Comment: Abortion ruling shows women know what’s in their best interest

By Darinka Aleksic

The case of 'SB', heard by the court of protection last week, when a 37-year-old woman suffering from bipolar disorder was judged capable of choosing to terminate her pregnancy, is not, despite all appearances, about abortion. No medical or moral judgement was being made about the 'right to choose'.

When is a person so mentally incapacitated, either through illness or disability, that they are unable to make decisions about their health? This is the question the court was asked to consider, and in this instance it found that despite her 'severe mental disorder', and despite being detained in hospital under the Mental Health Act, the unnamed woman was in fact capable of knowing her own mind – a decision made against the wishes of her mother and estranged husband, and contrary the advice of her psychiatrist who was "100% certain" she was not able to decide for herself.

It makes for a less sensational story. But rather than focusing on abortion, we should think about this case alongside other issues of medical consent, such as a court's recent refusal to allow an anorexic patient to be force fed or religious objections to blood transfusion.

The fact that these cases are heard in court, and that they make national news, demonstrates how seriously we as a society take issues of personal autonomy when it comes to medical decisions. We accept that it is a grave infringement of human rights to either enforce treatment or mandate its withdrawal. Indeed the judge in this case described it as a “total affront to her autonomy” if he denied SB her right to a termination.

Another abortion case heard in the high court in January ruled that a pregnant woman with severe learning difficulties would not be forced to have a termination, because despite being in the 'bottom one per cent of the population' in terms of cognitive ability, she still had the mental capacity to decide if she wanted to continue the pregnancy, even though it might damage her health.

There is no legal line in the sand, on abortion or anything else, when it comes to capacity to consent, but what is clear is that the bar is set high – neither 'sectioning' nor mental disability automatically mean incapacity.

'Informed consent' is at the heart of clinical decision making. We rely on the patient's understanding of their condition in the most serious, life-threatening situations, when they are at their most vulnerable.

Yet in political and public debate about abortion, unlike less controversial but more medically complex issues, 'consent' is treated as a fragile, ephemeral concept, an ability that can be shattered simply by the shock of unplanned pregnancy or the very thought of abortion by an otherwise competent woman.

When plans to introduce new pre-abortion counselling requirements were debated by MPs in 2011 – plans which could have stripped abortion providers of their role in advising their patients, to be replaced by faith-based and explicitly anti-abortion groups – we heard time and again that women were routinely being rail-roaded into ending their pregnancies by profit-motivated abortion providers and that they did not, in fact, know their own minds at all.

We were told that without 'unbiased' intervention, women were in danger of making decisions that they would later bitterly regret – a view held by SB's mother in this case – and that what women really needed was to be told about guilt, bereavement and 'disposal of the corpse' (all recently heard at so-called Crisis Pregnancy Centres) rather than the straightforward, medically accurate consultation about abortion, its risks and its alternatives with a medical professional that they currently receive.

Beyond this, it was claimed that it was younger, less educated, less well-off women ('Asian girls' in particular) who were most in need of additional help with their decision, that they were more vulnerable to coercion and less able to understand what abortion 'really means'.

The notion that women don't know what is best for them, simply because they happen to be pregnant, also lies behind measures introduced across the United States, which require women seeking an abortion to view ultrasound images of the foetus (in some cases obtained by vaginal probe) while hearing a detailed description of its development, accompanied in some instances by a legal requirement to hear totally inaccurate information about the procedure – its non-existent links to breast cancer for example, or risk of suicide. Without a visual aid and a lecture, women are unaware of the 'reality' of their pregnancy, it would seem.

When it comes to abortion, the guiding principle of informed consent is not only fragile, but easily dispensed with until the 'correct' decision is reached. Yet these measures – in the UK and US – are collectively known as 'Right to Know' laws.

Behind them all is the enduring idea that the condition of pregnancy, unlike say a diagnosis of cancer or the need for heart surgery, renders a woman inherently vulnerable, reducing her capacity to that of a child, leaving her mentally incompetent, even 'insane'. It is a medieval belief that women's supposed emotional instability and propensity for 'hysteria' are ultimately womb-related.

There is simply no better way to know what a woman wants than to ask her, and when she tell us, to believe her. Illness, poverty, frailty, ethnicity or some arbitrary assessment of her vulnerability are not enough, either to require or forbid abortion. To remove the right to decide what to do with one's own body must always be the very last resort.

Darinka Aleksic is campaign coordinator at Abortion Rights, the national pro-choice campaign. Follow Abortion Rights on Twitter: @Abortion_Rights.

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