Lost and Won: A Challenge of the UK Law Allowing Selective Termination

Chris Kaposy discusses the significance of a recent challenge of the United Kingdom’s Abortion Act by a group that included Heidi Crowter, a woman who has Down syndrome.


In late September,, the High Court of Justice in the United Kingdom (UK) decided not to strike down a section of the UK’s Abortion Act (1967) that allows abortion after 24 weeks of gestation in cases where there is a “substantial risk” that the child will be “seriously handicapped”. (I am following the terminology of the Act). Among the claimants in this case was Heidi Crowter, a 25 year-old woman with Down syndrome. Crowter and her co-claimants argued that the Abortion Act stigmatizes and discriminates against people with disabilities.

I sympathize with the argument that widespread selective termination of fetuses with conditions like Down syndrome stigmatizes these groups and indicates an underlying wellspring of biased attitudes. Nonetheless, from an ethical perspective, I think the High Court’s decision is correct. For one thing, a ruling in favour of the claimants would have restricted abortion access. For comparison, in Canada there are no legislative restrictions on abortion, even into the third trimester. Yet the number of late-term abortions is miniscule, and we should recognize that pregnant individuals themselves (with help from their health care providers) are the best judges of whether they ought to take the difficult step of terminating a pregnancy late in gestation. Furthermore, the argument made by Crowter and her co-claimants would prevent abortion access in any situation after 24 weeks in which the fetus is deemed to have a risk of any disability, not just Down syndrome. Surely there are some conditions that would justify late-term abortion.

Photo Credit: Don’t Screen Us Out/flickr. Image Description: Heidi Crowter speaking outside the courthouse in London.

Nonetheless, categorizing Down syndrome as a “serious handicap” is a mischaracterization. Amongst people who have Down syndrome, there are wide differences in abilities for learning, activities of daily living, and requirements for additional support. Most people with Down syndrome have a mild to moderate disability. When it comes to degree of disability, a lot depends on external factors. Those of us without disabilities can make people with intellectual disabilities more or less disabled. People can experience improvements in function as a result of good quality education, health care, access to social networks, access to jobs, and the availability of appropriate housing. This is why combating stigma and discrimination is important. The social measures that enhance peoples’ abilities may not be enacted when others are biased against them.

Though I am not a citizen of the UK, it would be better if there were no Abortion Act at all. Part of the discriminatory effect of the Act is its official declaration that disability is an approved grounds for abortion. Rather than classifying it as a private decision, the government approves of actions that prevent the existence of people with Down syndrome. No wonder they feel targeted by discrimination.

Though Heidi Crowter and her co-claimants lost the case, in a larger sense they have advanced their cause significantly. On the day of the ruling by the High Court, the Guardian published a story on its website about the ruling, with a picture of Crowter speaking on the steps of the Royal Courts of Justice in London, with her supporters behind her. Crowter’s husband James Carter, who also has Down syndrome stands helpfully beside her, holding the microphone. I have returned many times to this powerful, stirring image of Heidi Crowter holding forth on the courthouse steps. One way to challenge discrimination is to try to change laws like the Abortion Act. Another way is to change minds and expectations about people with Down syndrome, and other disabilities. The law may be one setting for discrimination, but the opinions and beliefs of the public can be another source of discrimination, as well as being the key to change if these opinions and beliefs can be changed. Crowter’s picture in the Guardian says so much. It says that this is a person who deserves respect and rights equal to those of everyone else. Though she lost the case, the points she made by simply bringing the case could not be more important.


Chris Kaposy is an Associate Professor at the Memorial University Centre for Bioethics, and an editor of the Impact Ethics blog. @ChrisKaposy

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