UK Appeals Court Supports Ableism
Ms. Heidi Crowter has Down Syndrome. So does her son Aiden. She thinks that her and her son’s lives are are worth living. She thinks that the current British law governing abortion devalues her life in a way that causes her harm. She sued the government, asking the court to declare a portion of that law to be in violation of the European Convention on Human Rights.
They focused on Section 1 (1) (d) of the Abortion Act of 1967. The law permits abortion only up to the 24th week of gestation unless “there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.” It was amended in 1991 but the special exception for fetuses with conditions thought likely to result in “serious handicaps” in life remained.
Mrs. Crowter testified, “I find (the law) very offensive and hurtful. It says that people like me are not wanted and are not valued as much as normal people. I am sure people would be very upset if girls could be aborted up to birth but not boys. It’s the same for Downs Syndrome. Why should we be treated differently?”
Her lawyers argued that “negative stereotyping of those with Down’s syndrome or other serious disabilities will interfere with their private lives if and to the extent that it impacts on their feelings of self-worth and self-confidence.”
The exemption for handicapped babies was controversial (https://www.judiciary.uk/wp-content/uploads/2022/11/Crowter-v-SSHSC-judgment.pdf) even when the law was passed.
Supporters of the exemption emphasized the burdens of caring for a severely disabled child. They denied that their position involved undervaluing the lives of those born with serious disabilities. They maintained that there was a fundamental distinction between the fetus and child once born.
Opponents emphasized the discrimination inherent in permitting abortion on ground of serious handicap at any stage during pregnancy whereas termination on any other ground was not permitted after 24 weeks. It was arbitrary and inhuman, they claimed, to draw a distinction between the life of a viable fetus and that of a child at the moment of birth. One member of the House of Lords, Lord Shinkwin, who had serious disabilities himself, spoke passionately against the law. “For me, as a severely disabled person,” he argued, “ (This law) drives a coach and horses through everything Parliament professes to believe in concerning disability equality. Its continued application and indeed active promotion stigmatize disabled human beings before we are even born because its specific purpose is precisely to prevent us from being born…We are life unworthy of life.”
Jackie O’Sullivan, Executive Director of Communication, Advocacy and Activism for the Royal Mencap Society, an advocacy organization for people with disabilities called the law “an offensive anachronistic anomaly” that “conveys the powerful message that a life with a disability is a lesser life, even a life not worth living.” The law, she said, “should have no place in a modern inclusive society that values all people.”
Although the case focused on Down Syndrome, the logic of the law and the arguments against it would apply to many other congenital conditions that can be diagnosed prenatally. The law seems especially pertinent as our ability to diagnose not just chromosomal conditions but genetic ones, including traits, continues to grow. Are there any limits to parental discretion in deciding what constitutes a serious handicap?
The 37-page decision upholding the law and rejecting Ms. Crowter’s arguments is a compendium of obfuscation. Lord Justice Underhill wrote, “I have no difficulty accepting the evidence that they find the law offensive and hurtful.” In a concurring opinion, Lady Justice Thrilwill agreed, noting, “I accept without hesitation that some people living with Down’s Syndrome or other serious disabilities and their families find the provisions of (the law) offensive and upsetting.” Then, in a shockingly callous argument, Underhill went on, the law didn’t cause the prejudices. Instead, it merely incorporated them. “Prejudices against disabled people have sadly been prevalent throughout history and it seems rather unreal to attribute a significant effect to a recent legislative provision. Section 1 (1)(D) reflects long-established prejudices but that is a very different matter from it causing or substantially contributing to them.” In other words, he is saying, we have such prejudices, they aren’t going to go away, so a law that reinforces and amplifies them is ok.
This sort of world-weary cynicism makes me rethink my thoroughly pro-choice views.