Chapter 5 suggested that the discretion which the Abortion Act 1967 afforded to medical practitioners has been exercised in an extensive way to such a degree that, in medical practice if not in legal theory, abortion has been available ‘on request’ and for social reasons both in the private sector and, to a somewhat lesser degree, in the National Health Service (N.H.S.), and that the safeguards which were incorporated into the Act ostensibly to curb such practices have proved largely ineffective. Further evidence to support these suggestions will be provided in this chapter, which outlines the major legislative attempts made between 1969 and 1979 to curb perceived abuses of the law by amending the Act restrictively, and which focusses on the profession's reaction to such proposals.

The Stjohn–Stevas Bill (1969)

After the Act had been in operation for only fifteen months, Mr St John–Stevas introduced a ‘ten minute rule’ Bill entitled, ‘A Bill to improve the law governing abortion and the status and rights of the medical profession in relation thereto’. Clause 1 of the Bill sought to provide that one of the two opinions required by the Act was given by a consultant gynecologist holding office under the N.H. S. (or a doctor of equivalent status approved by the Minister of Health) and that the operation was performed by him or under his supervision. The declared aims of the Bill were to check racketeering, which the Act's safeguards had been unable to prevent, and to ensure that the operation was performed under the best possible conditions.

In Chapters 1 and 2 it was suggested that the passage and shape of the anti-abortion enactments from 1803 to 1861 were influenced by regular medical practitioners who relentlessly urged the need for suppression by the law of a practice which threatened not only fetal and maternal welfare but also the interests of their profession.

However, there is reason to approach the regulars' expressions of concern for fetal life with caution. Just as it would be simplistic to assume that their condemnation of abortion was purely altruistic, so too would it be superficial to conclude that they regarded fetal life as inviolable.

Medical abortion and the law 1803–1938

On 27 April 1938 a girl of fourteen was raped. She was taken to see Dr Joan Malleson, a member of the medico-legal council of the Abortion Law Reform Association, who contacted a fellow council member, Dr Aleck Bourne, obstetric surgeon to St Mary's Hospital. He replied:

On 31 May, the girl was taken to see Dr Bourne by her mother. A letter of consent to the proposed operation was then obtained from her father. Bourne then saw Dr Wingate, a resident obstetric officer at St Mary's and informed him of his reasons for operating, namely that the girl was under the age of consent and had been raped. On 6 June she was admitted to the hospital. A pregnancy test proved positive.

The last chapter dealt with the influence of the medical profession on the enactment of the Abortion Act 1967. This chapter considers how extensively the Act has been interpreted by some practitioners and the effectiveness of some of the checks on the exercise of medical discretion in relation to abortion.

Medical abortion: 1968–1982

According to Sir Roger Ormrod, although the Abortion Act 1967 seems a modest extension of the law, in practice the result has been very different:

Is there any evidence to support this assertion? Some evidence which does provide some support takes the form of contributions on abortion to the medical press from 1967 to 1982, to which reference will be made in this section. This evidence, together with that from other sources, such as abortion statistics, suggests that, since the enactment of the legislation, the number of medical abortions has increased and that a significant number have been performed at the request of the woman and for social reasons.

The exercise of medical discretion

Numerically, abortions notified to the Chief Medical Officer (C.M.O.) in accordance with the Act rose steadily from 22256 in the first eight months of the Act's operation to a peak of 169362 in 1973. They dipped to 129673 in 1976 but have gradually increased since then, totalling 163045 in 1982. The abortion rate per 1000 residents aged fifteen to forty-four rose from 3.46 in the first eight months to 11.39 in 1973, dipped to 10.46 in 1976 but rose again to 12.32 in 1982.

Much has been written, particularly over the last twenty years, on the subject of the law of abortion. The bulk of the literature, however, has been concerned with the desirability or otherwise of legal reform, has addressed the subject in the broad context of moral, philosophical, political and sociological considerations, and has related largely to the law in the United States. Remarkably little academic attention has been given to the development and scope of the law in England, and research that has considered English law has tended to concentrate on the political dimensions of the relaxation of the law by the Abortion Act 1967 (see Appendices, p. 168), and in particular the role played in that relaxation by the Abortion Law Reform Association. Not only is research into the development of the law sparse but also the question of the influence both of the medical profession on its development and of the law on the practice of abortion by the profession has been largely ignored. This text seeks to make a contribution to the remedying of these deficiencies.

The book spans the period 1803 to 1982 and considers certain aspects of the development of the law, with particular reference to the influence of the medical profession (that is, registered medical practitioners and their predecessors, the ‘regular’ as opposed to uneducated practitioners) on its enactment and the degree to which the law has influenced the practice of abortion by the profession. It does not, therefore, present either a comprehensive history of the law itself or a socio-political history of its development.

This chapter considers the scope of Lord Ellenborough's Act and its successors, which were enacted in 1828, 1837 and 1861, and examines their prohibition of abortion in the light of contemporary medical opinion.

Anti-abortion legislation 1803–1861

Lord Ellenborough's Act was, it will be recalled, severe. Section 1 punished with death ‘any person or persons’ who administered ‘any deadly poison, or other noxious and destructive substance or thing’ with intent to procure the miscarriage of ‘any woman, then being quick with child’. Section 2 went further and punished, with a variety of non-capital penalties, ‘any person or persons’ who administered ‘any medicines, drug, or other substance or thing whatsoever’ or who used ‘any instrument or other means whatsoever, with intent thereby to cause or procure the miscarriage of any woman not being, or not being proved to be, quick with child at the time of administering such things or using such means …’. Only s. 2, therefore, punished instrumental attempts. This anomaly was removed by the next statute to deal with abortion, Lord Lansdowne's Act 1828. Section 13 of the Act, which replaced ss. 1 and 2 of Ellenborough's Act, extended the prohibition on postquickening abortion to include attempts involving ‘any instrument or other means whatsoever’. Moreover, the strict penalties for abortion, whether before or after quickening, remained substantially unchanged, although in the case of the latter the accused was no longer deprived of benefit of clergy and, on conviction for the former, the court could no longer fine or condemn to the pillory.

This final chapter outlines some of the general conclusions of the book and suggests a possible perspective from which to view the aspects of the development and operation of the law relating to abortion which it has considered.

Chapters 1 and 2 suggested that the emerging medical profession exerted an influence upon the gradual statutory restriction of the law against abortion between 1803 and 1861. Chapter 4 traced its support for, and shaping of, the Abortion Act 1967, and Chapter 6 its persistent defence from subsequent legislative restriction of the broad medical discretion afforded by the Act to doctors.

It appears that a central (though not exclusive) concern of the profession in both the restriction of the law in the nineteenth century and its relaxation in 1967 has been self-interest. As the British Medical Journal has noted, two central concerns of the profession are freedom from control and the prevention of encroachment upon its sphere of influence by the medically unqualified. This book provides some evidence that both of these concerns have been prominent in the development and operation of the laws relating to abortion from 1803 to 1982. In 1967, the profession supported the passage of an Act whose central declared aim was the abolition of ‘back-street’ abortion – an aim which was to be achieved by granting registered medical practitioners a legal monopoly on the induction of abortion. It also supported the restriction of the abortion law in the nineteenth century – a reform which may also have served the interests of the profession by penalising the performance of abortion by irregular practitioners.

Radiation Pressure.

21. Radiant energy or radiation consists of electromagnetic waves in the aether. Maxwell's electromagnetic theory showed that these waves possess momentum. If E is the energy of the waves, c the velocity of light, the momentum is E/c in the direction in which the waves are travelling.

According to the modern view energy and mass are inseparable, c2 ergs corresponding to 1 gm. This leads immediately to the same result. For the energy E ergs indicates a mass E/c2 gm., and since the velocity is c the momentum is (E/c2) × c = E/c.

A material screen which absorbs the waves absorbs also their momentum. Thus the momentum of the screen changes, which is another way of saying that it is acted on by a force. Suppose that waves containing E ergs per cu. cm. impinge normally on a perfectly absorbing surface. A column of radiation of height c passes into and is absorbed by each sq. cm. of the surface per sec.; this column contains Ec ergs and the momentum is thus Ec/c or E units. The force on the screen is thus E dynes per sq. cm.

For imperfect absorbers we must deduct the proportion of the momentum which is not passed on to the material screen, viz. that of the transmitted, scattered or reflected waves. For example, a perfect reflector would experience a pressure 2E; half of this is due to its stoppage of the incident waves and half is the recoil due to the projection of the train of reflected waves.

Interaction of Radiation and Matter.

34. The theory of the equilibrium of matter and radiation at constant temperature depends on a principle which is a generalisation of the theory of exchanges (§ 29). After equilibrium is reached no visible change occurs; the density and constitution of the radiation, the proportion of atoms in various states of combination and ionisation, the number of free electrons, the proportion of molecular velocities between given limits, all remain steady; but beneath this statistical changelessness there is continual change happening to the individual atoms, electrons, and elements of radiation.

Consider the atoms of a particular element which are uncombined and in their normal neutral state. The number n of these atoms in the system will remain constant (apart from chance fluctuations) when equilibrium is reached. But the individuals composing this number continually change. New atoms appear in this state owing to the dissolution of chemical molecules containing them, neutralisation of ionised atoms by the capture of free electrons, relapse of excited atoms to the normal state. Atoms in the given state disappear owing to the converse processes—combination to form chemical molecules, ionisation by the expulsion of an electron, excitation by absorption of radiation or collision with electrons or atoms. The steadiness of n is due to an average balancing of gains and losses.

But the principle above mentioned is not content with formulating this general balance of gain and loss—a mere translation of the word “equilibrium.”

Ionisation.

173. The determination of the degree of ionisation of the atoms under the conditions of temperature and density found in the stars is important in connection with the following applications—

(a) We derive from it the molecular weight μ which is required for nearly all numerical calculations. Accuracy is important since μ is often raised to a rather high power in the formulae. We have to find—

(1) What is the most probable value of μ for the stars in general? (The standard value adopted by us is 2·1.)

(2) What is the magnitude of the differential effects (more particularly as affecting the mass-luminosity relation) caused by differences of μ between different stars?

(3) What is the change of μ between the centre and the outer parts of a star?

(b) A knowledge of the ionisation is required in connection with theories of absorption, since each ionisation destroys an absorbing mechanism; in particular, it determines the “guillotine” correction to the opacity on Kramers' theory.

(c) It determines the energy of ionisation of a star and hence the ratio of specific heats γ, which is important in the study of the pulsations of Cepheids.

Another subject appropriately treated in connection with ionisation is the determination of the deviation of stellar material from the laws of a perfect gas.

The results generally depend appreciably on the chemical constitution of a star.

68. Energy in the form of radiant heat and light is continually flowing from the surface of a star into space. The surface layers of material cannot continue to provide this energy for long unless their heat is replenished from below. We are thus led to consider the process of transfer of energy from the interior to the surface.

There are two modes of transfer of heat in material in static equilibrium, viz. conduction and radiation. In both the net flow is in the direction of the temperature gradient from high to low temperature. In both this flow is the resultant of streams of energy in both directions; the stream from the high-temperature region is rather more intense than the stream from the low-temperature region, and the difference constitutes the net flow. In conduction molecules of the hotter region transmit their energy by diffusion and collision to surrounding regions; in radiation the hot material emits aether waves which are absorbed in the surrounding regions. In both cases this transmission is largely neutralised by a similar transmission from the surrounding regions, and the resultant transfer depends on the slight preponderance of the flow from the hotter region.

A third mode of transfer is possible if the limitation to static equilibrium is abandoned. There may be a system of ascending and descending currents in the star by which the material is kept stirred. Heat-energy is then carried from one region to another by actual movement of the matter carrying it—as in the lower part of our own atmosphere.