Okay, time to get back in the saddle after a short break to recharge my batteries and we’ll start, as so often seems to be the case, with abortion and an editorial which finds the Telegraph in somewhat conspiratorial mood:

The decision of the Crown Prosecution Service (CPS) not to prosecute two abortion doctors who allegedly broke the law by offering gender-specific terminations raises a host of questions that need urgently to be answered. The apparent abuses were exposed by a Daily Telegraph undercover investigation into suggestions that clinics were prepared to offer “sex-selection” abortions to women who were carrying girl foetuses. After an 18-month police investigation, the CPS agreed there was sufficient evidence to bring charges and a realistic chance of securing a conviction. However, they decided not to proceed on “public interest” grounds.

It is a long-established convention that the CPS can discontinue a criminal action if it is deemed to be against the public interest. The reasons for doing so usually involve cases in which a suspect is mentally ill or where national secrets may be exposed or a prosecution is deemed disproportionate to the crime committed. In the two cases under investigation, none of these considerations applies. The CPS said that one “highly relevant factor” was that the General Medical Council, the professional body, was carrying out its own inquiries and had powers to discipline the doctors concerned. This, it appears, is the principal reason why the CPS has decided not to go ahead with a trial.

By no stretch of the imagination does that constitute the “public interest” as most people understand it. Why does the fact that the GMC is looking into the matter prevent the law being upheld? It is hard not to conclude, as Fraser Nelson observes opposite, that there is a reluctance to confront either the abuse of the abortion laws or the ethnic dimension to gender-specific terminations. Everyone knows that the law is already widely flouted; but that is no reason to water it down further. And as to whether terminations are taking place because mothers do not want girls, other countries manage to discuss this subject in a mature way; yet here even the official data is suppressed.

If this prosecution has been dropped for political reasons, then Keir Starmer, the Director of Public Prosecutions, needs to say so. It is not for the CPS to decide that some laws can be broken because it might be socially and culturally difficult to uphold them – or, as Lord Macdonald, a former DPP said, to protect professionals from prosecution. The consequences here are far-reaching: the British Pregnancy Advisory Service is of the view that it has effectively legalised gender-specific abortion – a clearly unacceptable state of affairs without recourse to Parliament. Mr Starmer has promised to explain why this prosecution was halted. It is in the public interest that he does so as soon as possible.

Hell hath no fury like a newspaper that doesn’t get the pay off it expected from a high profile sting operation.

The problem with this entire story from the outset is that the vast majority of people commenting on it are operating from a position on ignorance and a failure to understand abortion law. Here’s Channel 4’s Cathy Newman, also writing in the Telegraph, making a very basic mistake:

Anyone who seeks to end an unborn baby’s life because it’s the “wrong” gender is perpetuating a practice that is not only morally repugnant but illegal. Sex-selection abortion is banned in the UK under the terms of the 1967 Abortion Act, but although it’s primarily a problem in parts of India and China, there’s growing evidence it’s also carried out illegally in communities in this country.

Wrong.

Sex selective abortions are NOT banned in the UK under the Abortion Act or indeed any other Act of Parliament because statute law is entirely silent on the subject. In reality, sex selective abortions can be carried out perfectly legally in the UK as long as they can be justified under one or more of the grounds under which abortion is permitted in law, the most obvious example being where there is substantial risk of a child inheriting a serious sex-linked genetic disorder from its parents, and the law is framed in such a way (i.e. in terms of risk) so as to permit such terminations to be carried out even if it is not possible to test the foetus for the presence of such a condition in utero.

Similarly, there is no reason in law why a sex-selective abortion could not legally be carried out if doctors are satisfied that the continuance of the pregnancy is likely have an adverse impact on the mental health of the putative mother greater than that associated with the termination.

Do such situations ever arise in real life?

Yes, I fully expect they do, although these will be uncommon occurrences. Nevertheless you do, from time to time, hear of, or encounter, families that are trying for their fifth, sixth, etc. child in the hoping of having one of a different gender to their other children and it’s by no means difficult to imagine that some women in those circumstance could be tipped over in to severe depression if their latest pregnancy turn out to be not what they were hoping for.

So, in some circumstances sex-selective abortions are perfectly legal. It is only where the decision to abort a foetus of particular gender is predicated on reasons that lie outside the legal framework for abortions set out in the 1967 Act that an unlawful act could take place – and the key phrase here is ‘could‘.

The problem at the heart of both the Telegraph’s editorial and Newman’s commentary is simply that neither author properly understands how the UK’s abortion laws are constructed and how this serves to constrain the CPS’s options in these cases.

Abortion, in the UK, remains first and foremost illegal under the provisions of sections 58 and 59 of the Offences Against the Person Act 1861 under which is it unlawful for anyone to perform an abortion or to procure or supply the means to carry out an abortion with the intent that an unlawful abortion should then be performed.

What the 1967 Abortion Act does is create an exemption to the provisions of the 1861 Act for licensed medical practitioners operating under the specific conditions proscribed by the 1967 Act.

This being the case, the question then becomes one of for what offence, exactly, could the doctors caught up in the Telegraph’s sting have actually be prosecuted given that all they actually did was agree to sign off on and arrange an appointment for a sex-selective abortion after having been told openly that the abortion was being sought specifically for cultural reasons that fall outside the scope of the 1967 Act?

The offence at section 58 of the 1861 Act is clearly inapplicable as no abortion actually took place and I doubt very much that section 59 would provide scope for a viable prosecution either as arranging a referral to an abortion clinic strikes me as falling short of the terms of the offence, which deals with the procurement and supply of the tangible means to perform an unlawful abortion.

So, unless the CPS were prepared to take a punt on an inchoate conspiracy charge or wheel out the Criminal Attempts Act 1981, which strikes me as a long shot given the latter requires actions to be taken that go beyond mere preparatory acts and it’s not at all obvious that a mere referral for a procedure that might take place at later date fits that particular bill, then what we’re left with is at most an offence under section 2 of the Abortion Act 1967, which deals with the Secretary of State’s power to make regulations on the notification of terminations to the Chief Medical Officer at the Department of Health, because in making the referral the doctor would have knowingly had to enter false information on the paperwork.

The problem there is that this is a summary offence and subject a maximum fine of level 5 on the standard scale, which is a mere £5,000, and that raises the question of whether such a prosecution is even worth pursuing.

Unusually, perhaps, these are cases in which the General Medical Council’s ability to impose sanctions on the doctors in question for professional misconduct significantly outweighs any potential sanctions that could applied under the criminal law – the doctors in question could, after all, be struck off the medical register and denied the ability to practice medicine in the UK – such that it may make much more sense for the criminal law to take a back seat on this occasion.

Once you understand the legal position here, what becomes obvious is that all the Telegraph actually has to offer here are the usual innuendos and misrepresentations set against a background in which there is a marked absence of supporting evidence and concrete facts.

Yes, there may indeed be ‘sensitivities’ surrounding this issue, as Fraser Nelson suggests – citing the usual unnamed sources ‘close to the investigation’ naturally – but such sensitivities may exist for very good reasons, not least the lack of supporting evidence. Nelson at least provides a rather more honest account than the main editorial of the circumstances in which the Department of Health initially declined to release the results of a recent statistical study looking for evidence of sex selective abortion in minority communities:

Last year, a group of Canadian academics decided to check if this was happening among the immigrant communities of Ontario. For Canadian-born women, the boy-girl ratio was normal. But for Indian-born mothers it was 111, almost the same as in India itself. For South Koreans, it was 120. The irony is that in South Korea decades of hard work by the government to tackle discrimination have paid off, and its boy-girl ratio is now normal. The study threw up a painful question for Canada: by refusing to confront “female foeticide”, was it allowing the problem to thrive? And could more be done to tackle it?

A similar British study was conducted, but its results were initially kept secret by the Department of Health on the grounds that publication was “not in the public interest”. After parliamentary uproar, the figures were released – and the public certainly weren’t interested. It barely made the news. South Korean, Chinese and Kosovar mothers were shown to have an unusually low number of girls, but the gap wasn’t massive. There was nothing in the study to terrify ministers – and yet their first instinct, like that of the CPS, was that Britain couldn’t handle the truth about immigration and abortion. Even if the truth is rather dull.

As you can see, these figures weren’t suppressed at all, contrary to what the main editorial says, their release was merely delayed for a short period while a full analysis of the data – which the Telegraph itself reported – was completed as noted by Earl Howe on 25th February 2013 in response to a question tabled by Lord Alton:

Lord Alton of Liverpool (Crossbench)

To ask Her Majesty’s Government, further to the Written Answer by Earl Howe on 4 February (WA 1), which mothers’ countries of origin display a gender imbalance in the birth ratio, and what in each case is the size of that imbalance.

Earl Howe (Parliamentary Under Secretary of State (Quality), Health; Conservative)

Recent analysis has shown that women from some countries had birth ratios different from that of the United Kingdom as a whole; i.e. 100 female births to 105 male births. There are many possible causes of these ratios. The department is carrying out further analysis of related data. We do not consider it is in the public interest to disclose details of the countries in question while this analysis is under way as it is not currently possible to conclude that these variations are the result of intervention rather than natural variation.

Nevertheless, Nelson still neglects to mention that the reason that it was ‘not in the public interest’ to release the figures back in February was simply that the DoH’s analysis had not been completed at that point in time.

Despite the lack of concrete evidence, Nelson confidently pronounces sex selective abortion to be a ‘real problem’ while Cathy Newman claims there is ‘growing evidence it’s also carried out illegally in communities in this country’ although neither noticeably provides any actual evidence in support of their assertions.

In reality, the sole piece of non-anecdotal evidence for the existence of sex-selective abortions in the UK is to be found in this 2007 paper by Dubuc and Coleman and even this paper serves more to illustrate the difficulties inherent in locating statistical evidence for the existence of such practices within UK birth statistics than anything else.

What the study found was evidence of an anomalous trend in the birth ratios between 1990 and 2005 in one very specific population sub group; women who were born in India but who are now living in the UK who were undergoing at least their third pregnancy having already given birth successfully to two children. To put that into context, out of over 715,000 births registered in England and Wales in 2011, the number of births to women in that particular population subgroup was around 1,400 or so giving an estimated discrepancy in the number of female births compared to the expected natural ratio of 100 girls to 104 boys, using Dubuc & Coleman’s figures, of just 60 ‘missing’ female births*.

* If you want to see my working out for this figure, it’s in this post – U.

So that’s 60 possibly unlawful abortions out of 189,931 abortions (0.031%) carried out in England and Wales in the same year, assuming that all of them were carried out in this country and that none of those women (assuming they did actually have an abortion) underwent the procedure overseas.

On those figures, the increased discrepancy in the birth ratio for this sub group at higher birth orders (i.e. 3rd birth or higher) would increase the overall male to female birth ratio for women born in India but now living in the UK from 104 males to 100 females to 104.9 males to 100 females, a figure that falls well within natural variations in male to female birth ratios.  If its not already obvious, this discrepancy would be impossible to spot in the overall figures for birth registrations without performing an extremely detailed and carefully stratified analysis of very specific subgroups using data compiled over a period of years. An analysis based on just a single year’s figures would not be sufficient to rule out the possibility of such a discrepancy arising out of random chance and natural year on year variations in birth ratios; there has to be evidence of consistent trend over time to be confident that what we have is a genuine anomaly requiring further detailed investigation.

Much as I agree with Dr Sarah Wollaston’s comments on Twitter:

“I’m not anti-abortion, but selective abortion of girls harms women & reinforces misogynist attitudes. Why isn’t that issue public interest?”

It doesn’t automatically follow that prosecuting a couple of doctors caught up in newspaper sting is the best way to go about serving the public interest in this particular situation, not least because it does nothing to tackle any of the actual causes of sex-selective abortion. Increased scrutiny of abortion requests originating from women belonging to small population sub groups where it is thought that sex-selective abortion may be being practised, whether driven by law or a fear of prosecution, is not going to prevent such abortions taking place. At most it will move the problem on elsewhere, either to other countries where there is no such scrutiny or, in the worst case scenarios, back onto the backstreets with all the risks that can entail.

Everything we know about abortion, from our own country’s history pre-1967 to the current global figures for induced abortion which shows that, amongst other thing, almost half of all abortions worldwide are carried out in unsafe conditions with the overwhelming majority occurring in countries where abortion is either illegal, subject to prohibitive legal restrictions or simply almost impossible to access to the lack of adequate and affordable healthcare, should tell us that prohibition not only does not work but that it constitutes a far greater risk to women’s health and well-being than legal access to abortion under safe conditions.

So yes, while sex selective abortion does indeed harm women and reinforce misogynistic attitudes, so indeed does prohibition which, by denying women control over their own bodies, does those same things on a very much larger scale.