Murder, she wrote?

Stephen Vasciannie

IN DECEMBER last year, the Medical Association of Jamaica placed the matter of abortion on the agenda by issuing a policy statement calling for clarification of the law on the subject. Some months before, in January 2000, Dr. Eden Godfrey was arrested and charged by the Hanover police for performing an abortion on a 14-year-old girl. To the best of my knowledge, Dr. Godfrey's case is yet to be heard, while the Medical Association's request for clarification in the law has received a Parliamentary response.

Matters in Jamaica often have a shelf life of nine days. That much is given. However, the question of abortion, and in particular, the circumstances in which a medical doctor may undertake this surgical procedure, cannot be placed in this category: quietly, surreptitiously, and frequently, young women seek means to terminate unwanted pregnancies. The problem needs to be addressed, particularly as trained doctors themselves regard the law as ambiguous.

Of course, it may be that Parliament is afraid to address the topic because it stirs deep religious and moral passions. But perhaps that is precisely why the Parliament should consider the question, for, what is the point of a legislature if its members cannot, at least, consider matters of special concern to the entire population. Moreover, it cannot be too difficult to identify the issues involved - though solving them may be another matter.

On the one hand, some of us hold strongly to the "right to life" perspective: this position, which has been advanced by church groupings and others, regards life as commencing at the point of conception. And, consequently, it posits that the termination of pregnancy, by definition, amounts to the taking of life, contrary not only to fundamental moral principles, but also to the laws of Jamaica, as currently structured.

In broad outline, the "right to life" position is opposed by those who embrace the "right to choose": for supporters of the latter category, the central issue in any abortion must be the right of the woman to determine what takes place in her body. Thus, on this position, based mainly on the ideas of personal sovereignty and privacy, the State should have little place in determining the life choices of the prospective mother, especially in circumstances where birth could lead to serious hardship for both mother and child.

Within the clash of absolutes, right to life versus right to choose, there are quite naturally points of subtlety and areas for compromise; but ultimately, the positions remain fundamentally different. In the United States, where fundamental moral questions are likely to find their way into both the legislature and the judiciary, different positions on abortion have indeed become a litmus test of political correctness: Roe v. Wade, Planned Parenthood v. Casey, and other cases set out fairly clear markers in favour of the pro-choice position, but the right to life perspective is never short of public support in some communities.

It is time for clarity in Jamaican law as well. The current Jamaican legislation on the subject dates back to 1864, and contains at least one serious point of ambiguity. The relevant law is to be found in Sections 72 and 73 of the Offences against the Person Act. Section 72 concerns both the prospective mother and other persons who may be involved in performing an abortion. In essence, Section 72 concerns itself with both the prospective mother and with other persons who may be involved in carrying out an abortion. In the case of the prospective mother, the provision stipulates that if she "unlawfully" administers "any poison or noxious thing" or if she "unlawfully" uses "any instrument or other means whatsoever" to procure a miscarriage, she will be guilty of a felony, and liable to life imprisonment.

A similar rule applies under Section 72 to other persons who may "unlawfully" undertake activities with the intent of bringing about a miscarriage, again with the prospect of life imprisonment facing the guilty party. Section 73 is apparently less draconian: it stipulates that any person who "unlawfully" supplies items knowing that they are to be used for an abortion is guilty of a misdemeanour, and shall be liable to three years' imprisonment for his or her efforts.

The common law

On the face of it, then, life imprisonment awaits those who perform abortions. But the matter is actually a little more complicated than that. Notice that Sections 72 and 73 are concerned with instances in which abortion-related activities are "unlawfully" undertaken; naturally, this raises the question whether there are lawful means of undertaking abortion, and what, if any, are the constraints on those lawful means. This logical question is answered neither in the Offences against the Person Act nor in any other legislative provision of the Jamaican Parliament. Some guidance may, however, be found in the approach taken by Macnaghten J. in The King v. Bourne. In that case, Macnaghten noted that the word "unlawfully" when used in the present context was not meaningless, and he construed it to imply that an abortion would be undertaken lawfully if it is done in good faith for the purpose only of preserving the life of the mother.

In The King v. Bourne, Macnaghten further noted that the term "preserving the life of the mother" should be understood in a reasonable sense, so that it would cover not only the case of saving the mother from violent death, but also the instance in which continuing the pregnancy would "make her a physical or mental wreck". In subsequent cases, Macnaghten's approach has been widened, so that it appears that an abortion is allowed under the common law where it is necessary to preserve the life or the health of the woman.

Notwithstanding this conclusion concerning the common law, however, I still believe that Parliament should intervene. The main case on the subject is a first instance decision made sixty years ago, and its turns on nimble analysis by Macnaghten J., for the Offences against the Person Act does not really say anything about preserving the life of the mother. Parliament also needs to step in to clarify the law, not least because the common law conclusion conflicts with the perceptions of the person in the street. This lack of certainty causes untold mental suffering to some women, and drives others to backstreet butchery. And then, of course, there are careless men who go 'round singing "Murder, she wrote", without a serious thought on the subject, one way or the other.

Stephen Vasciannie, an attorney-at-law, teaches at the University of the West Indies.

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