World Medical Association
Revision of WMA
Declaration of Oslo on Therapeutic
Abortion (2006)
Appendix "E"
Therapeutic and Elective Abortion
E1.1 Alone among the WMA members responding to the
Secretariat Revision, the Royal Dutch Medical Association clearly
distinguished between therapeutic abortion and elective abortion and
suggested that the distinction should be openly acknowledged.
The Royal
Dutch Medical Association agrees that physicians can't be forced to perform
an abortion. There are little situations in which abortion is therapeutic
and those situations are mostly not controversial. Therefore we suggest to
speak about elective abortion instead of therapeutic abortion. (Emphasis
added) (Appendix "B," B2.5.2)
E1.2 In other words, the Dutch believed that a policy
was needed on "elective" abortion because "elective" abortion is
controversial.
E1.3 The distinction was recognized by Norway, which
asserted that women have a right to elective abortion. (Appendix
"B", B2.4.1)
E1.4 The distinction was implicit in Denmark's recommendation that
"therapeutic abortion" should be defined (Appendix
"B", B1.1, Comment)
E1.5 France did not mention elective abortion. However,
its emphatic insistence that the policy should be understood to refer
exclusively to "Therapeutic Interruption of Pregnancy or Interruption of
Pregnancy on Medical Grounds" makes sense only if it is understood that
abortions can be provided for non-therapeutic or non-medical reasons. (Appendix
"B", B2.8.1)
E1.6 An unknown number of Associate Members believed
that to delete the word "therapeutic" from the policy would be a "major
change," and that there should be two documents: one for "therapeutic"
abortion and one on "legal" abortion, clearly implying that, in countries
where abortion is legal, it is not necessarily "therapeutic." (Appendix
"B", B2.3.1)
E2.1 The British response provided the clearest
indication of what is meant by "therapeutic" abortion: an abortion performed
"to save the life or prevent grave permanent injury to a pregnant woman." (Appendix
"B,"B2.7.4) This definition is consistent with the legal and medical
understanding of "therapeutic" abortion that prevailed at least in common
law countries following the decision of The King v. Bourne in 1938.73
The rule taken from Bourne informed the Code of Ethics of the
Canadian Medical Association until the Code was changed following abortion
law reform in Canada (Appendix "D",
D1.1). Abortion was held to be legally justified to preserve the life of
the mother, but the judge in Bourne instructed the jury that they should
take a "reasonable view" of this.
It is not contended that those words mean merely for
the purpose of saving the mother from instant death. . . [W]here the doctor
anticipates, basing his opinion upon the experience of the profession, that
the child cannot be delivered without the death of the mother, it is obvious
that the sooner the operation is performed the better. The law does not
require the doctor to wait until the unfortunate woman is in peril of
immediate death.74
He later added that an abortion could be justified if continuing the
pregnancy would probably "make the woman a physical or mental wreck."75
E2.2 That the British understood "therapeutic" abortion
to be a procedure connected with the preservation of the life of the mother
is also reflected in their recommendation (adopted verbatim in WGAP
Clause 9) that no woman should lose her life "because therapeutic
abortion services are unavailable." (Appendix
"B", B2.7.6)
E2.3 This understanding of "therapeutic" abortion
is consistent with French insistence that a "Therapeutic Interruption of
Pregnancy or Interruption of Pregnancy on Medical Grounds" must be preceded
by consultation with (and presumably the approval of) experts. It also
explains why the French considered it a "medical act" that precludes
conscientious objection, yet maintained the right of physicians to withdraw
based upon their "convictions." They could not imagine how a physician could
"conscientiously" refuse to intervene to prevent a woman from dying or
suffering "grave permanent injury," but could understand that a physician
might refuse to participate for reasons of professional judgement (i.e.,
clinical convictions).
E3.1 The Royal Dutch Medical Association provided a
satisfactory definition of "elective" abortion when it recommended that
reference to mother and unborn child be replaced with the statement, "A
pregnant woman may consider terminating her pregnancy for medical or
other reasons."(Appendix "B", B2.5)
E3.2 Notice that"other reasons" is unrestricted; it
includes any non-medical reason. It could include sex selection or a
decision to break a surrogacy contract, for example. On the other hand,
while this concedes that a woman may consider an abortion for any
non-medical reason, it does not concede that a physician is obliged to
provide an abortion for a non-medical reason. There is, in practice, a
difference between abortions women "may consider" and abortions physicians
are willing to provide. This appears to explain why the Dutch believed that
the WMA should have a policy on elective abortion.
E3.3 While abortions performed for
socio-economic or other non-medical reasons are clearly elective,
some abortions provided for ostensibly medical reasons can also be
classed as elective, including abortions used as a method of birth
control.
E4.1 The decision of the Working Group to replace the
term "therapeutic" with "medically indicated" does not resolve the issue
raised by the distinction between therapeutic and elective abortion, and its
added references to "evidence-based medicine" and "good clinical practice"
are not helpful. On the contrary: these revisions may confuse things
further.
E4.2 As the Royal Dutch Medical Association
observed, therapeutic abortions are very rare. However,
contraception is generally considered to be "medically indicated" according to
"evidence-based
medicine" and "good clinical practice" even if actually prescribed
solely for socio-economic reasons. Thus, if contraception fails,
elective abortions will probably be considered "medically indicated"
for the same reasons contraception was prescribed, whether or not
continuation of the pregnancy would actually endanger the woman's
life or health.
E4.3 As a result, it seems likely that, in
countries like Canada, the United States and the United Kingdom,
almost all abortions are elective birth control procedures performed
for socio-economic reasons. When this occurs, "medically indicated"
usually means nothing more than that the procedure is one that
requires technical competence normally possessed only by trained
physicians and healthcare workers.
E4.4 On the other hand, "medically indicated"
may have a medical (though non-therapeutic) meaning in some
situations, as when eugenic abortions are justified by reference to
desirable or undesirable characteristics of progeny, or when
sex-selective abortion are refused as "not medically
indicated." As the two examples illustrate, this application of the
term is not without controversy.
E4.5 In contrast, where therapeutic abortion is
the norm, "medically indicated" according to "evidence-based
medicine" and "good clinical practice" will be understood to refer
specifically to the need to preserve the life of a woman or (as the
British stated) to prevent grave and permanent injury to her.
E4.6 Thus, "therapeutic" and "medically
indicated" are not equivalent terms. "Medically indicated" can refer
to both therapeutic and elective abortions. The WGAP would, if
adopted, mean quite different things in different parts of the
world, especially since the wording of the critical section of the
document is ambiguous on this point.(Appendix
"C", C2.3.13).
E5.1 In developed countries like Canada, the United
States and the United Kingdom, where abortion is legal and widely available,
though abortion is not the primary method of birth control, the number of
elective abortions for birth control is overwhelmingly greater than the
number of therapeutic abortions.
E5.2 For example, during the eleven
years from 1956 to 1967, Canadian physicians performed 300 abortions to
preserve the life of the mother in accordance with the Bourne criteria,76
about 0.05% of all live births.77 This reflects the Royal Dutch Medical
Society (RDMS) comment about therapeutic abortions: "There are little [i.e.,
"few"] situations in which abortion is therapeutic and those situations are
mostly not controversial." (Appendix
"B," B2.5.2)
E5.3 As soon as the new Canadian abortion law went into
effect, the number of abortions increased exponentially, from under 300 in
eleven years to more than 11,000 in the first year.78 The Canadian Medical
Association approved abortion for "non-medical social grounds" in 1971,79 and
by 1974 it had become clear that most abortions were being performed for
"non-medical - social, psycho-social or socioeconomic - reasons."31 By 1976
the abortion rate was 14.9% of live births: almost 30 times higher than the
therapeutic abortion rate prior to the change in the law.80 Assuming the
therapeutic abortion rate remained at the pre-reform level, it appears that
99.95% of abortions in Canada in 1976 were elective procedures performed for
the purpose of birth control.
E5.5 However, recognition that abortion is
used primarily as a method of birth control has been obscured by the legal
framework established as part of abortion law reform. All abortions - including
the 99% that were elective - were officially deemed "therapeutic," because
Canadian criminal law ostensibly permitted abortion only to preserve the
"life or health" of the mother.81 The enormous increase in elective abortions
was made possible simply by adopting the World Health Organization
definition of health: "a state of complete mental, physical and social
well-being."82 A similarly broad definition is used by the World Medical
Association.83
E6.1 That abortion in North America and Britain
is primarily used for birth control has been corroborated by the British
Pregnancy Advisory Service,84,
85 and the U.S. Supreme Court.86
E6.2 It is also corroborated by the arguments of
prominent reproductive rights advocates. For example, Canadian law professor
Daphne Gilbert asserts that women have a right to "reproductive autonomy,"87
even a constitutional right to "reproductive autonomy,"88 which, in fact,
means a constitutional right to something that is manifestly impossible.
More reasonably, her concern is to ensure that women have "access to
reproductive services,"89 described variously as "reproductive health care,"90
"reproductive health services"91 and "reproductive care."92 Such services, she
argues, are essential for a woman's "reproductive health."93 Hence, women have
"reproductive rights,"94 which include a right to make "reproductive health
choices"95 that foster their "reproductive control."96
E6.3 Her frequent references to medical services,
care or treatment97 and concern expressed about refusal to offer or denial of
medical services98 all occur within this context. While generic reference to
"reproductive" rights or "reproductive" health care is broad enough to
include obstetrics, gynaecology, fertility treatments and assisted
reproductive technology, Gilbert is exclusively concerned with abortion and
contraception.99 Within the context of her paper, "reproductive services"
means abortion and contraception, without distinction.
E6.4 What she asserts is simply a freestanding
right to birth control (by any means) and a corresponding obligation on the
part of physicians to provide it. From her "reproductive rights"
perspective, there is no relevant moral or legal difference between abortion
and contraception, and it is immaterial whether birth control is achieved by
surgery (abortion or sterilization, though the latter is not mentioned), by
drugs (contraceptives or abortifacients) or by devices (diaphragms or IUDs).
E6.5 Of particular interest, though Gilbert
argues within the context of "reproductive health" (as she understands it),
her focus is on birth control for the purpose of safeguarding "earning
capacity," choice of "life options" and "life's course," participation in
"economic and social life," an ability to reach one's"full potential,"
aspiration to "equal citizenship stature," and "dignity and worth." Without
birth control, she argues, women may face "nine months of unwanted
pregnancy," "economic and social costs of child-bearing" and "the potential
imposition of a lifetime of child care obligations."100
E6.6 Granted the validity of these interests,
none of the reasons Gilbert offers to compel physicians to provide birth
control (by elective abortion or other means) reflect a therapeutic
paradigm. Indeed, in her sole reference to therapeutic abortion, she
concedes the point made by the Royal Dutch Medical Association: abortions
needed to save the life of a woman are rare, and conscientious objection
less likely in such circumstances.101
E7.1 The fact that only women have abortions is
sometimes raised to ground a claim for sex discrimination. It is easy to
leap to that conclusion as long as one does not advert to the specific
nature of the act to which terms like "reproductive service" and "abortion"
are applied.
E7.2 Elective abortion, as most commonly practised, is
the killing of a human embryo (after implantation) or unborn child/fetus for
the purpose of birth control, or, as Gilbert would have it, for the purpose
of ensuring the "reproductive control" of women. Where this is legal, one
human individual is permitted to deliberately and unilaterally direct the
killing of a different human individual without even the possibility of the
consent of the individual being killed. That is the fundamental structure of
the act. It is reasonable to incorporate this fact into one's moral
reasoning.
E7.3 That the embryo/fetus/unborn child killed by
abortion is a member of the human species is an objective and empirically
verifiable fact, even if the law denies the individual killed the status of
"human being" or "person" (understood legally as a "rights holder"). It is
also reasonable to incorporate this fact into one's moral reasoning.
E7.4 Medical and surgical abortion involve the killing
of an embryo/fetus/unborn child, and this clearly distinguishes elective
abortion from other forms of birth control. For this reason, many physicians
may be willing to provide or refer for all forms of birth control except
abortifacients and abortions. Even then, they may be willing to provide or
refer for therapeutic abortions.102 This clearly demonstrates that they are
motivated by ethical concern about the procedure rather than making
distinctions based on prohibited grounds of discrimination.
E7.5 In the Project's experience, physicians who, for
reasons of conscience, refuse to kill a human individual by abortion do not
refuse because a woman makes the request or gives the order. They would also
refuse to kill a human individual if asked or ordered to do so by a man. The
sex or status of the person who gives the order to kill is not relevant to
their moral or ethical decision-making. It is influenced, instead, by
consideration of their moral obligations to the individual whom they are
directed to kill.
E7.6 The killing of her embryo/fetus/unborn child may
be particularly important or advantageous for the woman making the request,
and the law may not permit an inquiry into her reasons. The law may simply
assume that they are sufficient to justify her decision to ask or direct
someone to do the killing, or to provide the means for her to do the killing
herself. It does not follow, however, that reasons a woman finds sufficient
to justify her own acts are sufficient to justify the acts of others, let
alone to compel others who think differently to kill another human
individual, or to punish them if they refuse.
E8.1 Those who would suppress physician freedom of
conscience with respect to abortion frequently assert that physicians must
act according to the interests of a woman as she understands them because
pregnancy and childbirth have a profound impact on her, but physcians are
unaffected by it.
E8.2 Pregnancy, abortion and childbirth all
profoundly engage a woman's bodily integrity, her right to control
her own body, and security of the person. Pregnancy may be
accompanied by bouts of nausea and other medical issues, including
risks of various kinds. Nine months gestation includes nine months
of gradually increasing discomfort for the mother. Labour is usually
painful. There is no doubt that a woman's bodily and personal
integrity and security are inseparably
involved with the conception, gestation and birth of a child.
E8.3 However, it is a mistake to assert that
only the bodily integrity of the woman need be considered, that only
her security of the person is relevant, or that only her right to
control her own body is at stake. The bodily integrity of an
objecting physician is equally at stake. Just as a mother's womb is
essential for the life of a fetus, so a physician's hands and skills
are essential for killing the fetus.
E8.4 If one agrees that a woman must not be
compelled to use her womb to sustain the life of a fetus because she
has the right to control her own body, it would seem to follow that
objecting physicians must not be compelled to use their hands to
kill a fetus, since they also have the right to control their own
bodies. The argument applies equally to every other act that
requires the use of a physician's body, such as writing a
prescription or arranging an effective referral.
E8.5 Granted a woman's personal integrity is
inseparable from her bodily integrity and moral agency, so, too, is
a physician's personal integrity inseparable from his bodily
integrity and moral agency.
E9.1 Attempts to suppress physician freedom of
conscience with respect to abortion frequently assume the paradigm
of "therapeutic" abortion. That is: it is said that physicians must
be compelled to provide or refer for abortions in order to save
women's lives or to prevent serious, permanent injury to them. This
is the premise underlining the WGAP demand for referral.
E9.2 However, the premise is demonstrably false
in the vast majority of cases. As the Royal Dutch Medical
Association observed, such situations are extremely rare and
generally uncontroversial (E1.1). This is not
surprising, since, in such cases, physicians who generally object to
abortion may well be willing to refer for the procedure.
E9.3 Comments on this point from the
Netherlands, Norway, Denmark and France should have alerted the
Working Group to the need to distinguish between elective and
therapeutic abortion before attempting to address the issue of
physician freedom of conscience. The distinction is critical because
a physician's ethical and professional obligations to provide
elective procedures cannot be reasonably construed as being
identical to their obligations to provide emergency medical
treatment. It is disingenuous to purport to "balance" physician
freedom of conscience with patient access to abortion without taking
this into account.
E9.4 Unfortunately, the Working Group not only
ignored or failed to note this distinction, but replaced the
existing protection of conscience provision with a passage that is
ambiguous on this very point (C2.3.13).
This is likely to cause more confusion and controversy.