17 Sep, 12 | by Iain Brassington
Earlier today, Sarah Catt was jailed for 8 years for inducing the termination of her own pregnancy at 39 weeks’ gestation. The transcript of the comments of Mr Justice Cooke, sentencing, is available here.
I don’t want for this to get bogged down in questions of the moral rights and wrongs of abortion, at whatever stage during the pregnancy it takes place, or with what the law should permit. Rather, I just thought that I’d highlight a couple of aspects of Cooke’s comments.
12. You could well have been charged under Section 1 of the Infant Life (Preservation) Act 1929 for destruction of a child capable of being born alive. Section 1(2) of that Act provides a presumption in law that if a woman is pregnant for 28 weeks, the child en ventre sa mere is capable of being born alive.
16. There is no mitigation available by reference to the Abortion Act, whatever view one takes of its provisions which are, wrongly, liberally construed in practice so as to make abortion available essentially on demand prior to 24 weeks with the approval of registered medical practitioners.
The idea that the Abortion Act has been systematically misapplied is not a new one – it’s a fairly standard line from people like Peter Saunders. And, conversely, I know from conversations with them that there’s no shortage of medical lawyers who deny that there has been any such misapplication – I won’t name them here because the ones I have in mind don’t (as far as I know) have blogs; but if they want to identify themselves in the comments, that’d be great. Still, I’m curious about two things here. The first is that it seems odd for Cooke to have mentioned the Abortion Act at all, except as a way to crowbar in his point about how it’s being applied.
The second relates to the standard by which the epithet “wrongly” is to be measured: what is it? Inasmuch as that English law has a big role for precedents, doesn’t that suggest that, in at least some sense, the law is as the law does? That’s compatible with saying that the law is as the law does not, of course – which is why laws can remain valid despite it being decades since the last prosecution. But given the number of terminations, and the fact that the law is remarkably disinclined to prosecute, there seems to me to be a plausible argument that it’d be unjust to start prosecuting cases now – and that, de facto if not de iure, it’s therefore hard to make the claims about misapplication stick.
Still: not being a lawyer, I wouldn’t want to bet my life on that. Comments would be welcome.
Para 16 continues:
What you have done is to rob an apparently healthy child en ventre sa mere, vulnerable and defenceless, of the life which he was about to commence. You are not charged with murder and I would be wrong to treat it as such as matter of law. Equally this is not manslaughter nor akin to it where the intention is not to cause death. Nor is it on a par with causing death by dangerous driving either, with its maximum sentence of 14 years, bearing in mind the calculated intentionality here.
17. In English Law, none of those offences could be committed in respect of an unborn child, but the gravamen of this offence is that, at whatever stage life can be said to begin, the child in the womb here was so near to birth that in my judgement all right thinking people would consider this offence more serious than manslaughter or any offence on the calendar other than murder.
I don’t know whether I’d be able to articulate it particularly well, but there’s something just a bit weird about that, especially when read alongside the first bit of para 16 above. First, he introduces the canard about the point at which life begins. This is not important. Even in respect of a termination at, say, 10 weeks, there is no question but that the foetus is alive, that it has been alive since the moment of fusion, and that the gametes that fused were alive even before then. What matters is, if you’re an ethicist, the point at which that life becomes morally weighty (and weighty in comparison to the rights and preferences of the woman gestating it), and, if you’re a lawyer, the point at which that life demands the protection of the law. In respect of the legal question, the answer - which is, after all, what the judge is paid to apply – is birth.
More importantly, though – and this is the really weird bit – is the statement about how right-thinking people would regard the offence being tried as more serious than manslaughter. Maybe they would (although he does not cite any evidence for this, which opens the door to a claim that he’s commiting the no-true-scotsman fallacy); but since the law does not think this way, that could well be irrelevant. The most likely way that it would not be irrelevant would be to say that the letter of the law can, is, and should be modified by extra-legal considerations such as the social context in which it is to be applied. But… but then you have to let go of the idea that the Abortion Act is wrongly applied, because even if we agree (arguendo) that practice diverts from the letter of that law, it’d turn out that the letter of the law isn’t sacred.
And – to go back to the point about when the law starts to care about children – why make such play of laws that wouldn’t apply anyway?
Oh – one other thing. It may or may not be of note that Cooke became vice-president of the Lawyers’ Christian Fellowship in 2003. In its own words, the LCF seeks “to impact both individual lives and the wider legal landscape through an uncompromising commitment to the Bible‘s teaching”, and says that part of its vision involves “applying God’s justice on the ground”.