus has Down’s syndrome, the pregnancy may be terminated after 24 weeks.


The Down’s Syndrome Association (DSA) believes that the 1967 Abortion Act (as amended by the Human Fertilisation and Embryology Act 1990) needs to be properly reviewed in light of the advances in medical science and testing options now available. The DSA would like to see sufficient time given by Parliament for the consideration of all evidence relevant to this important debate.

...and align it with points 125-127 you begin to understand the greater picture.

I will stress that I do not know what the right decision is or where life does or doesn't begin or even begin to understand what others are going through. Irrespective of the merits of the case, I can see why she feels discriminated against. Legal points aside, if you wanted to change the law then you need to highlight where change needs to happen. I can see why the case was brought, why it failed, and why there needs to be change.
 

Dai Corner

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No it doesn't but...



Is a significantly key point. Sadly, this is where Down's Syndrome is being used as a reason for an abortion. This specific clause unfortunately means that the line isn't the same for everyone. 'Mental Health' has moved on since 1967

If you take...



...and align it with points 125-127 you begin to understand the greater picture.

I will stress that I do not know what the right decision is or where life does or doesn't begin or even begin to understand what others are going through. Irrespective of the merits of the case, I can see why she feels discriminated against. Legal points aside, if you wanted to change the law then you need to highlight where change needs to happen. I can see why the case was brought, why it failed, and why there needs to be change.
It seems to me that rather than try to change the law campaigners need to persuade doctors that a person with Down syndrome does not have "such physical or mental abnormalities as to be seriously handicapped."
 

GrimsbyPacer

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Any legal definition of when life begins will ultimately be incorrect, we are comprised of living human cells at conception, and the combined cells existed long before that.
We try to refer to unborn babies as foetuses to dehumanise them, but the fact is everyone develops day by day throughout the whole life, and line drawing such as 24 weeks for abortions, or 21 years for adulthood, will never be reliable benchmarks.
I don't believe women who abort, many who are pressured to by family or doctors, should be criminalised. The real problem isn't the discriminatory law, it's the lack of support for new mothers being unable to afford a child due to the career threats for companies, and less help than there used to be for raising a family (the cut in number of kids that can be claimed for).
Many women feel they have no choice but to abort, especially when, Downs babies are not portrayed in a good light, but as a terrible burden.
 
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Busaholic

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I completely understand why Heidi Crowter feels this way and felt impelled to start a legal challenge, if only to bring the subject to the attention of both the public and to our lawmakers. However, I can also understand why her arguments were not found strong enough to alter the law, and for that I am glad. We live in a society where abortion was legalised in certain situations fifty years ago, with a vote to that effect in the Houses of Parliament, but some have never accepted that and there are organisations and individuals determined to return GB to its pre-1967 status. This may not be at the level seen in some North American states, but I wouldn't bet against a mirroring here within years.

My infant and early childhood years were spent living in a house opposite a prefab where a Downs Syndrome young adult and his mother lived, and he was very strong but severely mentally impaired. For much of the time in the day he stood at a gate leading to the back garden, a small area of scrubland, throwing stones and clods of earth onto the pavement. I admit to being scared to death of him, which I know sounds awful, but entirely rational. Being not too long after WW2, with the NHS creaking into life, and primary school classes of 50, I don't believe there was any provision for families like this. Such misery as was evident in this case (the mother looked older than my grandmother, and much sicker) could now be averted by the special provisions should the prospective mother choose it. Of course, the choice might be to continue with the pregnancy, and someone with Heidi Crowter's competence and zest for life might result, but please don't doubt the opposite is quite likely to occur too.
 

Pinza-C55

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It's like saying she had less right to be born than anyone else.
I was an unwanted baby (adopted though), I could therefore have been "aborted" myself, it might not make sense, but it causes pain to know that your life was in jeopardy at someone else's whim. It's worse for her, as there is this stigma that Downs people are wrong when they aren't.

Until you are born , your life is dependent on your mothers body to feed you. I agree with the argument that what a woman does with her body is entirely up to her and she shouldn't be legally forced to carry a foetus she doesn't want.
 

najaB

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Until you are born , your life is dependent on your mothers body to feed you. I agree with the argument that what a woman does with her body is entirely up to her and she shouldn't be legally forced to carry a foetus she doesn't want.
Without getting into discussion of the rights and wrongs of abortion, there is one problem with that line of argument - viability. There is a point (somewhere around 24 weeks) where the foetus is capable of surviving outside the womb and so some people hold that from that point onward it isn't solely the woman whose rights/needs have to be taken into consideration.

I do agree with the position that no woman should ever be forced to carry a baby to term against her will.
 

GrimsbyPacer

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We are all both pro-life, and pro-choice at the same time, we all believe mothers should be able to choose how many children they have, and we believe it is wrong to kill.
The eternal argument is all down to two timings...
1, When is the last time a mother should be able to choose?
Views vary, some say before conception, some say after birth, most say 8-24 weeks, There's no right answer.
2, When is a human life created?
Again views vary, and you'll never find a satisfactory answer.

So the Abortion/Anti-Abortion argument will never be won, and if it is, it will be the wrong answer as the situation is more complex.

But this thread is about, whether or not Downs Syndrome people are discriminated against, with the routine screening and encouraged later abortions of their type allowed at later times in the pregnancy? I know two people with Downs, they are kind, happy / sad as anyone else.
This world is all too keen on getting rid of people not liked, kids in orphanages, elderly in care homes, criminals in prison, Mentally ill in "institutions" etc. We are all guilty is wishing people would disappear, but can anyone here look a Downs Syndrome person in the face and say it's worse for a "normal baby" to be aborted at 25 weeks than a Downs baby?
It's eugenics, and no matter how it's sugar-coated it is always ugly when sections of society are killed solely because of their genetics.
 

Pinza-C55

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Without getting into discussion of the rights and wrongs of abortion, there is one problem with that line of argument - viability. There is a point (somewhere around 24 weeks) where the foetus is capable of surviving outside the womb and so some people hold that from that point onward it isn't solely the woman whose rights/needs have to be taken into consideration.

I do agree with the position that no woman should ever be forced to carry a baby to term against her will.

But it's still the womans own body so the opinions of "some people" are irrelevant.
 

AlterEgo

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But it's still the womans own body so the opinions of "some people" are irrelevant.
This is not an argument. You need to explain *why* bodily autonomy is sacrosanct above literally everything including the right for a baby to be born, as well as explaining why you view the baby as an inherent part of the mother and not a separate entity with its own rights.

“It’s my body” is not, anyway, the issue at play in the thread. No, this thread hinges very much on the moral dilemmas presented by the knowledge of the arrival of a disabled baby as opposed to a healthy one.

I tend to view people who have a fixed and comfortable view on abortion, regardless of whether they’re for or against it, with suspicion. I’m suspicious of moral certainty whether it’s from religious conservatives or people who oppose them.
 

najaB

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But it's still the womans own body so the opinions of "some people" are irrelevant.
The problem is that once past the point of viability the baby is basically "trapped" in the womb.

“It’s my body” is not, anyway, the issue at play in the thread. No, this thread hinges very much on the moral dilemmas presented by the knowledge of the arrival of a disabled baby as opposed to a healthy one
A moral dilemma is exactly what it is. I share your suspicion of anybody who expresses moral certainty about it.
 

Pinza-C55

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This is not an argument. You need to explain *why* bodily autonomy is sacrosanct above literally everything including the right for a baby to be born, as well as explaining why you view the baby as an inherent part of the mother and not a separate entity with its own rights.

“It’s my body” is not, anyway, the issue at play in the thread. No, this thread hinges very much on the moral dilemmas presented by the knowledge of the arrival of a disabled baby as opposed to a healthy one.

I tend to view people who have a fixed and comfortable view on abortion, regardless of whether they’re for or against it, with suspicion. I’m suspicious of moral certainty whether it’s from religious conservatives or peopl

That would involve more time and effort than I am prepared to invest, and I am not trying to convince anyone, merely stating my opinion. I'm a man so I cannot get pregnant therefore I have no vested interest in the matter.

"The problem is that once past the point of viability the baby is basically "trapped" in the womb."

It's also physically attached by an umbilical cord and requires nutrition from the mother. If you wish a woman to give birth to a child she doesn't want , it will either require cutting her open via a Caesarian Section or making her undergo the pains of childbirth. I don't know how that would work.
 

najaB

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"The problem is that once past the point of viability the baby is basically "trapped" in the womb."

It's also physically attached by an umbilical cord and requires nutrition from the mother. If you wish a woman to give birth to a child she doesn't want , it will either require cutting her open via a Caesarian Section or making her undergo the pains of childbirth. I don't know how that would work.
I know. There are no simple answers. I'm just pointing out that while a post-viable foetus is dependant on the mother's body for nutrition, oxygen, etc. they are only in that state of dependence because of where they are located. If they were outside the womb then they would be capable of independent existence. So the "her body, her decision" argument is no longer as strong as it was earlier in the pregnancy.
 

Pinza-C55

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I know. There are no simple answers. I'm just pointing out that while a post-viable foetus is dependant on the mother's body for nutrition, oxygen, etc. they are only in that state of dependence because of where they are located. If they were outside the womb then they would be capable of independent existence. So the "her body, her decision" argument is no longer as strong as it was earlier in the pregnancy.

My point is that they are not outside the mothers womb and to get outside the womb requires either painful surgery or painful childbirth. If you wish a woman to be compelled by law to endure unwanted surgery or pain then I am at a loss for words.
 

Dai Corner

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My point is that they are not outside the mothers womb and to get outside the womb requires either painful surgery or painful childbirth. If you wish a woman to be compelled by law to endure unwanted surgery or pain then I am at a loss for words.
It could be argued that she committed to potentially give birth or have a Caesarian when she had sex without contraception up to nine months previously (non-consensual sex excepted, obviously).
 

najaB

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If you wish a woman to be compelled by law to endure unwanted surgery or pain then I am at a loss for words.
No, of course I don't. It's just one more reason why this whole issue is so complex and the "her body, her decision" argument is so specious.

Effectively if you make that argument you're saying that the foetus has none of the rights and protections afforded to any member of society, but displace it 50cm or so in any direction and it would have the full protection of the law. That doesn't sit right with me.

On the other hand, I have no issue with the principle that the rights and considerations of the born should be given greater weight and consideration than the unborn.
It could be argued that she committed to potentially give birth or have a Caesarian when she had sex without contraception up to nine months previously (non-consensual sex excepted, obviously).
That is a very dangerous road to start down. Circumstances change, contraceptives fail, etc.
 
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ainsworth74

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It could be argued that she committed to potentially give birth or have a Caesarian when she had sex without contraception up to nine months previously (non-consensual sex excepted, obviously).
What about when you are using contraception but it fails? When the condom splits? When the anti-biotics your taking interact poorly with the pill? When you're in the wrong part of your cycle for the morning after pill to be effective? Did she commit to giving birth then?
 

GrimsbyPacer

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The i newspaper has a good editor's argument about this court case on page 17 today (On the side supporting Downs people), it says the same legislation is used to terminate people with cleft lips, or club feet too.
 
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