Subject only to the attitude of the surgeon concerned : judicial protection of medical discretion

Abstract

In this article, through discussion of the more important cases involving the regulation of abortion which have been faced by the English courts, I show how in becoming constructed as a medical matter, abortion is removed from the public sphere into a private realm where it can be regulated by experts who can lay claim to specialist medical knowledge. I deal first with prosecutions for the unlawful procurement of miscarriage under 58 of the Offences against the Person Act, 1861; before going on to look at the case law involving applications for injunctions to restrain an intended abortion; the legality of abortions by medical induction; and another case which is poised to enter the English courts: that of nonconsensual abortion. Second, I look at the implications of medicalization for a feminist reproductive politics. This leads me to highlight, first, some of the practical benefits of the medicalization of abortion and, second, some of its limitations for those who share the goal of entrenching and extending women's access to abortion.