Colette Lloyd argues that a recent challenge to United Kingdom’s Abortion Act is about discrimination, not abortion.

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Chris Kaposy recently published a commentary on the Crowter V. SSHSC case. This case isn’t primarily about abortion, as Kaposy framed it in his commentary, rather it’s about discrimination. It sought to abolish discrimination found in the UK Abortion Act (1967).

The Abortion Act allows for the termination of a pregnancy up to 24 weeks of gestation, but allows for an exception after 24 weeks of gestation if the fetus has a disability.

The claimant, Heidi Crowter, brought the case forward. She wants babies who, like her husband James, have Down syndrome, to be equally valued. The co-claimant Maire Brady whose son Aidan who has Down syndrome, cannot understand why there is a law that treats her two sons differently, just because one has an extra chromosome.

Photo Credit: Don’t Screen Us Out/flickr. Image Description: Heidi Crowter and James Carter standing outside the courthouse in London on 6 July 2021.

Crowter v. SSHSC is not about regulating abortion and there appears to be little appetite for deregulation. A parliamentary amendment to consider the deregulation of abortion was brought forward last year, but it was not taken to vote. The Crowter v. SSHSC case is about eliminating discrimination, which wouldn’t be permitted in any other law.

The UN Special Rapporteur on the Rights of Persons with Disabilities, said “Disability cannot be a justification for termination of life”.

Yet, at the beginning of the COVID-19 pandemic, there was uproar when Do Not Resuscitate orders were placed on the medical records of people with disabilities, without their consent, simply because they had a disability.

The UN Committee on the Rights of Persons with Disabilities, recognised the discrimination inherent in the UK law. It said:

12. The Committee is concerned about perceptions in society that stigmatize persons with disabilities as living a life of less value than that of others and about the termination of pregnancy at any stage on the basis of fetal impairment.

13. The Committee recommends that the State party amend its abortion law accordingly. Women’s rights to reproductive and sexual autonomy should be respected without legalizing selective abortion on the ground of fetal deficiency.

Katriona Scior, a witness for Crowter, has conducted research that shows that even having such a law perpetuates stigma about those with disabilities. A report by Positive About Down Syndrome that contains informally collected women’s experiences of diagnosis makes it clear discrimination abounds.

However, the judgement went against Crowter.

Kaposy argues that in the absence of deregulation, the court made the right decision because finding in favour of Crowter would restrict abortions (to the same limits as for any other fetus, it should be noted). His argument is based on an incomplete understanding of the case, and one interpretation of the UK law.

The argument, in the Crowter case, was, to remove the inclusion of non-fatal disabilities in the clause, not all disabilities.

Further, there is another clause in the Abortion Act that could be interpreted to allow a woman to have an abortion after 24 weeks

1.1. (b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman

A late term abortion due to the above clause, would be based on the woman’s own health, rather than on incorrect blanket presumptions about disability. Skotko’s research has shown that 99% of people with Down syndrome are happy with their lives, and only 4% of parents who have children with Down syndrome regret it, whilst 79% feel their outlook on life is more positive because of their child who has Down syndrome. These outcomes were not contingent on the person’s level of impairment.

Further, if one of the few parents who only found out about the disability after 24 weeks didn’t want their child and couldn’t prove that having them would cause grave injury to their mental health, there remains the option of adoption. Although Marcia Van Riper’s research suggests that this option is unlikely to be chosen. At the point of diagnosis of Down syndrome 34% of parents from the UK thought that it was a tragedy or the worst thing that could happen. However, once they had had time to get to know their child, all parents thought their child was a blessing in disguise, a challenge to overcome or accept.

Kaposy suggests that there are ways to combat stigma and discrimination other than changing the Abortion Act. The difficulty can be though, that these other ways often rely on ableism, rather than valuing disabled people for who they are. Non-disabled people don’t have to speak standing on the steps of the Royal Courts of Justice for their lives to be judged valuable. However, Heidi has, I would agree, changed many hearts and minds by bringing the case to the Court.

Finding in favour of Crowter would not end all disability discrimination. However, it would remove the discrimination from the Abortion Act, and send a strong signal about how the UK values disabled people.

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Colette Lloyd is a Speech and Language Therapist, and campaigner for equal rights for those who have Down syndrome. @ColetteLloyd