MCGREGOR
IN THE past few months, the words 'Roe vs. Wade' have been said in the United States media almost every day, as they seek to replace two Supreme Court Justices. Roe v. Wade is a 1973 United States Supreme Court decision arising from an action brought by an unmarried pregnant woman, who claimed that she was unable to obtain a legal abortion in Texas and had no money to obtain an abortion outside of the state.
She contended that the Texas law, which proscribed an abortion only if it was procured on medical advice for the purpose of saving the life of the mother, was unconstitutional. The Supreme Court decided that the abortion law was, in fact, unconstitutional.
In Jamaica, the 1864 Offences against the Persons Act is similar to the old Texan law. It provides that it is, prima facie, illegal for a pregnant woman to attempt to abort her foetus, or for any other person to attempt to do so. The offender could face life imprisonment. A person who supplies the substance or equipment for use in procuring an abortion may also be imprisoned for up to three years. It is important to note that these charges may be laid even if the woman is not pregnant at the time of the attempted abortion.
COMMON LAW
However, the common law brought flexibility to the legislative position in a 1938 English case called R v Bourne. In this very sad case, a 15-year-old girl became pregnant after she was raped. A highly skilled and reputable surgeon performed an abortion free of cost in order to preserve the life of the young girl, whose mental and physical health were at risk. His reward was a charge for unlawfully procuring the abortion of the girl.
The surgeon was acquitted after the judge directed the jury that, in order to convict the surgeon under the Offences against the Person Act, the prosecution had to prove beyond reasonable doubt that the abortion was not performed in good faith for the purpose only of preserving the girl's life. The judge went further to say that the surgeon need only show that he had a reasonable basis for concluding that the continuation of the pregnancy would make the patient a mental and physical wreck.
Our local law combines the provisions in the 1864 Act with the Bourne case, so abortions procured for the purpose of preserving the health of the pregnant woman are lawful. However, it is still not clear:
1. Who may perform an abortion?
2. At what stage of the pregnancy an abortion may be legally performed, on what evidence the decision should be taken and by whom?
3. Whether abortions may be performed to terminate pregnancies resulting from rape or incest.
4. Whether the health or other impairment of the foetus will be a factor in determining whether an abortion may be legally performed.
LEGAL IN SOME CASES
This debate has surfaced on our national agenda repeatedly over the past 30 years but the only other statement as it relates to the issue of abortion is contained in a Statement of Policy issued by the Ministry of Health in 1975. Barbados amended its abortion laws in 1983, thereby legalising the procedure in certain circumstances, including cases of rape and incest.
Perhaps the efforts of the most recently formed committee headed by Dr. Wynante Patterson will finally bear fruit.
Sherry-Ann McGregor is an attorney-at-law and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback to lawsofeve@yahoo.com.
