Last week, the Court of Appeal ruled against Heid Crowter in her campaign to see the law on abortion changed. Currently, the law allows abortion after 24 weeks where a foetus has a serious handicap or Downs Syndrome. Heidi had argued that this discriminated against people with Downs Syndrome and therefore went against their human rights as established both in the European Convention on Human Rights and the UK Human Rights Act.
The claimants’ case on the appeal was that the case-law of the European Court of Human Rights establishes that the right to respect for private life conferred by article 8 of the ECHR includes a right to respect for “the sense of identity and the feelings of selfworth and self-confidence” of people with serious disabilities. They say that a law which permits the abortion of a seriously disabled foetus interferes with that right because it conveys a message that the lives of those born with a serious disability (“the living disabled”) are of lesser value. They say that that interference is not “in accordance with the law”, as required by article 8, because the language of section 1 (1) (d) is too imprecise, and that it is in any event not justifiable. They also say that the current state of the law is discriminatory and is thus contrary to article 14 of the ECHR.”
Heidi lost her appeal because the court ruled that:
section 1 (1) (d) of the Act does not interfere with the rights of the living disabled. The Court recognises that many people with Down’s syndrome and other disabilities will be upset and offended by the fact that a diagnosis of serious disability during pregnancy is treated by the law as a justification for termination, and that they may regard it as implying that their own lives are of lesser value. But it holds that a perception that that is what the law implies is not by itself enough to give rise to an interference with article 8 rights: 
In other words, the court were not prepared to recognise a right not to be offended. They were seeking a more objective criteria for whether or not human rights have been infringed. This has caused a few people to ask why it was that Heidi’s legal team focused on a subjective question instead of an objective one.
The answer is that this was the only route open to Heidi at this stage. When the case was first brought, her legal team argued both that the current abortion law infringed on the rights of people with disabilities who are currently alive. However, their primary argument was that the law discriminated against unborn babies with Downs Syndrome. The original ruling determined that this argument failed because the ECHR and Human Rights Act were not intended to confer rights on the unborn and therefore a foetus was not protected. To be explicitly clear, the UK legal position is that children in the womb do not have human rights. The court also ruled that Heidi was not permitted to appeal against this.
Therefore, Heidi’s team could only appeal against the ruling that the rights of those post birth, with Downs were being infringed. They had to rely on their secondary argument and that’s not really what you want to be doing when going into the court room. However, I believe that they were right to persist with the case because it enabled them to continue to draw attention to the appalling situation created by our abortion laws.
The problem I have with the ruling is that I do think that even within the parameters, this is putting too much focus on a subjective question. The issue is not whether or not those with Downs Syndrome or disabilities feel hurt and offended by the law. The issue is whether or not their human rights are put at risk and their identity, status and value diminished by how the law works. Now, it is not easy to prove that because one might first of all have to collect a lot of evidence showing people discriminated against and then attempt to draw a causal link between such discrimination and the culture that the law creates. In other, words to show that the law operates through nudge theory to create a culture which permits people to behave in a discriminatory fashion against those with Downs Syndrome. Whilst difficult to prove, and whilst having a subjective element, I do not believe that this is a purely subjective consideration. There is an objective issue at stake here.
As I said, the challenge is about demonstrating that the abortion law does encourage such discrimination. I think that this would be extremely hard to do. However, the point might be made that at the one point where there is a loophole, an opportunity to discriminate against those with Downs and where it is measurable, that they are quick to seize that opportunity. In other words, even if the law does not recognise the unborn child as having human rights, we can at that point observe how those children without any protection are treated and see that they are discriminated against. We may tentatively conclude from this that a culture does exist where there is systemic and structural discrimination against those with Downs Syndrome and those with serious handicaps.
We might also note that there is currently an attempt going on to extend euthanasia to allow for infanticide when a child has a serious handicap. In other words, we can observe how medical and legal professionals have their thinking shaped by pre-existing laws.
Now, personally I believe that the argument has to address an important elephant in the room. Even if Heidi Crowter had got the Appeal Court judges to agree that abortion after 24 weeks should not be possible on the basis of Downs or serious disability, Downs would still be seen in UK law as a legitimate reason for abortion up until 24 weeks.
It is my view therefore that the argument needs to be made that disability or Downs should never be a permissible justification for abortion. It is so important that we move away from a culture where those suffering from a disability and those considered as different are seen as a burden, a problem to avoid or remove.
Of course, the biggest problem of all remains. We still have that horrible situation where according to the court’s ruling, children do not have any rights at all prior to birth. Our law dehumanises them against all the scientific evidence that these unborn babies are fully human and the philosophical and theological evidence that they are people with dignity, made in the image of God and so to be treated with respect and care.
In recent articles I have been talking about the issues of euthanasia and abortion. This is because I believe a culture of life that challenges this world’s culture of death flows out of the Gospel. It’s important that we support Heidi and others in campaigning for the rights and dignity both of those with Downs Syndrome and those not yet born. No human being should be outside of the protection of the Law.