Heidi Crowter and Maire-Lea Wilson walk out from the Royal Courts of Justice, defeated but with their heads held high. After months of campaigning, September has brought a closed on the second act of their battle to reshape abortion law.
The two women are part of a network that champions the rights of people with disabilities called “Don’t Screen Us Out”. They initiated a case against the Government over current abortion law, which allows women to terminate their pregnancy up to the point of birth for Down’s syndrome cases. The High Court has ruled against them.
In the UK, the limit time for abortion is 24 weeks into pregnancy. But under the Abortion Act 1967, where there are “fetal anomalies” such as Down’s syndrome, that time frame is extended. For Heidi and Maire, this is discrimination towards people with disabilities and poses an existential threat to their very existence.
“This judgment effectively condones discrimination and communicates very strongly that my two children are not of equal value. And they should be,” says Maire. Maire, 33, has two boys, a five and a two years old. The youngest, Aidan, has Down’s syndrome.
According to the High Court, there were 275 abortions carried out after the 24 week mark in 2019. Of those, 19 abortions involved cases of Down’s syndrome. Six mentioned other medical conditions.
Lord Justice Rabinder Singh and Mrs Justice Nathalie Lieven were unequivocal about the threat to women’s access to abortion. “It is important to bear in mind that Parliament gives a choice to women; it does not impose its will upon them,” they said in their judgment. They were cautious to note that under existing abortion laws, there are some families who want to have a child “even knowing that it will be born with severe disabilities”. Some families, however, do not have the ability to give the care a disabled child needs, they said.
For most of those gathered outside the court on Thursday, this case is deeply personal. Cristina travelled all the way down from Cumbria with her son Max. She said doctors pressured her to terminate her pregnancy when she discovered Max’s diagnosis.
“It’s not right that people can turn around to me and say ‘I would have had an abortion’. It’s not right that people can walk to me in the playground and say ‘Did you know?’. What does that imply?”.
The case has been met with backlash from feminist groups, who see the case as an attempt to threaten women’s abortion rights in the UK. Anti-abortion charities, such as Right to Life have jumped on the case as a means to achieve their own ends. They launched a personal attack on Justice Lieven for representing abortion providers in the past and questioned her position to preside over the case.
Maire is adamant it’s not the aim to threaten abortion access in the UK. But it could be collateral damage, say abortion providers.
What Maire and Heidi wanted was for the court to protect the “human rights” of the foetus. But to concede that point, in law, would be to give into an argument feminists have long fought: prioritising unborn babies over the rights of women. And with horrifying infringements onto a woman’s right to choose unleashed in Texas and Poland earlier this year, many are understandably unwilling to give ground on something so fundamental.
The British pregnancy advisory services is among the groups relieved at the High court’s rule. “If successful, this case could have had far-reaching implications. The claimants argued in Court that foetuses should have human rights – this has never been decided in law and would go against many years of legal precedent in the UK”, says BPAS Chief Executive Clare Murphy. Indeed the legal challenge didn’t aim to revoke access to abortion care solely in cases of a diagnosis of Down’s syndrome, but broadly in cases of all “non-fatal” fetal anomalies, a BPAS spokesperson says. The problem is that “the distinction between a “non-fatal” fetal anomaly and a fatal one is not a clear white line”. It is very hard to screen whether an anomaly could be mortal in the first phases of pregnancy.
A key tool to identify these anomalies is non-invasive prenatal testing (NIPT). Once again, however, the debate is rife with disagreement. “Don’t Screen Us Out” campaigners believe it will dramatically reduce the number of births of babies with Down’s syndrome. Already in the UK, 90 percent of pregnancies in which it is known that the baby will have Down syndrome are terminated. But this test is proven to be much more accurate than previous ones, and could inform women’s decisions with extra precision.
Heidi and Maire have not given up on their challenge and will turn to the Court of Appeal next. Their case drudges up an old tension between the disability and reproductive rights movement, this is not the final act.