Disability rights campaigner Heidi Carter is spearheading a legal challenge against the British state over “discrimination” in abortion law.
Heidi, who has Down’s Syndrome, says it’s wrong that legislation in England and Wales singles out people like her by permitting abortion up to birth if a baby is thought to have a disability. The legal limit for abortion in pregnancies not involving a disability is 24 weeks. Heidi believes this exception sends a harmful message that her life “isn’t as valuable as others”.
Heidi’s legal team made representations in England’s Court of Appeal, after her case was dismissed by the High Court last year. A recent case update on Heidi’s Crowdjustice page states: “This really is a ground-breaking case that will end the stigma created by a law that clearly discriminates against people with Down syndrome and other disabilities. Please support us for this final stretch.”
What Heidi and her team are calling for seems entirely just – whatever our individual views are on abortion itself. Why should abortion be legal up to the very moment of birth simply because a child has some form of disability? Modern politicians wouldn’t dare legislate for abortion up to birth solely on the grounds of sex – that would be sexist. Or race – that would be racist. Laws singling out disability as a grounds are ableist.
The outcome of this case will be massive for the disabled people’s community south of the border. It isn’t just preborn babies with Down’s Syndrome who will be affected by its outcome. The current law is interpreted widely to allow terminations in cases involving a wide range of conditions, including club foot and cleft lip. A win for Heidi and her legal team would see the equal value of every child with a “fetal abnormality” affirmed.
It would also increase pressure on politicians in Scotland to reconsider its devolved abortion framework, which reflects the one in place in England and Wales. Termination is also permitted right up to term in Scotland if a preborn baby is thought to have a disability. And it would be problematic for legislation north of the border to remain as it is, potentially creating disability abortion tourism.
In a societal context where attitudes towards disability are improving, when we are making positive, forward steps towards equality and inclusion, UK abortion law seems particularly regressive. This is certainly how it is seen by the international community. The UN Committee on the Rights of Persons with Disabilities has consistently criticised countries that provide for abortion based on disability.
A 2017 report by the Committee attacked the UK over its abortion law, saying it singles out and stigmatises people with disabilities: “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”.
A 2013 Parliamentary Inquiry was similarly critical. The vast majority of people who gave evidence believed allowing abortion up to birth on the grounds of disability is discriminatory, contrary to the spirit of the Equality Act 2010 and that it affects wider public attitudes towards discrimination. It suggested the relevant provisions in the Abortion Act 1967 ought to be repealed by parliament.
The British public strongly support this course of action. Polling has shown that the majority of people in England, Wales and Scotland feel disability should not be a ground for abortion at all, with only one in three people thinking it is acceptable to ban abortion for gender or race but allow it for disability. There is broad public support for Heidi’s arguments, even if judges haven’t recognised them thus far.
It’s possible, of course, that Heidi will lose this appeal. We’ll find out later in the year. Whilst this would be a real roadblock, it wouldn’t prevent parliamentarians from making a different decision to judges and changing the law. MPs and MSPs could abolish the arbitrary rule for disabled preborn babies and bring abortion legislation more in line with international standards.
Politicians have a chance to do something noble and send a message that disabled babies should not face discrimination in the womb, in the same way disabled people shouldn’t face discrimination after birth. Wherever they hail from – Scotland, England or Wales – and whatever party they represent, it is surely right that they do this.
Jamie Gillies is a political commentator and campaigner. He Tweets at @jmgillies