(Image source: Don’t Screen Us Out)

Last week the UK’s Court of Appeal rejected disability activist Heidi Crowter’s challenge to the UK’s law regulating abortion on the grounds of disability. 

I’ve included the relevant part of the 1967 abortion act – Section 1 (1) – below, placing emphasis on the parts related to disability.

Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith—

(a)  that the pregnancy has not exceeded its twenty-fourth week and that the 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; or

(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or

(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or(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.

The challenge to the law was on the basis that the usual time limit that applies in section (a) does not apply when the abortion is on the grounds of disability. Thus it is legal to abort a disabled child up to birth, where it would be illegal to abort an able-bodied one. This fact was not disputed by either party to the case. This, alleged Crowter’s side of the case, is straightforward ableist discrimination.

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I’m not going to get into all the legal details of the particular appeal here. Crowter’s case had already been rejected by the High Court, and only one claim was being reconsidered last week: that the UK’s law constituted an interference with the rights to private and family life of born people with Down Syndrome, on the grounds that it promoted negative stereotypes about them. (Not the rights of pre-born people with DS, because as the judges helpfully point out, they have no rights under UK law.) See Blánaid’s great post for a deeper dive into the ableism of the original decision.

What this appeal made abundantly clear though is that the claim by the UK government that its laws do not discriminate against born disabled people or depend upon that discrimination for justification is completely absurd.

Consider the following passage from the Court of Appeal’s judgement, referencing other cases that Crowter’s lawyers relied on as precedent (emphasis is mine):

My starting-point is that in both 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.

…

… 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. (p. 20)

The judgement uses the term “living disabled” throughout. At Minimise we’re great believers in charitably interpreting the words of people who disagree with us: assuming the best and trying to see what’s worthwhile about their points. But at a certain stage you just have to throw up your hands. The court maintains with a completely straight face that abortion on the grounds of disability has nothing – nothing! – to do with disabled people outside the womb and whether the framers of the legislation think that their lives are as worth living as those of able-bodied people. Silly us!

Later in the judgement (p. 21), the court warns about the danger to freedom of speech that would arise from this judgement being accepted. There would be, the court warns, a “chilling effect of potential liability to claims from persons relying not on what is actually said or done but on its perceived implications”. It adds that “the fact that the Appellants are here complaining of what are said to be the implications of a law which is not on its face concerned with the living disabled at all illustrates the problems which would arise”. (Emphasis mine.)

Reading this passage I was left with one major question. Am I going insane?

This is, again, the relevant text of the abortion act (only focusing on the disability ground):

Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion 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.

“If the child were born”. The actual specific justification for abortion in the Act is that the child would be (or would be at risk of being) disabled if and when they were born. To see the point, imagine that a baby was diagnosed in utero with an uncorrectable condition that only became active once they started breathing, but once active would rapidly lead to the child becoming significantly cognitively disabled. The child would while in the womb be able-bodied, but it would still be legal to abort them up to birth under the UK’s laws because there would be a substantial risk that if they were born they would be “seriously handicapped”.

So the whole basis of the law is facts about the lives of people after they are born. The prospect of a “serious handicap” while outside the womb is the stated justification for the destruction of the child inside the womb. Now of course every actual child who will be disabled outside the womb is also disabled inside the womb. But this just makes even clearer the obvious fact that the child outside the womb and inside the womb are the same individual. The born person has a disability because the pre-born person has a disability. Trying to convince us that there is one class of persons called “the living disabled” and a completely separate class of individuals called “the unborn disabled” is, and I use the term precisely, gaslighting.

This point is made even more vivid when you consider what’s at issue in the case: the fact that Section 1 (1) (d) dispenses with the normal time limit for abortions. The 24 week limit is meant to roughly capture “viability”, the point at which a child has a reasonable chance of surviving outside the womb. (That point is actually substantially earlier than 24 weeks and keeps getting earlier as medicine advances, which is one of the many reasons viability doesn’t make sense as a basis for legalising abortion.) But viability is a point past which it becomes particularly obvious that distinguishing between the ‘living disabled’ and the ‘unborn disabled’ is untenable. 

Imagine if there was a UK law that allowed for infanticide of disabled born children under the age of two months. The courts would, I hope, acknowledge that such a law would directly and lethally discriminate against “the living disabled”, and strike it down. But let’s say that such a law was invoked to end the life of a premature baby with Down Syndrome, born at say 30 weeks. That baby would clearly be among the “living disabled”. But under the current law, that same baby in utero – at the exact same age and with the exact same ability to survive outside the womb – would belong to a completely different class of people who can legitimately be killed. And killed because if they were born they would be disabled. Another pre-born baby at 30 weeks that was the same in every respect except disability could not be killed.

It does no good to protest, as the judges do, that the unborn have no rights. They do under UK law have interests, and those interests are considered substantial enough for the law to require that there be risk of “grave and permanent injury” or death to the mother in order to justify abortion of able-bodied preborn children after 24 weeks. The only thing that makes the difference here, that allows abortion up to birth without any risk of grave injury or death, is the risk of a disability being present after birth. The ‘no rights’ argument would only work if all pre-born children could be aborted under the same conditions. But that’s not the case: under the same circumstances, disabled babies can be aborted up until birth, and able-bodied ones only up to 24 weeks.

So under the current law this baby can be legally killed at 30 weeks inside the womb because they have Down Syndrome and would continue to have it after they were born. This, the court would have it, has no implications for how the United Kingdom thinks about the life of that same baby if they actually were born at 30 weeks with Down Syndrome. How silly Crowter and the other appellants are, thinking that “it’s legal to kill you because you would have a disability if you were outside the womb” implies any discrimination on the UK government’s behalf against people with disabilities outside the womb.

The court is of course right to point out that some people “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.” But that some people do it does not imply that it is a position that ought to be taken seriously by an actual court of law. There is no sophisticated argument here about moral status or bodily rights. This is just the Magical Birth Canal, Ableism Edition.

The UK’s courts are not willing to openly defend discrimination on the grounds of disability, which is why they’ve answered Crowter’s unanswerable case with this bizarre terminological dance. But you are entitled to believe your eyes: the UK’s law that allows abortion on the grounds that if a child is born they are likely to have a disability does, in fact, rest on discrimination against people born with disabilities. 

Ben