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U.K. Appeals Court Overrules Mandated Abortion for Disabled Woman

Renee Fabian
Courthouse columns

On Friday, a British judge ruled a 20-something-year-old U.K. woman with an intellectual disability must have an abortion, against the wishes of the woman and her mother. The justice presiding over the case based the decision on her opinion of whether or not the disabled woman had the capacity to understand what having a baby meant. On Monday, the decision was overturned on appeal.

According to Sky News, the young woman involved in the case is 22 weeks pregnant. Courts ruled she and her mother, who is reported to be a former Nigerian midwife, cannot be named. The pregnant woman was described as having learning difficulties, the mental abilities of a 6 to 9-year-old and a mood disorder. She is under the care of her mother and a National Health Service (NHS) trust, which initiated the legal proceedings to allow doctors to abort the woman’s child.

The case was heard by Justice Nathalie Lieven at the Court of Protection in London, a court that hears cases regarding the Mental Capacity Act. The pregnant woman, her mother, the woman’s lawyers and a social worker all objected to the abortion. The woman’s mother had agreed to help care for the child. However, Lieven court-mandated the abortion in what she called an “enormous” and “heartbreaking” decision based on the best interests of the woman.

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“I am acutely conscious of the fact that for the State to order a woman to have a termination where it appears that she doesn’t want it is an immense intrusion,” Lieven said, according to news reports. “I have to operate in [her] best interests, not on society’s views of termination.”

Sky News reported Lieven made her decision based on the U.K.’s 1967 Abortion Act, which allows abortions up to 24 weeks into pregnancy, and the 2005 Mental Capacity Act (MCA). According to an NHS website outlining MCA, the law requires courts to “assume a person has the capacity to make a decision themselves, unless it’s proved otherwise” and “wherever possible, help people to make their own decisions” It adds, “If you make a decision for someone who doesn’t have capacity, it must be in their best interests.”

Based on news reports, the circumstances of how the woman got pregnant are unclear and a police investigation is ongoing. It’s also unclear what evidence NHS doctors presented during the hearing that lead to Lieven ruling the woman may not understand what it means to have a child.

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“Pregnancy, although real to her, doesn’t have a baby outside her body she can touch,” Lieven said. “I think she would like to have a baby in the same way she would like to have a nice doll.”

Lieven added she believed the woman would experience more harm if she brought the baby to term and then had to put the baby in foster care or up for adoption as opposed to an abortion. “I think [the woman] would suffer greater trauma from having a baby removed [from her care],” Lieven said, according to the Catholic News Agency.

While the woman’s mother agreed to help care for her granddaughter, Lieven suggested the disabled woman may have to leave her mother’s home if the baby was placed there or the mother may return to her home country, presumably Nigeria. It is unclear what evidence Lieven based these comments on.

Reports of this case quickly spread around the globe amid an ongoing and emotional debate about abortion, especially regarding disability and eugenics — the practice of trying to prevent disabilities or other illnesses among the population. In the U.K., abortion laws allow women to legally abort fetuses who may have a “severe” disability beyond the 24-week period.

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In the United States, laws are determined by individual states, and disability protections vary. In 2017, for example, Ohio passed a bill preventing people from terminating pregnancies on the basis of a prenatal Down syndrome diagnosis. Advocates hailed this decision as an important protection against negative disability attitudes, especially in the medical community.

Disabled lives are valuable, and protections like those enacted in Ohio are a step toward recognizing that, as The Mighty’s Parenting Editor Ellen Stumbo wrote in 2017:

When my daughter [with Down syndrome] was born, she challenged what I viewed as perfect, worthy, important, and valuable in life. I had made wrongful assumptions about what her life would be like because of my negative disability attitudes, only to quickly recognize her life had the same value as someone without a disability, and her life was just as beautiful and full. The treasures I have discovered along the way because of my daughter’s diagnosis remind me our greatest contributions are not found in our strength, performance, eloquence or confidence.

I won’t say Down syndrome is ‘easy’ because parenting a child with a disability does bring extra challenges. But challenges are not what define the value of life.

In this case, some disability advocates see Lieven’s decision as a clear mark of discrimination against and devaluation of disabled lives. It has not been reported the woman’s baby has a disability. Others see Lieven’s decision as an overstep of the Mental Capacity Act, considering the disabled woman wants to have the baby and has a support system in place.

On Monday, the Guardian reported appeal court judges Lord Justice McCombe, Lady Justice King and Lord Justice Jackson overturned Lieven’s decision, halting the mandated abortion, after the woman’s mother further challenged the court order.

“There is a clear overall view of a young woman who wishes to have a baby,” the woman’s mother’s lawyer, John McKendrick, QC, said during the appeal.

The Court of Appeal justices said they would provide reasons for their overruling of the court-ordered abortion at a later date.

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