Abortion law stereotypes, demeans and discriminates against disabled people, court hears

A disabled campaigner was in the high court this week to hear her legal team argue that it was “morally and ethically wrong”, and discriminatory, to allow disabled fetuses to be aborted up until the moment of birth.

Heidi Crowter, from Coventry, is one of three claimants asking the high court to rule that a key section of the 1967 Abortion Act is incompatible with the European Convention on Human Rights (ECHR).

Crowter (pictured), who has Down’s syndrome, and whose team has so far crowd-funded more than £100,000 for the legal case, is joined in the action by two-year-old Aidan Lea-Wilson, who also has Down’s syndrome, and his mother Máire, from Brentford.

The court heard how Lea-Wilson was pressured to have an abortion – and felt criticised, attacked and undermined when she said she did not want one – after a 34-week scan revealed that Aidan had Down’s syndrome.

The three claimants argue that to allow a fetus with Down’s syndrome to be aborted after the 24-week limit for non-disabled fetuses was unlawful discrimination and “stereotypes and demeans” disabled people.

They are bringing the case against health and social care secretary Sajid Javid.

Jason Coppel, barrister for the claimants, told the court this week of Crowter’s lengthy campaign to change the law.

He said: “Today is the latest stage of a campaign she has been engaged in to change attitudes towards people with Down’s syndrome and in particular a campaign for the removal of what she regards as the discriminatory provision of the 1967 act.”

He said that a diagnosis of Down’s syndrome was the most common reason for fetuses to be aborted after 24 weeks.

Coppel told the court that Heidi Crowter and Aidan Lea-Wilson had been among the minority of fetuses diagnosed with Down’s syndrome who were not aborted and that they both now live “happy and fulfilled lives, as do – the evidence shows – the great majority of people with Down’s syndrome”.

He said the claimants believed it was “morally and ethically wrong to destroy a human life on the grounds of disability”.

And he said that the part of the Abortion Act which allows for later termination of fetuses likely to be born “seriously handicapped” (in the words of the legislation) – section 1 (1) (d) – was “discriminatory and demeaning”.

The three claimants also want the court to declare that Down’s syndrome should not be considered a “serious handicap” under the act.

The court heard that about 90 per cent of fetuses diagnosed with Down’s syndrome in Britain are aborted.

Coppel told the court that the UN’s committee on the rights of persons with disabilities had called on the UK government four years ago to change its abortion law, arguing that it was “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”.

He also pointed to a report by the UN’s special rapporteur on the rights of persons with disabilities, who said in December 2019 that such abortion policies “aggravate” the message that disabled people “ought not to have been born”.

But Lord Justice Singh, one of the two high court judges hearing the case, alongside Mrs Justice Lieven, expressed concerns about some of Coppel’s arguments.

He said: “Isn’t it obvious that this is about giving women a choice – whether they continue with their pregnancy or not?”

He said there was “very powerful evidence” of women “who desperately want to have a baby, they learn very late in their pregnancy of a severe disability and they do the best that they can do.

“Sometimes, the evidence suggests, out of love for the baby they are carrying, they choose to exercise the right given by parliament [to have an abortion after 24 weeks].

“I am not sure one can say she should have just allowed the fetus to develop… as if that is all there is to it… when a woman who wants to have a child very late in pregnancy after the 24 weeks threshold learns that this child is going to have very severe disability.”

He said it was not a “fanciful” example to suggest that a disabled baby “may suffer pain in the first days, weeks or perhaps months of life”.

He added: “If the law is incompatible with ECHR, presumably parliament would have to deny that woman that choice in those circumstances.

“Is that right? Is that then going to be the consequence?”

Sir James Eadie, for the government, later told the court: “The question this case throws up is where should society set the limits on criminalising women for the choices that they make in deciding whether or not to have an abortion.

“That question… raises profound social, moral and ethical questions, weighing a variety of different rights, interests and indeed beliefs.”

He said the legislation was “fundamentally about the choices – desperate and difficult choices in many cases – that confront pregnant women” and that there was “no negative stereotyping of the disabled” involved.

He said that any decision by a pregnant woman to abort a disabled fetus “says nothing about their views about disability generally”.

Sir James added: “No-one denies, or can possibly deny… particularly those of us who had the privilege of meeting Heidi yesterday… [that people with Down’s syndrome] can and do lead healthy, fulfilling lives, bringing joy to those around them.

“But equally… there are serious potential lifelong consequences that come with that condition in varying forms.

“Not every family is well-equipped to deal with those consequences emotionally or otherwise.”

The case ended yesterday (Wednesday), with the second day of the hearing held completely remotely after someone connected with the court or the case reported a positive COVID test.

Lord Justice Singh, in announcing that judgement would be reserved to a future date, said it was a “very important and difficult case”.

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