Category: Law

Constitutional Law: Private Hospital May Refuse to Perform Abortion

Betty Berger

Saint Louis University Law Journal
Saint Louis University Law Journal

Extract
Conclusion
It is evident that the abortion question in relation to private hospitals is being fought on two grounds. One ground is state action. The other is freedom of religion and moral conviction. Decisions are beginning to indicate that public hospitals may have to perform abortions if they have the facilities. On the other hand, decisions such as Bellin, indicate that courts may not find sufficient state action when a private hospital is involved even if that hospital has received public funds. Even if they do, Bellin indicates that the right of conscience may protect the private hospital which is also sectarian and opposed to abortion on religious and moral grounds.’ Furthermore, the United States Congress has established a policy that receipt of funds from Hill-Burton or any other programs covered by the Health Services Extension Act of 1973 should not force a hospital to provide personnel and facilities for abortions. In addition, the first amendment protects the rights of individuals and groups to refuse to do what their religion prohibits. Abortions are generally a convenience and not a matter of life and death if not performed in the private hospital. In the balance of convenience versus first amendment freedoms, courts are unlikely to let convenience prevail. Private hospitals have sold neither their rights nor their private status..

Berger B. Constitutional Law: Private Hospital May Refuse to Perform Abortion. Saint Louis U Law J. 1974;18(3): 440-460.

(Correspondence) Inquiry into British law on abortion

PE Shea

Extract
Alan Massam’s article “Abortion Act gains outweigh drawbacks – British inquiry” (Can Med Assoc J 110: 1301, 1974) is a disturbing example of slanted journalism, aimed at further poisoning the minds of the bulk of doctors who sit on the fence in the abortion issue. . . .Mr. Massam, and apparently the inquiry, attempt to subtly convince us that abortion is a socially, morally, legally acceptable fact of life and we need only concern ourselves with its details. . . . Surely all our human rights are secondary to the right to life. This is the basic principle that the inquiry and Mr. Massam choose to ignore.

Shea P. (Correspondence) Inquiry into British law on abortion. Can Med Assoc J. 1974 Sep 7;111(5):388.

(Correspondence) Attitudes to Abortion

GS Banwell

British Medical Journal, BMJ
British Medical Journal

Extract
The right to conscientious objection is embodied in the Abortion Act, and the Lane Committee has not suggested that this section should be amended. It is difficult to understand why you advocate that a consultant gynaecologist, alone among surgical specialists, should be compelled to perform a particular operation other than on the basis of his own judgement. The right to conscientious objection to the performance of therapeutic abortion continues to be the law of the land. . . But it must remain the duty of the medical profession to protest that therapeutic abortion involves the destruction of human life.

Banwell G. (Correspondence) Attitudes to Abortion. Br Med J. 1974;2(5915):383. Available from:

(Editorial) Attitudes to Abortion

British Medical Journal

British Medical Journal, BMJ
British Medical Journal

Extract
Abortion for a wide range of indications is, however, now an established part of conventional medical practice in Britain and the committee seemed a little impatient with those who would not recognize that fact. A conscience clause was manifestly essential when the Act came in, since many gynaecologists had sincere moral or ethical objections to abortion on some of the grounds introduced by the new Act. Seven years later the situation has changed. As the committee points out,the number and attitude of gynaecologists are important in determining the level of service which can be provided, so that “it is inevitable that the health authorities should prefer for appointment to certain posts those who see abortion as properly part of clinical gynaecological practice.” What this implies is that a young doctor may find some difficulty in taking up a career in gynaecology in the N.H.S. if he is fundamentally opposed on ethical grounds to abortion in the terms of the Act.

BMJ. (Editorial) Attitudes to Abortion. Br Med J. 1974;2(5910):69-70.

(Correspondence) Obstetric Appointments and the Abortion Act

Conor J Carr

British Medical Journal, BMJ
British Medical Journal

Extract
I am afraid, therefore, that the potential trainee with a conscientious objection to abortion must face the fact that even if he is fortunate enough to obtain trainee posts in units where his conscience can be respected, he will still have to face the fact at the end of his training, that if he does not obtain a post in a large teaching unit, he is likely to have to face the choice of either leaving the specialty or the country.

Carr CJ. (Correspondence) Obstetric Appointments and the Abortion Act. Br Med J. 1971 Jul 31;3(5769):305.

(Correspondence) Working of the Abortion Act

E Allan, Phyllis Taylor, Kirsten Walker, MS Fisher, John Nixon, GR Spencer

British Medical Journal, BMJ
British Medical Journal

Extract
It is reported that over 90,000 pregnancies in Britain are now terminated annually and this must place a considerable extra burden on the already overstretched resources of the N.H.S., resulting in even longer delays for those women needing other forms of gynaecological surgery. Some young hospital doctors and nurses who wish to gain experience in the field of obstetrics and gynaecology are discouraged from doing so by the pressures which would inevitably be put upon them to assist at, or perform, abortions.

Allan E, Taylor P, Walker K, Fisher M, Nixon J, Spencer G. (Correspondence) Working of the Abortion Act. Br Med J. 1971;305.

(Correspondence) Obstetric Appointments and the Abortion Act

JA Stallworthy

British Medical Journal, BMJ
British Medical Journal

Extract
. . . man’s right to live and work according to the dictates of conscience is an asset precious to him and medicine itself. Because of their religious conviction two senior members of this division of obstetrics and gynaecology do not perform abortions. . . If when they leave . . . they can be replaced by men or women of equal calibre Oxford will be fortunate. The integrity, experience, skill, and potential of applicants for these posts will be more important than their willingness to terminate pregnancy.

Stallworthy J. (Correspondence) Obstetric Appointments and the Abortion Act. Br Med J. 1971 Jul 10 3(5766):108.

(Editorial) The abortion situation

CMAJ

Canadian Medical Association Journal, CMAJ
Canadian Medical Association Journal

Extract
One certainty at least about the situation as regards the liberalization of abortion in Canada is that the problem it presents is not going to go away. . . . one cannot but conclude that the dilemma posed by this state of affairs cannot be dismissed by the ingemination of ready-made phrases such as “rights of the fetus” and “reverence for life”, no matter how respectable these may sound. One suspects that sometimes such phrases are used to rationalize inflexible attitudes and spare a probing of deeper motivation. In some instances they may well suffice for individual physicians who wish to dissociate themselves completely from the issue. But they will not satisfy society at large, to whom another set of slogans (“every baby a wanted baby” and “a woman has the right to the control of her own body”) has a stronger appeal. . . Has not the time come, therefore, for society, including the medical profession, to admit the state of affairs that prevails and face up to its obligations? . . . No serious person believes that abortion should be considered as an alternative to the regular practice of birth control. The by-no-means negligible morbidity associated with abortion and the occasional fatality, apart from the demands it makes on hospital and medical staff, make it much too costly when simple means of conception control are readily available. . . the escape from this dilemma is not in saying that birth control should have been used. . . [advocates sex education as described in Brave New World]. . . as long as human beings are sometimes careless and irresponsible, even if they are no longer ignorant, unwanted pregnancy will occur and the question of its termination, if we have the respect for motherhood we profess, will have to be faced.

CMAJ. (Editorial) The abortion situation. Can Med Assoc J. 1971 May 22;104(10):941.