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“A Fifth Freedom” or “Hideous Atheistic Expediency”? The Medical Community and Abortion Law Reform in Scotland, c.1960–1975

Published online by Cambridge University Press:  07 December 2011

Gayle Davis  and
Roger Davidson
Gayle Davis*
Affiliation:
Centre for the History of Medicine, University of Glasgow
Roger Davidson
Affiliation:
School of History and Classics, University of Edinburgh
*
Address for correspondence: Gayle Davis, Centre for the History of Medicine, University of Glasgow, Lilybank House, Bute Gardens, Glasgow G12 8RT, UK; e-mail: [email protected]
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The purpose of the Medical Termination of Pregnancy Bill, published on 15 June 1966, was to amend and clarify the law relating to termination of pregnancy by a registered medical practitioner. When David Steel, a young Liberal MP from the Scottish Borders, put this bill forward, some suggested that a Scottish politician had no need to introduce abortion reform since Scots law was already satisfactory in this regard. Certainly, abortion law in Scotland was more flexible than its English counterpart, and the number of prosecutions few. The line between criminal and non-criminal abortion was, however, just as indistinct, with great medical uncertainty in this area. On becoming law, the 1967 Abortion Act was the first piece of abortion-related legislation to cover Scotland, England and Wales collectively. None the less, for a variety of legal and moral reasons, abortion policy and practice continued to differ on either side of the Border.

Type
Articles
Information
Medical History , Volume 50 , Issue 1 , 01 January 2006 , pp. 29 - 48
Copyright
Copyright © The Author(s) 2006. Published by Cambridge University Press

References

1 Full details of the act can be found at Public General Statutes, Elizabeth II, CH. 87.

2 See, especially, K Hindell and M Simms, Abortion law reformed, London, Peter Owen, 1971.

3 See, for example, Hera Cook, The long sexual revolution: English women, sex, and contraception 1800–1975, Oxford University Press, 2004; L A Hall, Sex, gender and social change in Britain since 1880, Basingstoke, Macmillan, 2000; J Weeks, Sex, politics and society: the regulation of sexuality since 1800, 2nd ed., London, Longman, 1989.

4 See, for example, M Durham, Sex and politics: the family and morality in the Thatcher years, Basingstoke, Macmillan Education, 1991; B Brookes, Abortion in England, 1900–1967, London, Croom Helm, 1988; L J F Smith, ‘The abortion controversy, 1936–77: a case study in “emergence of law”’, PhD thesis, University of Edinburgh, 1980.

5 See, for example, J Keown, Abortion, doctors and the law: some aspects of the legal regulation of abortion in England from 1803 to 1982, Cambridge University Press, 1988; S MacIntyre, ‘The medical profession and the 1967 Abortion Act in Britain’, Soc. Sci. & Med., 1973, 7: 121–34.

6 See, especially, L Hoggart, Feminist campaigns for birth control and abortion rights in Britain, Lewiston and Lampeter, Edwin Mellen Press, 2003; M Latham, Regulating reproduction: a century of conflict in Britain and France, Manchester and New York, Manchester University Press, 2002; S Sheldon, Beyond control: medical power and abortion law, London, Pluto Press, 1997.

7 As Sheldon sums up: “Medicalisation has been the greatest strength of the British abortion law and its greatest weakness. It has simultaneously depoliticised the extension of women's access to abortion services, defused political conflict and left women dependent on the vagaries of medical discretion and good will”. See Ibid., p. 168.

8 For an historiographical introduction to the concept of “medicalization”, see R Nye, ‘The evolution of the concept of medicalization in the late twentieth century’, J. Hist. Behav. Sci., 2003, 39: 115–29.

9 See, for example, G Gordon, The criminal law of Scotland, Edinburgh, W Green & Son, 1967.

10 Wellcome Library, Archives and Manuscripts (hereafter Wellcome), SA/ALR/C.119, R Ireland, ‘Scottish section of the historical and international appendix’ (undated).

11 K McKnorrie, ‘Abortion in Great Britain: one act, two laws’, Criminal Law Review, 1985: 475–88, p. 483.

12 This was founded on a ruling by a single judge in Glasgow (HM Advocate v Anderson, 1928), proceeding on the assertion that “to attempt to do what is physically impossible can never … be a crime”. The ruling was approved by three High Court judges in 1937, the law thereafter being regarded as settled.

13Observer, 6 Feb. 1966.

14 National Archives of Scotland (hereafter NAS), AD63/759/1, House of Commons question, 19 July 1966.

15 NAS, JC26/1967/117, High Court of Edinburgh trial papers, 24 Jan. 1967.

16 NAS, HH41/1820, John Hobson, MP, to Bruce Millan, Scottish Office, 20 Feb. 1967.

17 NAS, AD63/759/2, Note by Crown Agent, Feb. 1967. It is unclear from the legal records why Ross pleaded guilty.

18 Ibid.

19 Wellcome, SA/ALR/C.115, Note by Sir Dugald Baird (undated).

20 Although Glasgow was much the larger of the two, both cities were plagued by poverty and severe employment and housing shortages at this time.

21 S MacIntyre and L MacAulay (eds), Thirty years and still going strong: papers presented at the 30th anniversary of the MRC Medical Sociology Unit, University of Glasgow, Occasional Paper no.1, MRC Medical Sociology Unit, Glasgow, 1996, p. 1.

22 Baird later reflected that, in the largest area of Scotland—the western—the organization of maternity services was complicated by the many large obstetric hospitals; whereas the north-east and eastern regions had only one main teaching hospital each, which had many advantages, such as a common administrative policy, and agreement on methods of investigation and treatment. See D Baird, ‘An area maternity service’, Lancet, 1969, i: 515–19, p. 516.

23 The ultimate combination of Chairman of the Board and Professor of Obstetrics was a powerful one, adding greatly to Baird's power to influence policy and appointments.

24 G Bhatia, ‘Social obstetrics, maternal health care policies and reproductive rights: the role of Dugald Baird in Great Britain, 1937–65’, MPhil thesis, University of Oxford, 1996, p. 59.

25 However, it should be noted that Hugh McLaren, who was Baird's first registrar in Aberdeen, and who subsequently became a leading critic of abortion as Professor of Obstetrics and Gynaecology in Birmingham, later questioned the extent to which social abortions had been conducted in Aberdeen prior to the Second World War. See Scotsman, 22 Dec. 1966.

26 Hindell and Simms, op. cit., note 2 above, p. 54. However, most patients were married women of high parity, worn down by years of childbearing. Terminations in unmarried women were still rare at this time, and abortion “on request” viewed as unacceptable.

27Turiff and District Advertiser, 11 Feb. 1966.

28 D Baird, ‘A fifth freedom?’, Br. med. J., 1965, ii: 1141–8, p. 1141.

29 Ibid., p. 1148.

30 However, this is not surprising, given that textbooks such as J Glaister and E Rentoul, Medical jurisprudence and toxicology—the “medico-legal bible” for generations of doctors in Scotland—failed to differentiate England and Scotland in this regard. See 12th ed., Edinburgh and London, E & S Livingstone, 1966, pp. 363–6.

31 Oral testimony suggests that indications other than of an emergency medical nature were little used, most doctors believing social and psychological grounds to be illegal. Transcripts of a series of interviews with retired general practitioners, gynaecologists and psychiatrists, Apr. 2003 to Apr. 2004, are held by Gayle Davis. These were granted on condition of anonymity and confidentiality and are not available for consultation.

32Observer, 30 Jan. 1966.

33Daily Mail, 25 July 1962.

34 The ALRA was the most notable of the women's campaign groups involved in this issue. In 1936, this group of articulate middle-class women, active in sex reform and socialist politics, was formed to bring women in from the periphery of the abortion discussion. See Brookes, op. cit., note 4 above.

35 A Jenkins, Law for the rich, London, Victor Gollancz, 1960, highlighted the social inequalities that existed in abortion practice with regard to both income and geography.

36 M D Kandiah and G Staerck (eds), The Abortion Act, 1967, London, Institute of Contemporary British History, 2002, p. 25. Abortion was not Steel's first choice. The “touchy” subjects of homosexual and abortion law reform were suggested to him, for both of which private members' bills had already been passed in the House of Lords and awaited a champion in the Commons. Steel plumped for abortion because Scottish opinion was seen to be adamantly opposed to homosexual law reform. See T Newburn, Permission and regulation: law and morals in post-war Britain, London, Routledge, 1992, p. 142; R Davidson and G Davis, ‘“A field for private members”: the Wolfenden Committee and Scottish homosexual law reform, 1950–1967’, Twentieth Century Br. Hist., 2004, 15: 174–201.

37 Kandiah and Staerck (eds), op. cit., note 36 above, p. 47.

38 D Steel, Against Goliath: David Steel's story, London, Weidenfield and Nicolson, 1989, p. 53.

39 Wellcome, SA/ALR/A.6/1, V Houghton to D Baird, 4 Nov. 1966.

40 Wellcome, SA/ALR/A.6/1, D Baird to V Houghton, 8 Nov. 1966.

41 D Baird, ‘Induced abortion: epidemiological aspects’, J. Med. Ethics, 1975, 1: 122–6, p. 124.

42 During the Second World War, echoes from high-frequency sound waves were used to detect submarines. In 1950s Glasgow, Donald led a team of clinicians and engineers who modified this technology to provide clinically useful images and to measure the foetus in the amniotic fluid.

43 I Donald, ‘Abortion and the obstetrician’, Lancet, 1971, i: 1233.

44Scottish Daily Record, 1 Feb. 1967.

45Scotsman, 31 Dec. 1966.

46Scotsman, 26 Dec. 1966.

47Scotsman, 23 Dec. 1966.

48 This was at a time when ultrasound was not used routinely in the management of pregnancy. These scans were, it seems, specially organized to persuade women to continue with their pregnancies. See M Nicolson, ‘Ian Donald—diagnostician and moralist’, pp. 1–26, pp. 21–2 (section 4). http://www.rcpe.ac.uk/library/history/donald/donald1.php.

49 Wellcome, SA/ALR/H.58, Note on a Public Meeting, 6 Dec. 1966.

50The Times, 12 Jan. 1967.

51 New reproductive technologies have subsequently been used more widely to strengthen pro-life arguments. The pseudo-scientific film, The silent scream, became the pièce de résistance of this genre. See Sheldon, op. cit., note 6 above, pp. 151–2. See, also, P Treichler, L Cartwright and C Penley (eds), The visible woman: imaging technologies, gender, and science, New York and London, New York University Press, 1998, chs. 5 and 6; R Petchesky, ‘Foetal images: the power of visual culture in the politics of reproduction’, in M Stanworth (ed.), Reproductive technologies: gender, motherhood and medicine, Cambridge, Polity Press in association with Blackwell, 1987, pp. 57–80.

52 Kandiah and Staerck (eds), op. cit., note 36 above, p. 42. In this sense, both pressure groups were in agreement, finding that it was medical rhetoric which had the greatest potential in fighting their cause.

53 MacIntyre, op. cit., note 5 above, p. 121.

54Daily Sketch, 12 Jan. 1967.

55 MacIntyre, op. cit., note 5 above, p. 125.

56 NAS, HH41/1820, D Cowperthwaite to J Hogarth, SHHD, 28 Nov. 1966.

57 ‘Abortion law reform Bill’, Midwives Chron., 1967, 80: 69–70, p. 70. This is in contrast to the UK Royal College of Nursing, which refused to formulate a policy statement on abortion while the bill was before Parliament, on the grounds that the abortion decision-making process was a medical one and so outside their remit. See, for example, Royal College of Nursing Archives, RCN/4/1972/5, Proceedings of the Lane Committee (hereafter PLC), Submission of Royal College of Nursing, Feb. 1972.

58Scotsman, 31 Dec. 1966.

59 NAS, HH41/1820, A Orcharton, Ayrshire, to Rt Hon W Ross, House of Commons, 3 May 1967.

60Scotsman, 23 Dec. 1966.

61Glasgow Herald, 2 Mar. 1966. Indeed, the eradication of dangerous back-street abortions was David Steel's stated primary aim.

62 Wellcome, SA/ALR/A.6/1, D Baird to V Houghton, 12 Mar. 1967.

63 Donald, op. cit., note 43 above, p. 1233.

64 See Hindell and Simms, op. cit., note 2 above, pp. 166–76.

65 See file NAS, AD63/759/13.

66 NAS, AD63/759/1, Note by D Cowperthwaite, SHHD, 5 Dec. 1966.

67 Ibid.

68 NAS, HH41/1820, W Ross to A Orcharton, 12 June 1967.

69 NAS, HH41/1821, D Cowperthwaite to J Brennan, 10 Aug. 1967. Cowperthwaite wished to “record a strong Scottish view” that the words “existing children of her family” remain in the bill, otherwise “the Bill must be allowed to die”.

70 NAS, HH41/1820, W Robertson to M MacDonald, 2 Mar. 1967.

71Glasgow Herald, 3 June 1967.

72 The conscience clause stipulated that no doctor or nurse be required to participate in abortion work—except in emergency circumstances—should it contradict their own personal beliefs, and was intended to protect the professional standing of medical and nursing staff who chose not to take part in terminations.

73 NAS, HH41/1821, R Lawrie, St Andrew's House, to G Mitchell, Lord Advocate's Chambers, 22 July 1967.

74 Kandiah and Staerck (eds), op. cit., note 36 above, p. 47.

75 This was also a concern voiced by the Church of Scotland in its General Assembly reports of 1966 and 1967, which lamented this very “evident divergence, both of interpretation and practice, in different parts of Scotland”. See Church of Scotland, Report to the General Assembly (1967), p. 511.

76 NAS, AD63/759/2, D Cowperthwaite to R Lawrie, 2 Oct. 1967.

77 NAS, HH102/971, W McCulloch to J Burnett, 15 May 1968.

78 NAS, HH102/971, ‘Abortion (Scotland) Regulations, 1968’, May 1968.

79 Wellcome, SA/FPA/A17/129, ‘Aberdeen shows way on abortion’, Med. News, 18 July 1969. This publication was, it should be noted, heavily biased towards an Aberdeen perspective.

80 NAS, AD101/13, P Layden to Lord Advocate, 17 July 1978.

81 NAS, HH61/1315, Draft Memo by the Secretary of State for Social Services, 1970. Significantly, the terms of reference did not cover any review of the wording or principles of the existing act. See Report of the Committee on the Working of the Abortion Act, PP 1974, XVI (Cmnd. 5579), volume 1, p. 1.

82 NAS, HH61/1315, R Johnson to E Taylor, 21 Oct. 1970.

83 NAS, HH61/1315, R Bell to J Walker, 31 Mar. 1970. In 1970, only 1.5 per cent of abortions in Scotland were performed outside NHS hospitals, and these few cases were performed in a reputable nursing home, the main function of which was not the provision of abortion. See NAS, HH61/1315, Hector Monro, Scottish Office, to Tam Dalyell, House of Commons, 18 Apr. 1972.

84 NAS, HH61/1315, W Miller to R Bell, 4 Nov. 1970; W Miller, SHHD, to R Hughes, DHSS, 16 Nov. 1970.

85 Two were Scottish—Ivor Batchelor, a professor of psychiatry at the University of Dundee, and A M Johnston, a QC and member of the Scottish Law Commission.

86 Replies were received from some thirty medical bodies in Scotland, including the twelve Health Boards, the Royal Colleges, medical and nursing organizations, and four university medical faculties.

87 For a discussion on how this consensus was reached, see A Wivel, ‘Abortion policy and politics on the Lane Committee of Enquiry, 1971–1974’, Soc. Hist. Med., 1998, 11: 109–35.

88 NAS, HH102/1232, Professor E McGirr, University of Glasgow, to Miss M Macdonald, SHHD, 1974.

89 NAS, HH102/1232, C Henderson to L Cunning, 10 Dec. 1974.

90 NAS, HH102/1232, A Welstead, Secretary of Borders Health Board, to Miss M Macdonald, SHHD, 1 Aug. 1974.

91 Wellcome, SA/ALR/C.27, PLC, Submission of Glasgow Maternity and Women's Hospitals Board of Management, 9 Dec. 1971.

92 Wivel, op. cit., note 87 above, p. 122.

93 Wellcome, SA/ALR/C.27, PLC, Submission of A W Smith, Scottish Association of Executive Councils, 20 Dec. 1971.

94 Wellcome, SA/ALR/C.22, PLC, Submission of Board of Management for Coatbridge, Airdrie and District Hospitals, 1972.

95 Ibid.; Scottish Daily Record, 16 May 1973.

96 In this respect, Glasgow Royal Infirmary was exceptional in stressing the co-operation of its nursing staff with abortion work, both in the ward and in the theatre. See Wellcome, SA/ALR/C.35, PLC, Submission of Board of Management for Glasgow Royal Infirmary and Associated Hospitals, Dec. 1971. Oral testimony suggests that nursing objections were not solely due to personal distaste, but also because nurses were not involved in the decision-making process around termination and therefore had difficulty sympathizing with the patients. This Infirmary was relatively unusual in “positively involving” its nurses in abortion-related decision-making, which may be the reason why there was less staff dissent there. Interviews with retired gynaecologist and family planning doctor, 12 Jan. 2004 and 5 Mar. 2004, held by Gayle Davis under the same conditions as those cited in note 31 above.

97 Grampian Regional Health Board Archive, B14/2, Principal Nursing Officer, Board of Management for the Aberdeen Special Hospitals, to Chief Nursing Officer, Aberdeen Royal Infirmary, 16 Sep. 1971.

98 Wellcome, SA/ALR/C.22, PLC, Submission of Board of Management for Coatbridge, Airdrie and District Hospitals, 1972.

99 See, for example, Wellcome, SA/ALR/C.27, PLC, Submission of Glasgow Maternity and Women's Hospitals Board of Management, 9 Dec. 1971.

100 NAS, HH102/1232, Professor E McGirr, University of Glasgow, to Miss M Macdonald, SHHD, 1974.

101Scottish Daily Record, 16 May 1973.

102 Almost half of these were single girls.

103Scottish Daily Record, 16 May 1973.

104 H Homans (ed.), The sexual politics of reproduction, Aldershot, Gower, 1985, pp. 84–5. In relation to abortion, statistics must, of course, be regarded with suspicion since an unknown proportion of women might either give a false address or none at all.

105 To a lesser extent, some women based in the west of Scotland also visited the more “liberal” Scottish cities—particularly Aberdeen and Edinburgh—when unsuccessful in obtaining a termination in Glasgow.

106 NAS, HH102/1232, Notes of Meeting between SHHD and Representatives of the Scottish General Medical Services Committee, 24 Sep. 1974.

107 Wellcome, SA/ALR/C.27, PLC, Submission of A W Smith, Scottish Association of Executive Councils, 20 Dec. 1971.

108 Wellcome, SA/ALR/C.35, PLC, Submission of Board of Management for Glasgow Royal Infirmary and Associated Hospitals, Dec. 1971.

109 NAS, HH102/1232, Notes of Meeting between SHHD and Representatives of the Scottish General Medical Services Committee, 24 Sep. 1974.

110 NAS, HH60/665, R Fraser to G Monro and Secretary of State for Scotland, 8 Dec. 1973.

111 NAS, HH102/1232, PLC, Submission of Royal College of Midwives (Scottish Council), 30 July 1974.

112 Generally speaking, this conservatism appears to have been less apparent south of the Border where, according to Potts, Diggory and Peel, nursing responses to the act shadowed those of doctors, in that a few protested bitterly but most in fact accepted or even welcomed the legislation. See M Potts, P Diggory and J Peel, Abortion, Cambridge University Press, 1977, p. 310.

113 See, for example, E Lee (ed.), Abortion law and politics today, Basingstoke, Macmillan, 1998; Sheldon, op. cit., note 6 above.

114Scotsman, 31 Dec. 1966.

115 For an exploration of the impact of the 1967 Abortion Act on Scottish medical practice, see G Davis and R Davidson, ‘“Big white chief”, “Pontius Pilate” and the “plumber”: the impact of the 1967 Abortion Act on the Scottish medical community, c.1967–80’, Soc. Hist. Med., 2005, 18: 283–306.