Harry G Frankfurt’s classic monograph “On Bullshit” begins with a very simple but striking observation:
One of the most salient features of our culture is that there is so much bullshit.
There is indeed and much of it is, sadly, to be found on the pages of national newspapers where, today, we find The Daily Telegraph operating firmly in bullshit mode:
Jeremy Hunt is to issue new guidance making it clear to doctors that sex-selective abortion is “unacceptable and illegal”.
Hunt can issue all the guidance he likes, it doesn’t alter the fact that the Abortion Act 1967 is entirely silent on the subject of sex-selective abortion or that such abortions will remain entirely lawful provided that they can be justified by doctors acting in good faith on one or more of the grounds specified in the Act; for example where there is a significant risk that the foetus may be born with a serious sex-linked genetic disorder, a fact that, as we’ll see very shortly, journalists working for the Daily Telegraph know perfectly well.
The health secretary and GMC will close what MPs have described as an “utterly preposterous” loophole used by prosecutors to avoid bringing charges.
The precise nature of this “utterly preposterous” loophole was pretty clearly explained by the former Director of Public Prosecutions, Keir Starmer, who presided over the decision not to prosecute in the cases of the two doctors who were caught up in a ‘sting’ orchestrated by The Telegraph, in an interview with Zoe Williams of The Guardian, which was published in October 2013; and for reasons which will quickly become very obvious, The Telegraph has never once acknowledged even the existence of this interview, let alone what it has to say about why their ‘sting’ failed to result in any kind of criminal prosecution.
Take the decision on sex-selective abortion, in which he ruled not to prosecute two doctors who had been had by a media sting operation (two journalists, pretending to be carrying a female foetus, asked two doctors for an abortion on those grounds). “In order to make the sting work, the undercover team asked for an abortion based on gender, but then immediately mixed in other reasons. So in both cases, there was reference to previous failed female pregnancies. Chromosomal defects were referenced. In one of the cases, the doctor was told there was a test in France.
“She said, ‘What is this test? And how pregnant were you?’ And the journalist said, ‘I was in France. I was eight weeks’ pregnant.’ When the doctor was then arrested, she said, ‘I didn’t believe her. I don’t think there is a test at that point of gestation. I just assumed she was lying and wanted an abortion for some other reason’.”
It’s a fascinating case – a sex-selective abortion charge would never have stuck because the journalists were just too sloppy, but the CPS could have charged the doctors with not asking enough questions. “Well, obviously, when we got to that stage of the analysis, we called for all available guidance. Because those prosecutions are better if you can say, ‘there is a very clearly understood set of professional rules, that everybody knows you must follow, which you did or didn’t follow. But the guidance is very limited, and it didn’t indicate even how you carry out the assessment.”
So, it would appear that the Telegraph’s “preposterous loophole” amounts to nothing much more than their own journalists botching the entire sting operation in their desperation to get a “result” for their employer plus the fact that the law trusts doctors to exercise their own good professional judgement when dealing with requests for an abortion, as it does for other medical procedures, not that the newspaper chooses to mention any of this in their current article:
The guidance follows an investigation by The Telegraph which uncovered doctors who were willing to terminate pregnancies for women who said they did not want to have a baby girl.
One of the doctors did so despite likening the practice to “female infanticide” while the other told a woman her job was not to “ask questions”.
As for the matter of a number of doctors pre-signing abortion forms as the second signatory on the form – a matter on which the Department of Health is also to issue new guidance to doctors, what neither The Telegraph nor the Department of Health will tell is that the practice of abortions being backed up with a second medical opinion arose from the case of Dr Aleck Bourne who, in the late 1930s, was tried and acquitted on a charge of performing an illegal abortion on a fourteen year-old girl who became pregnant after being raped by five officer of the Royal Horse Guards.
Bourne performed the procedure at St Mary’s Hospital after the girl had been turned away by doctors at St Thomas’ Hospital on the grounds that she might be carrying “a future prime minister” and was subsequently tried at the Old Bailey in July 1938 under section 58 of the Offences Against The Person Act 1861, which remains in to this day, but was acquitted of the charge of illegally procuring an abortion after successfully arguing that the Act permitted a defence of justification where an abortion was carried out before twenty-eight weeks gestation and under circumstances in which the woman’s physical or mental health was in danger. Bourne’s case set an important legal precedent in terms of establishing that doctors were permitted to carry out abortions in certain limited circumstances but did not lift the threat of prosecution from doctors who performed such procedures because it was still open to the State to argue that an individual had been too lax in their interpretation of the severity of the circumstances under which the abortion had been performed and so, in order to provide themselves with a secure defence should such a situation arise, doctors voluntarily adopted the practice of obtaining a second opinion prior to terminating a pregnancy for clinical reasons.
The notion that the “two doctor rule”, as it quickly became known following its incorporation into law in the Abortion Act 1967, has or ever had anything at all to do with safeguarding the interests of women is a complete fiction, perhaps a necessary fiction in the context of the parliamentary debates which led to the Act but one which today is long past its “sell-by-date” and which serves no useful legal or clinical purpose. It is a requirement that could, and should, have been dispensed with long ago and it remains in effect today only because of its continued support amongst MPs and others who are fundamentally opposed to abortions taking place in pretty much any circumstances, for most part on purely religious grounds, and who are unwilling to let go of anything they see as barrier to women exercising control over their own bodies – and that includes The Telegraph, which has become so overtly Roman Catholic in it’s stance on numerous social issues since it was taken over by the Barclay Brothers in 2004, that it can only be a matter of time before its starts to publish an edition in Latin.
Equally, what The Telegraph won’t tell you is that currently there is very little concrete evidence of sex-selective abortions actually taking place in the UK, and what little there is other than a few anecdotes and unverified claims that it “common knowledge” that such abortions are practised in some communities – which amounts to just a single statistical study by Dubuc and Coleman – suggests that there could be around sixty “missing” female births a year in the current figures for women living in the UK who were born in India and who already have two or more children and it is entirely unclear whether and to what extent that may be accounted for by abortions carried out in the UK given that the limited anecdotal evidence that does exist suggests that where sex-selective abortions may be taking place it is not at all uncommon for women to travel to India for the procedure.
What we may have here, then, is a numerically small problem that is centred on a small sub-group of women who may be vulnerable to social and cultural pressures within their own community – although some may buy willingly into that culture themselves rather than being pressurised by their husband and/or other family members – which is unlikely to be affected in the slightest by the ineffectual posturing of Health Ministers and diktats issued to doctors from Whitehall. If these women cannot obtain an abortion in the UK, many will simply go overseas to obtain the procedure, and if that isn’t an option for financial reasons then some may resort to much the same methods of procuring an illegal abortion that were relatively commonplace in the UK prior to 1967.
Issuing new guidelines to doctors on the back of a failed sting operation conducted, incompetently, by a newspaper which takes its lead on abortion from The Vatican is not going to make the slightest bit of difference. What is needed to tackle this issue, is investment in support services operating on the ground in the communities where this practice may be taking place and that includes not only domestic violence services – because let’s not beat the bush here, if some women are being pressured and coerced in having abortions against their wishes than that is domestic violence – and in education, which is by far the best and and most successful way to improve the lot of women in any culture or society.
There aren’t many exceptions to H L Mencken’s ‘rule’ that “there is always a well-known solution to every human problem — neat, plausible, and wrong” but educating and empowering women to enable them to control their own lives and their own bodies is one of them.