In Britain, as in Europe generally, abortion law has not been made by judges proclaiming glistening, hard-edged rights that cannot be compromised. Rather, abortion law has been made by lawmakers -- imagine that -- seeking to accommodate clashing sensibilities. That is one reason why British law is less extreme than America's essentially unlimited right to abortion on demand.
In Britain, after the 24th week of pregnancy -- "viability," when the child presumably can live outside the womb -- an abortion is permitted only when "there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped." But in 2001 an unborn 28-week-old child was aborted because new techniques for detecting fetal abnormalities indicated that the child had a cleft lip and palate.
An Anglican curate, a 28-year-old woman who was born with a congenital defect of the jaw, tried to get a court to consider this a case of "unlawful killing." She noted that far from being substantially handicapped, she is enjoying life -- as is, by the way, her brother, who has Down syndrome, a genetic defect involving varying degrees of mental retardation. Prosecutors eventually refused to file charges, relying in part on guidance by the Royal College of Obstetricians and Gynecologists that stated there is "no precise definition of serious handicap."
But the prosecutors' refusal goes far toward supplying a definition. The refusal implies that any abnormality can qualify as a serious handicap because seriousness is determined not by its impact on the disabled person's life chances but by the parents' reluctance to be inconvenienced by it. How else is one to understand abortion as an alternative to surgery that corrects cleft lips and palates?
In Britain, more babies with Down syndrome are aborted than are allowed to be born. In America, more than 80 percent of the babies diagnosed prenatally with Down syndrome are aborted. This is dismaying to, among others, the American Association of People with Disabilities, whose premise is that "disability is a natural part of the human experience."
The AAPD worries that increasingly sophisticated prenatal genetic testing technologies will mean that parents who are told their expected babies are less than perfect "will experience pressures to terminate their pregnancies from medical professionals and insurers." The worry is not groundless.
One mother who participated in a study of 3,000 members of five state associations of parents of Down syndrome children reported that when, in 1999, she was told that the baby she was expecting had Down syndrome, a geneticist showed her "a really pitiful video first of people with Down syndrome who were very low tone and lethargic-looking and then proceeded to tell us that our child would never be able to read, write or count change." Try telling that to Jon Will as he navigates Washington's subway system to use his season tickets to the Wizards basketball games and (soon) Nationals baseball games.
When he was born in 1972 -- a time when an episode on a network television hospital drama asserted that people with Down syndrome could not be toilet-trained -- the hospital geneticist asked Jon's parents if they intended to take him home. That question is, surely, no longer asked when Down syndrome babies are born. But there are modern pressures to prevent such babies from being born, pressures that include the perfection-is-an-entitlement attitude of some expecting parents.
The mother's 1999 experience indicates the need for Sen. Sam Brownback's bill, the Prenatally Diagnosed Condition Awareness Act. Its purpose is "to increase the provision of scientifically sound information and support services to patients" who receive positive test diagnoses for Down syndrome, spina bifida and other conditions. Under this bill, parents could learn, for example, that there is a waiting list of families eager to adopt children with Down syndrome.
Michael Howard, leader of Britain's Conservative Party, promises that if his party wins the May 5 general election, he will have Parliament debate lowering to 20 weeks the legal time limit for abortion. According to a Sunday Telegraph poll, that change is favored by 53 percent of all voters and by a large majority of female and younger voters.
Such temperate adjustments of law are possible in a constitutional monarchy governed by a parliament. In our constitutional republic governed by judges, lawmakers have less latitude for making law. Brownback's bill is surely an unobjectionable exercise of that latitude. If it is not unobjectionable, let's identify the objectors, who probably favor the pernicious quest -- today's "respectable" eugenics -- for a disability-free society.