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Dear Editor
The recent High Court decision on the constitutionality of our abortion law moved it from 1873 to 1938.
We ‘received’ the English law of the early 1860s in 1873. In the 48 years since our independence, we have found neither the wisdom nor the courage to modify it.
How do we arrive at 1938? Because of a landmark decision at the Old Baily criminal court, R v Bourne [1938] 3 All ER 615.
In 1937, England established an Interdepartmental Committee on Abortion, chaired by Norman Birkett. A distinguished and exceptionally courageous gynaecologist, Aleck Bourne, wanted the committee to have a real appreciation of the situations doctors faced.
Parents asked Dr. Bourne to provide an abortion on their 14-year-old girl who had become pregnant after being raped by five officers of the Royal Horse Guards. Two hospitals had refused to do so.
Bourne examined the girl and was satisfied that she was sufficiently physically developed to carry the pregnancy. So, it was not a threat to her life. He nevertheless performed the abortion without charge. He then promptly called the Chief Constable and reported his actions to ensure his arrest.
On trial in London, he argued that had he allowed the girl to carry the pregnancy it would have made her a “mental wreck.”
In his instructions to the jury, Justice Macnaghten explained that he had difficulty understanding the difference between life and health. Under the law, protecting her life was legal, but protecting her health was not. He could not grasp the practical distinction.
The jury acquitted Bourne. The decision extended the legal ground for abortion from the very limited condition of saving the woman’s life to protecting her health, a far wider window.
Of course, only ten years later, in 1948, the World Health Organisation defined health as “a state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity”
It is therefore entirely appropriate that our Ministry of Health is also one of Wellness and Social Services.
So, when Judge Jawara Alami, included protecting the health of the woman in her ruling, she opened the legal conditions way beyond the limited life condition of 1873 and took us forward all the way to 1938.
All that remains is for civil society and women’s organisations to push for decriminalization and gain the other 88 years, to get us to 2026.
Sincerely,
ASPIRE
ASPIRE is a pro-motherhood, pro-family, pro-choice, non-governmental advocacy group registered in Dominica and five other Caribbean countries. It promotes research and dialogue with civil society and governments to advance fairness and justice in reproductive health.
