Legal Rights to Access Abortion

Julian Lewis Excerpts

Monday 28th November 2022 Westminster Hall

[Tonia Antoniazzi]

I fundamentally disagree with those comments. As a woman, to see what has happened in America does give me fear. I do not believe that there is a great amount of misinformation, but I do believe that where we get our information from—the hon. Gentleman raises a valid point—is very, very important. We must not stay in the echo chambers that I spoke of at the beginning of my speech. We must discuss and debate, which is what is so good about this opportunity and the petition.

[Dr Julian Lewis (New Forest East) (Con)]

The hon. Lady is incredibly generous in giving way. I applaud the tone in which she is presenting this case. The problem that some of us are grappling with is that, in America, what appears to have happened is that the Supreme Court had its political complexion changed and therefore came to a different decision. I, for one, regret the overturning of Roe v. Wade.

Having said that, it therefore seems strange, as my neighbour, my right hon. Friend the Member for New Forest West (Sir Desmond Swayne), has said, to suggest that we should move away from the system that we have where Parliament decides what should and should not happen on a matter of policy of this sort, and hand it over to judges for whatever interpretation of the law they may choose to come up with.

[Tonia Antoniazzi]

Again, that is a valid point that we can debate and discuss today. Does the policy being enshrined in a Bill of Rights actually work? Is that the political lever that is necessary? I do not necessarily believe that that is the case.

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[Fiona Bruce (Congleton) (Con)]

It is a pleasure to serve under your chairmanship, Sir Graham, and to follow the hon. Member for Strangford (Jim Shannon). I thank the hon. Member for Gower (Tonia Antoniazzi) for the gracious tone in which she introduced the debate—it is so right, on such a sensitive issue. It is encouraging to note how many colleagues are in the Chamber today to express concern about the wording of this petition, and I join them. The idea of a right to abortion not only conflicts with the established position of international law on the right to life, but would cause huge complications for our domestic law. Including abortion in a Bill of Rights is inappropriate, and likely to result in extensive litigation to establish the extent of such a right. Whatever our views on abortion, the petition is therefore misguided from a legal perspective. I agree with the response of the former Justice Secretary, my right hon. Friend the Member for Great Yarmouth (Brandon Lewis), who said that there is no strong case for change.

Let me refer to one point made by the hon. Member for Gower, who mentioned just one woman bringing forward this petition. It is true that the petition has been brought in the name of one person, but let us be under no illusion: the move to classify abortion as a human right is part of a well co-ordinated national and international campaign to do so.

First, let me comment on the subject from the international perspective and make a few points about the robust protection of the right to life in international law, and the explicit rejection of the so-called right to abortion. It is important to start with that perspective, because we have heard it said that the UK must adopt more expansive abortion laws because of international law—but why should we? We are not under any obligation to liberalise abortion laws from international legal texts. None of the nine core treaties recognised by the UN have recognised abortion as a human right. By common definition, human rights are inherent or inalienable rights or freedoms afforded to every person without discrimination. They must be upheld and protected by Governments, and I am sure that any new Bill of Rights in this country will seek to robustly uphold those fundamental rights, but international texts on human rights have never included abortion. I shall reference that with four points.

First, the international covenant on civil and political rights affirms the inherent right to life. It contains a provision explicitly to protect the life of a pregnant woman. In the preparatory texts, or travaux préparatoires —I think I have nearly got the French right—it is explained that that is to

“save the life of an innocent unborn child”.

Secondly, the declaration of the rights of the child states that

“the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth…the need for such special safeguards has been…recognized in the Universal Declaration of Human Rights”.

That quote from the declaration of the rights of the child was confirmed by the convention on the rights of the child.

The UK has ratified all three of those treaties. Indeed, the preamble to the convention on the rights of the child was very much the impetus behind our landmark Children Act 1989. Under that convention, all countries are obligated to

“ensure to the maximum extent possible the survival and development of the child”,

including the unborn child.

[Dr Julian Lewis]

I have been listening to both sides here and I am not hearing an answer to one question that seems to me fundamental: at what point does a fertilised egg become a viable human being with rights? From one side, I am not hearing any recognition that a baby about to be born is actually viable and has rights; and from the other side, I am not hearing that a newly fertilised egg is not yet a viable human being and therefore does not have the same rights as a human being. It is going to be a dialogue of the deaf until both sides recognise that this is a spectrum and not an either/or.

[Fiona Bruce]

That discussion has been ongoing for a long time. Many in this room hold different views on the subject. I happen to believe that life begins at conception, but I know that others take a different view.

Thirdly, the convention on the elimination of all forms of discrimination against women, CEDAW, also does not advance any concept of a right to abortion. Nowhere in the text does it reference terms such as “reproductive rights”, “pregnancy termination” or “abortion”. Instead, it requires states to provide suitable care and services for women during pregnancy. Fourthly, the former UN special rapporteur for health has told the UN General Assembly that there is no international law on the matter of abortion.

It is also important for us to note that the European Court of Human Rights has never ruled that countries in the Council of Europe need to consider abortion as a human right, even though it has considered the matter several times over the past 20 years. Three points are relevant here. First, the Court has affirmed that article 8 of the European convention on human rights, the right to a private and family life, cannot be interpreted as conferring a right to abortion. I will quote from a 2010 case:

“The woman’s right to respect for her private life must be weighed against other competing rights and freedoms…including those of the unborn child”.

Secondly, the Court has ruled that forced abortions are a breach of article 3—the prohibition on torture—noting that forced abortions can have

“long-lasting negative physical and psychological effects”

on women. Thirdly, the Court has reaffirmed that there is no actual right to abortion, even in the—I accept—tragic case of rape.

The UK really is under no pressure from the UN or from the European Court of Human Rights to reform its abortion law by classifying abortion as a human right. I would now like to consider the issue from the domestic perspective. I know that we have already had a lengthy discussion of the subject during today’s debate, but I would like us to acknowledge how chaotic it would make our laws here if we included abortion as a right—as a human right.

We have already had the discussion, and there are different views on what a right to abortion would mean. Would it equate to the wholesale decriminalisation of abortion? Would it create an absolute right to abortion? Could it mean the removal of gestational limits, allowing abortion up to birth? Could it mean abortion based on the gender of the foetus or the removal of medical safeguards, including the involvement of doctors? Would it mean the erosion of conscience rights for medical professionals? All of those questions would be thrown up.

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[Ian Paisley]

That is an important point that I will come to later when I touch on the matter of decriminalisation.

There were 214,869 abortions in 2021. I looked that up. That is about 40,000 people short of the population of Walthamstow. Just think of the number, if we were to line them up. Do you know what that says to me, Sir Charles? It speaks to the utter, abysmal failure of abortion regulations. Why so many? Why, after so many years—decades and decades of this regulation—is that necessary? There were 214,869 women who felt it was necessary to have an abortion.

[Dr Lewis]

I sympathise with the hon. Gentleman, but he is not going to carry the House with an argument that says that the number of abortions is equivalent to the human population of a city when a vast proportion of those abortions will have been at a very early stage—barely fertilised eggs. Although I see Members on the Opposition Benches nodding in agreement with me, I say to them that the demand for an absolute right to abortion similarly but in reverse fails to recognise that a very late-term abortion is killing an embryo that is viable. That is why this is a dialogue of the deaf.

[Ian Paisley]

I am sorry that the right hon. Gentleman feels it is a dialogue of the deaf; I do not think that is the case. It is important that we are, for the first time in a long time, actually having a sensible debate on this matter, because in numerous debates on abortion in the past, people—principally male Members of the House—have been silenced. They have been called out, heckled and told not to speak on an issue that does not concern them. Indeed, we heard the comment earlier in the debate that behind every abortion is a woman—full stop. No, no, no: behind every pregnancy is not only a woman but the life of the unborn and the male who was involved in that pregnancy. Until we have full engagement and an educational process that addresses those issues and gets this nation into a proper debate on this matter—not in a climate of fear and of, “I’d better not speak out because we’re not allowed to say these things any more; they are too difficult to say if you’re a man”—I am afraid this will be a debate of the deaf, but it does not have to be. That is the point.

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[Mr Jacob Rees-Mogg (North East Somerset) (Con)]

It is a pleasure to serve under your chairmanship, Sir Charles, and to speak in this debate, which was so elegantly introduced by the hon. Member for Gower (Tonia Antoniazzi).

There are two things to look at. First, there is the question of the Bill of Rights, which the hon. Member for Walthamstow (Stella Creasy) said I might mention, because this issue is about trying to impose an American construction on the British constitution and I do not think that in that sense it actually works. For example, it is much forgotten that the British Bill of Rights has a right to bear arms for the maintenance of a Protestant militia, which may be more welcome among some Opposition Members than it is for me personally. I see the hon. Member for Strangford (Jim Shannon) is nodding in favour of having a Protestant militia. The second amendment to the similar US Bill of Rights—the US constitution—maintains the right to bear arms, again for the purpose of a militia, and that has become an absolute in the US constitution, whereas our right to bear arms has been gradually changed by Parliament over the centuries, so that it is completely controlled.

I do not, then, really see what the petitioners are trying to achieve in what they ask for. They want the right to abortion to be particularly protected, but what they are talking about is not a protection: it is protection protectionless, because any subsequent Act of Parliament could automatically change it in whatever way Parliament decided. As my right hon. Friend the Member for New Forest West (Sir Desmond Swayne) correctly pointed out, there is no greater protection than something being in an Act of Parliament, and that is already the situation that exists. There is not a majority in Parliament to change that. Whether there is a majority in the country at large—we have heard about some opinion polling—who would like to see it changed is another matter, and a matter for debate. However, the law is as solid as it can be from the point of view of those who are in favour of abortion legislation as it is.

The petition therefore misfires on those grounds alone. It would make no sense to introduce this matter into the Bill of Rights that the Government are bringing forward. The Bill actually deals with the relationship between the Executive, the legislature and the courts, rather than trying to move to a codified constitution which, as far as I am aware, is not the policy of His Majesty’s Government. If it were, I am not sure I would support it. The Bill of Rights, as proposed, is a sensible step towards establishing how the Executive and the judiciary relate now that we no longer have the European Court of Justice sitting above us. The Bill is not right for the particular proposition brought forward by the petitioner.

There is then the issue of abortion itself, which obviously underlies this whole debate. To me, it is the greatest sadness that the number of abortions that take place each year take place. The hon. Member for North Antrim (Ian Paisley) pointed out that there were 214,869 last year. I think all sides would agree that this is a matter of the deepest sadness. There is nobody who welcomes abortion or wants there to be this very high level of abortion. Think of it over the period since the Abortion Act came in: more than 10 million babies have been aborted. We know that there are more than 100,000 people alive today in Northern Ireland who would not otherwise be alive had Northern Ireland had the Abortion Act like the rest of the United Kingdom. We know this to be true because pro-abortionists complained about this claim to the Advertising Standards Authority. As I understand it, the Advertising Standards Authority said that the number being claimed was actually lower than the reality, instead of being overstated.

My right hon. Friend the Member for New Forest East (Dr Lewis) said that we cannot look at it in terms of numbers of cities and people like that, but we can. There are more than 100,000 people in Northern Ireland who are alive today who would not be alive had Northern Ireland had the abortion rules that we have in England, Wales and Scotland. That seems to be a modern tragedy: this number of people had no opportunity for a life because they were ripped untimely from their mother’s womb. Think of that number: 214,869. In a four-year period, the destruction of life is as a great as it was in the four-year period of the first world war. Those are the numbers we are dealing with. That is the tragedy of abortion.

[Dr Lewis]

May I slightly correct what my right hon. Friend has just said? It is not the destruction of life, in many cases, but the destruction of potential life—unless one agrees, as I think my right hon. Friend would, with our hon. Friend the Member for Congleton (Fiona Bruce), that life begins at the moment of conception. However, most people do not agree with that: they believe that life develops during the course of gestation. That is why my right hon. Friend and constituency neighbour, the Member for New Forest West (Sir Desmond Swayne), is right when he says that the embryo acquires rights along the way, not from the outset.

[Mr Rees-Mogg]

My right hon. Friend raises the question of the viability of life. The viability of life—when does that start, Sir Charles? When do you think a life becomes a fully independent created life? Perhaps my right hon. Friend thinks we should be like the ancient Romans in their treatment of the newborn baby. St Macrina rescued newborn babies who had been exposed in ancient Rome because their life was not viable without intervention and support. They were allowed to die, until the early Christians, who were thought to be peculiar for doing so, went and saved them. It was particularly the case, as it happens, with disabled babies. We know that the abortion laws we have allow for the full-term abortion of babies with minor disabilities, as my hon. Friend the Member for Congleton (Fiona Bruce) pointed out. This is the tragedy of abortion and its destruction of life. My right hon. Friend the Member for New Forest East wants to quibble about when life begins. I accept that this is perhaps more a theological question about what is the start of life, but that new embryo has the potential for life. It has been formed as a separate being that is separate and different from the parents from which it came.

[Mr Rees-Mogg]

The job of doctors is to save life. It is quite clear that an ectopic pregnancy that may threaten the life of the woman carrying the baby is a case where an intervention may be made to save the life of the woman. That is a perfectly traditional and acceptable understanding of how to maximise the saving of life, while not pretending that there is not life, because there is. There are two lives.

[Dr Lewis]

I will not keep intervening, but I take slight objection to the use of the word “quibble”. I readily acknowledge that there is vast uncertainty and a grey area about the point, or at least the part of the spectrum, at which potential life becomes a viable human being. Just because we cannot identify an exact point in the process does not mean that, at the beginning of the process, the fertilised egg is only a potential human being without the same rights as the viable human being at the end of the process.

[Mr Rees-Mogg]

The viable point is one that my right hon. Friend admits he cannot define, but there is a clear point of conception where there is a new genetic entity. It is unbelievably clear and straightforward. To say that there is some later date—it may be 21, 22 or 24 weeks—is not the heart of the argument. The heart of the argument is actually that this new life started at the point of conception. The tragedy is the 214,869 lives lost last year.