Why won’t judges condemn disability discrimination?

Today, England’s Court of Appeal rejected a case against the UK Government’s Department of Health and Social Care focusing on “downright discrimination” in abortion law. Disability activist Heidi Crowter, 27, who has Down’s syndrome, fronted the legal challenge, which sought to remove a section of the Abortion Act permitting terminations past the legal limit of 24 weeks if a preborn baby is disabled. High Court judges previously ruled that the provision is lawful and seeks to take account of “competing rights”.

Speaking after the ruling was handed down this morning, Heidi said she sees it as an affront to her community: “We face discrimination every day in schools, in the workplace and thanks to this verdict the judges have upheld discrimination in the womb… This law was made in 1967 when we were not even allowed to go to school because of our extra chromosome, so I think it’s time that the judges move with the times and actually meet people with Down’s syndrome and see the people behind the chromosome”. She was visibly upset outside court.

Heidi’s legal team also expressed frustration, saying disabled people’s views weren’t even considered: “Rather than affirming the equal value of those with disabilities, [this ruling] further adds to the stigmatisation they suffer. This is for the simple reason that the court concluded that the perceptions of people with disabilities about a law which allows the ending of a life because of disability are irrelevant. Yet the law protects the unborn without disabilities, leading to the understandable perception disabled lives are of lesser value or no value at all.”

‘We face discrimination every day and thanks to this verdict the judges have upheld discrimination in the womb’

Heidi Crowter

I’m appalled and dumbfounded by today’s news. The provision in question is a clear example of unique discrimination against a marginalised group. If a preborn baby does not have a disability the limit for abortion is 24 weeks. If a preborn baby is disabled, abortion can occur at any point up to birth. This sends a message that disabled people are an inferior and disposable class, and perpetuates negative stereotypes about their quality of life. In a society that claims to champion equality, and decries disability discrimination outside the womb, it’s anathema.

I’m not the only person who feels this way. Polling commissioned by Don’t Screen Us Out found that a majority of people in England, Wales and Scotland think disability should not be a grounds for abortion. Just as other characteristics like sex and race aren’t grounds. Supranational organisations agree. The UN Committee on the Rights of Persons with Disabilities has criticised countries that provide for disability abortions. A 2017 report by the Committee said laws like those in the UK “stigmatize persons with disabilities as living a life of less value than that of others”.

A 2013 Parliamentary Inquiry at Westminster was similarly critical of current legal arrangements in England and Wales. The vast majority of people who gave evidence said allowing abortion up to birth on the grounds of disability is discriminatory, contrary to the spirit of the Equality Act 2010, and affects wider public attitudes towards discrimination. At the time, MPs suggested the relevant provisions in the Abortion Act 1967 be repealed. Their recommendations were ignored by the government of the day, and successive governments since then.

‘The current law sends a clear message that disabled people are a separate and disposable class’

The laudable stance of British citizens, MPs, and disability rights experts at the UN on this issue contrasts starkly with that taken by Court of Appeal judges. The court is clearly out of step with wider culture and may be shown to be in time. Heidi Crowter has vowed to fight on to the Supreme Court, if she obtains permission to appeal, saying: “When Wilberforce wanted to abolish the slave trade  he didn’t give up when things didn’t go his way. I won’t give up either because the law should be changed to get rid of a negative focus on Down’s syndrome”.

As I’ve said before, parliamentarians don’t need to wait for out-of-touch judges to recognise and name unlawful discrimination against disabled people before taking action to correct legislation. An MP could easily bring forward a proposal to abolish the rule for disabled preborn babies and seek support from compassionate allies across the House. An MSP could also do this, and change Scotland’s devlolved arrangement on abortion, which also singles out disability. It’s surely right that they do this, and take a forward stride towards disability equality.

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