Image via Don’t Screen Us Out

Heidi Crowter is a 26-year-old woman from Coventry in England. If you follow her on social media, you’ll find out what’s going on in her life – her engagements as a motivational speaker; her recent wedding; selfies with her husband James; what cakes she’s baked; what restaurants she’s been to. What you’d expect of a social media feed for a woman in her 20’s. 

Máire Lea Wilson is also from the UK, and her feed is also pretty typical. She’s a mum of two little boys – Tom and Aidan – and posts the stream of cute photos and funny stories that kids typically provide.

And if the UK’s legal system treated people who have disabilities as equally human and equally deserving of rights as people who don’t, Heidi and Máire would probably never have met, and the only people following them on social media would be family and friends.

Instead, they challenged a law that says the lives of Máire and her eldest son Tom should be protected when Heidi’s and Máire’s youngest, Aidan, aren’t – just because Heidi and Aidan have Down Syndrome.

Within living memory, people with Down Syndrome – one of the most common genetic disorders – were treated as barely human. Their parents were told that they would not talk, go to school, or take part in family life and would likely die young. The best thing to do was place them in an institution. 

Now, society has moved away from this practice; it’s acknowledged that proper medical treatment and the care of a loving family enables people with Down Syndrome to flourish, learn and lead long and happy lives – including opportunities previously denied to them such as advanced education, holding a job, living independently, and getting married. Politicians and public figures alike pay lip service to the rights of people with Down Syndrome. The cruel taunts and dehumanising terms that used to be aimed at them are no longer heard in polite company. 

But even as some people with Down Syndrome are more visible than ever in the UK – becoming TV presenters, acting, and modelling – the law in the UK still actively classifies people with Down Syndrome as less worthy and specifically allows lethal, ableist discrimination against them. The attitudes that classified newborn babies as ‘abnormal’ and pushed them into anonymous institutions have not gone away; they were inserted into legislation which affects every person with Down Syndrome – and every pregnant woman – in the UK.

But even though the problem with this law is discrimination on the grounds of disability – something we should all be able to agree is wrong – since the context is the legal availability of abortion, anti-discrimination campaigners have an uphill battle against a powerful status quo: that abortion provision is an uncomplicated good; that “choice” happens in a context-free vacuum and can never be influenced by lack of resources, stigma, and ableist attitudes from medical professionals; that anyone wants to talk about why a woman would choose to abort a wanted foetus because of a diagnosis of Down Syndrome is interfering and authoritarian. 

How the law discriminates

The law Heidi and Máire challenged is section 1(1)(d) of the Abortion Act 1967.

The 1967 Act made legal abortion possible in the UK. It did this by laying out the circumstances in which an abortion could be performed without the person performing the abortion being held criminally liable for doing so (see our explainer blog on Britain’s abortion laws here).

We can divide the circumstances in which the Act allows abortion into two categories: those in which an abortion is allowed up until 24 weeks of pregnancy, and those where an abortion is allowed up until birth. 

Abortion is permitted until birth to save the life of the pregnant woman (Section 1(4)); when continuing the pregnancy would involve risk to the life of the pregnant woman greater than if the pregnancy were terminated (Section 1(1)(c)); to prevent grave permanent injury to the physical or mental health of the pregnant woman. (Section 1(4)); and when the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman. (Section 1(1)(b)).

Thankfully, these situations are all relatively rare; the UK statistics bear out that abortions under these grounds are only a very small percentage of all abortions. What these circumstances have in common is that they focus on the pregnant woman and reference the risk to her. The justification for ending the foetus’s life is not any fact about the foetus; it is all about adverting a serious risk to the life or health of the mother.

This is in sharp contrast to the part of the law Heidi and Máire object to. Section 1(d) outlines the only other circumstance in which it is legal to terminate a pregnancy past 24 weeks: 

“[if] there is substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.”

This language is outdated and offensive. It is also incredibly misleading. Most people when reading this section and its vague references to “suffering” and “abnormalities” would assume that such circumstances are exceptional, extreme, and rare. But abortions are performed under this ground for conditions such as Down Syndrome, cleft lip and cleft palate, club foot, and even multiple pregnancy (yes, twins and triplets). These examples are particularly stark because of all the people with these conditions living their lives without “suffering” in the slightest. 

But the central problem here isn’t the ridiculously outdated stereotypes. Look again at how the section is phrased. There’s no reference at all to the pregnant woman; it’s not about how the pregnant woman feels about the “handicap” or how the foetus’s condition impacts her. Unlike every other section in the Act which permits abortion until birth, this section is all about the foetus – or rather, the ableist standard the foetus has failed to fulfill. 

This brings us back to why this isn’t actually about the morality of abortion, and why you don’t have to be pro-life to agree that this law is wrong. The challenge to Section 1(1)(d) is simply that, as the law stands in the UK, a non-disabled foetus is legally protected (i.e., cannot be aborted) after 24 weeks of pregnancy unless a very limited set of conditions (serious risk to the mother’s life or health) apply. This is in accordance with what a lot of pro-choice people claim to believe: since this is about bodily rights, not personhood, a woman can choose to abort up until the point of viability. The UK’s law enshrines that idea. 

BUT it then goes on to say that if the viable foetus (that would otherwise be legally protected) has a disability, then all that protection is gone. You can legally end its life right up until birth

The question we are left with is: what is the difference between the viable foetus who cannot legally be terminated and the viable foetus who can? And the only answer is the disability. There are only two positions that can make sense of this difference: 

  1. A foetus with a disability becomes a valuable person at a later date than a foetus without one. 
  2. Both foetuses are persons, but the one with the disability is a less valuable person. 

To take up either of these positions – to make “not having a disability” determinative of whether one is a person or to say that having a disability makes a person less valuable – is indisputably and necessarily to discriminate against people with disabilities in the most fundamental way.  

And here is the part that should motivate even people who completely disagree with us about abortion: 

The distinction this law makes between who matters and who doesn’t isn’t limited to the womb. 

Look at Position 1 and 2 again. Neither are specific to pregnancy or abortion at all; trying to justify Section 1(1)(d) with either of these positions moves us away from the familiar grounds of bodily rights, the interests of the pregnant woman vs those of the foetus, etc. You could try to backtrack (Position 1 or 2 is true about foetuses, but it’s nothing to do with born people.) 

But that’s completely ad hoc. Why would an important truth about personhood or the different value of persons apply to 39-week-old foetuses but not 38-week-old born babies? How could being born make such a difference, when the way we framed Position 1 and 2 didn’t involve the pregnant woman, her body, or her relationship with the foetus at all? And if having Down Syndrome or a cleft lip is enough to make a 39-week-old foetus not a person or a much less valuable person than a 25-week old foetus, it seems weird that a 1-week-old baby with very severe disabilities is exactly as much of a person as, say, a 30-year-old athlete with the most perfectly functioning body of all time. 

All this shows that there is no way to say that foetuses with disabilities deserve less protection before birth while also saying that born people with disabilities are just as important and valuable as everyone else. 

And it is obvious to Heidi and to Máire just what the law says about them and their families – their campaign describes it as “downright discrimination”. 

Unfortunately, the UK High Court recently upheld the law. Their full decision is available here; as you’ll see, the judges did not really grapple with this argument. (We hope to do a deeper analysis of the precedents and legal principles the judges cite as why they let the law stand and how the decision was incorrect as a matter of law in a further blog post.) Heidi spoke out after the decision: “We face discrimination every day in schools, in the work place and in society. And now thanks to this verdict the judges have upheld discrimination in the womb too.”

But Heidi and Máire are planning to appeal the verdict, with help from the thousands of families supporting their campaign. These families know first hand how, once a diagnosis of a condition like Down Syndrome happens, medical providers assume that their next appointment will be a termination. Who’ve been offered abortion again and again, well after their baby is not just viable, but as big and developed as many of the preemies in the ward a few doors down. Who know from experience that their child with Down Syndrome is just as important and valuable as anyone else. And, of course, people with Down Syndrome who love their lives, but who are hurt every day that their country considers an extra chromosome such a disaster that it can justify ending a life, by knowing that the state of which they are a citizen thinks they’re a burden it should help parents avoid. 

Check out the Don’t Screen Us Out campaign website to see how you can help with their work.