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June 27, 2019   5 mins

I go where angels fear to tread. Well, actually, that is not strictly true. The angel Gabriel told the anxious pre-teenage Mary to “fear not” when she discovered she was pregnant. But the angel was not intervening in a divisive culture war that has made abortion a dangerous issue to try and discuss calmly. And for this reason, I have tended to avoid the subject where possible.

For what it is worth, my own position on abortion is one I suspect many people share. My instincts are pro-choice when the ‘baby’ is still a cluster of cells and they become increasingly pro-life the nearer the baby – dropping the inverted commas – is to term. And I think things are morally fuzzy somewhere between the two.

Personhood is an emergent concept and one that cannot be readily pinned to a definitive date within a pregnancy, when it suddenly, magically springs into being. I understand that the law has its needs, and clarity about exactly when an abortion is acceptable and unacceptable is a part of those needs. The miracle of life, however, does not lend itself neatly to the requirements of law.

But the recent case of the unnamed young woman who was ordered by the court to have a termination against her will is not exactly an argument about the ethics of abortion per se, more about the nature of consent and the limits of the courts in this most sensitive of subjects. And it raises a number of very thorny issues.

The facts of the case are as follows. A young woman in her twenties – though with the mental age of a six to nine-year-old – is pregnant. The baby is 22 weeks in gestation, and healthy. The young woman and her family are Roman Catholics. She says that she wants to have the child, and her family want her to have it too. The pregnant woman’s mother is a former midwife and has said she will help care for the child.

But Mrs Justice Lieven in the UK Court of Protection argued that due to the diminished mental capacity of the mother, she should be forced to have an abortion. The NHS Trust that is responsible for looking after the pregnant woman advised this course of action. Her social worker disagreed. The judge apparently took the view that this is not a case of the women’s right to choose because the woman in question doesn’t have the mental capacity to make a reasoned choice. “I think she would like to have baby in the same way that she would like to have a nice doll,” the judge commented.

In subsequent developments, the Court of Appeal has overturned this ruling, and it seems now that the pregnancy will continue to term. But the original decision of the Court of Protection, and the advice of the NHS, remains troubling. What level of mental capacity is required for a woman to have the right to choose whether or not to proceed with her pregnancy?

Indeed, would those who defend a woman’s right to choose be happy if the situation was reversed. What if the woman in question didn’t want to proceed with the pregnancy but the court decided she was not in a position to make that judgment and thus forced her to continue with the pregnancy? Would her limited mental capacity disqualify her from making this choice too?

I don’t ask this in a polemical way; rather, I want to suggest that the original decision of the Court of Protection could be seen to cut both ways. For however much that decision was regretted by pro-life campaigners, there is also potential threat in that decision for the defenders of choice too.

At the heart of all this is a debate about what makes a person’s choice informed and rational. And also, who, in the absence of the pregnant woman’s fully developed appreciation of the consequences of having a child, should be making the decision on her behalf: the court or her family? That original decision assumes a government authority will have a better sense of the woman’s best interest than her own family.

I do not believe the first judge acted out of anything other than a concern for the well-being of the pregnant women. “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,” she admitted. For me, however, and in these particular circumstances, this feels like an intrusion too far.

Part of the reason I am generally hesitant to talk about the ethics of abortion, and dislike the tiresome pontificating on both sides of the debate, is that the circumstances of moral decision making about such weighty matters are almost invariably particular and unique, they always involve a consideration of very specific family circumstances. But this case introduces a new element: a court deciding it knows better than the pregnant woman and her family. And on that matter, outside observers are right to take an interest.

On the question of whether or not a woman with diminished mental capacities is in a position to make an informed and reasoned choice, I offer two observations. First, part of the process of growing up as a child is that one is exposed to – and allowed and encouraged to make – more and more choices about the things that effect your world.

By six, and certainly by nine, the child is making reasoned choices all the time. And while a child’s choices are not always good ones, and parents have to accept final responsibility, one cannot simply discount the wishes of a child, or of a woman with the mental age of a child. This is not a determinative point, but it needs seriously to be taken into account.

Second, and not unrelated, even in adulthood we make decisions the consequences of which are unknown, especially when it comes to having children. Who among us really understands fully how the arrival of a child will affect our life? Some practise their capacity for care – on dolls for instance – but when it comes to children we don’t ever know what will be really required of us until it is.

Like personhood, the ability to make an informed choice does not appear, hey presto, according to some date in the calendar. Again, the law has its needs. But the law does not always map moral reality as closely as we might like. I know some nine-year-olds that I would trust with making an informed choice more than I would trust some 29-year-olds. Again, not determinative. But a consideration nonetheless.

The presence of religion in this case could be seen as a complicating factor. Some may worry the religion of the mother is being imposed on the young woman and should thus be discounted. Equally, there may be those who would question the ideological disposition of the judge and how that affects her judgment in this case. Personally, I see no reason to assume bad faith either way. The question here is simple: do we trust the pregnant woman and her parents or the courts to make this decision?

One of the underlying issues here may be whether we feel moral decisions like this should be made on the basis of, and in the context of love – something personal, emotional, spiritual, relational – or whether these questions require something less subjective and more like an objective calculation of general utility and wellbeing. And here I feel more confident in my response. In my book, a human-centred approach to incredibly difficult questions such as this are always to be preferred to bureaucratic and institutional ones. And that means, broadly speaking, families should trump courts.

The Court of Appeal has taken away this conflict, for now and in this case, at least. But a door has been opened. Our culture wars about abortion tend to make us immediately run towards defending entrenched pro-life or pro-choice positions. This troubling case should make us do neither. For there is trouble enough here for both sides.

Giles Fraser is a journalist, broadcaster and Vicar of St Anne’s, Kew.