Professor Stephen Vasciannie
The following excerpt is taken from the Fourth William Dennis Memorial Lecture given by Professor Stephen Vasciannie in 2006 under the title "Abortion in Jamaican and International Law".
WHAT DOES Jamaican law actually say about abortion? Generally, when we wish to ascertain the Jamaican law on any point, we should consider: (a) the constitution, (b) legislation, and (c) the common law, in the form of decisions by judges.
The constitution contains no express statement on abortion but, on one view, Section 14, pertaining to the right to life, may be relevant. Section 14 stipulates in part that:
"No person shall intentionally be deprived of his life save in execution of the sentence of a court in respect of a criminal offence of which he has been convicted.
"Therefore, as a matter of constitutional law, we are all assured the right to life: the question that arises from this, for the present purposes, is whether the term "person" legally includes the foetus, for if it does, then the Jamaican Constitution would prohibit any law that seeks to allow abortion. This question has not been tested in the context of Jamaican law, so there is no directly binding precedent on whether the Jamaican Constitution prohibits laws that may allow abortion in some circumstances."
Legislation
The most relevant piece of legislation on abortion in Jamaica is the Offences against the Person Act. Section 72 of the act indicates:
"Every woman, being with child, who with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent; and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her, or cause to be taken by her, any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and, being convicted thereof, shall be liable to be imprisoned for life, with or without hard labour."
Thus, Section 72 contemplates life imprisonment both for the woman who "unlawfully"takes action to procure her own miscarriage and for persons who "unlawfully" procure a miscarriage. Section 73 indicates further that it shall be a misdemeanour "unlawfully" to supply or procure any implement "knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman."
On first reading, the scheme in sections 72 and 73 appears comprehensive, and its meaning may easily be stated. Section 72 imposes life imprisonment on any woman who commits or tries to commit an abortion, and imposes the same punishment on any person who performs, or attempts to perform, an abortion. Section 73, on this preliminary reading, applies to anyone who procures any instrument to be used for an abortion. It also appears to make no allowances for exceptional circumstances. No exception is expressly contemplated for abortion in instances of rape or incest; neither do sections 72 and 73 suggest that abortions may be permitted in instances of grave foetal abnormality.
Sections 72 and 73 should not, however, be read in isolation, and there are two significant ways in which a contextual reading may affect the meaning to be ascribed to these provisions. First, there is the issue of life imprisonment. One rather suspects that even some people who adhere to a strict anti-abortion viewpoint might find the punishment of life-imprisonment somewhat draconian, especially if this is to be applied in all cases.
On this point, however, reference should be made to Section 44 of Jamaica's Interpretation Act. Section 44 indicates that where legislation provides for a sentence to any term of imprisonment, it shall be implied that this term of imprisonment is the maximum term. Thus, with reference to the Interpretation Act, it is fair to presume that section 72, which imposes life imprisonment, really seeks to impose a maximum of life imprisonment, with the matter of a lower sentence being left to judicial discretion. This is a matter of some importance if you are a putative mother or a doctor up for sentencing.
Lawful Abortions?
Secondly, both sections 72 and 73 repeatedly rely upon the use of the term "unlawful" in setting out the prohibition on abortion. So, for example, a woman with child is subject to punishment if she "unlawfully" administers a poison, or if she "unlawfully" uses an instrument; and similarly, the doctor will encounter the prospect of a sentence if he or she "unlawfully" procures a miscarriage. This emphasis on unlawful activities prompts the question whether there are any lawful ways of conducting the activities in question.
Reliance on the term "unlawfully" in sections 72 and 73 of the Offences against the Person Act has been the subject of judicial scrutiny. In the case of R v Bourne ((1939) 1 KB 687), Macnaghten J., sitting at first instance, relied on the presence of the term "unlawfully" in the English Offences against the Person Act, to find that the law did not, in 1939, prohibit abortion in all circumstances.
Section 58 of the English Offences against the Person Act stated, verbatim, the formulation now in Section 72 of the Jamaican act. Reading this provision, Macnaghten J. noted that the word "unlawfully" is not a meaningless word", and found that there were unlawful and lawful forms of abortion. For Macnaghten J., the abortion committed in R v. Bourne was lawful, and so, the defendant was acquitted.
If we rely on Macnaghten J.'s approach, one question concerns the precise manner in which we should delineate unlawful from lawful abortions for the purposes of Jamaican law. In Bourne, Macnaghten J. answered this question by reference to the Infant Life (Preservation) Act of 1929, which was then in force in England. That act stated, inter alia, that a mother would not be liable for the death of an infant if she undertook actions that were necessary to preserve her life. Macnaghten J. noted this defence in the Infant Life (Preservation) Act, and concluded that abortion would be lawful if they were undertaken "in good faith for the purpose only of preserving the life of the mother".
Therefore, anyone taken to court in Jamaica for abortion, would be well-advised to rely on Bourne. The defendant could also draw at least some confidence from other first instance decisions in England that have relied on Bourne. For example, in R v Newton and Stungo ((1958) Crime. Law Review, p. 469), Ashworth J. opined that, for an abortion case, the use of an instrument to procure a miscarriage is "unlawful unless the use is made in good faith for the purpose of preserving the life or health of the woman." Here, we should also note that R v Newton and Stungo not only relied on Bourne, it may also have built on it; for, in R v. Newton and Stungo, Ashworth J. expressly mentioned that preserving the health of the mother, as well as her life, may justify an abortion in specific instances.
Significance
With reference to these cases, may we conclude that Jamaican law allows lawful abortions? And may we conclude that abortions will be lawful as long as they are necessary to preserve the life or health of the mother? Only the intrepid would answer these questions without reservation, for the approach drawing from Macnaghten's judgement in Bourne is pregnant with legal difficulties.
To begin with, Bourne and the other cases relying on it, are decisions taken at first instance. There is thus no authority at the level of the Court of Appeal in either England or Jamaica that expressly incorporates the reasoning in Bourne as part of decision. In short, only limited weight may be attached to Macnaghten J.'s reliance on the dichotomy between "lawful" and "unlawful". This conclusion is reinforced, to some extent, by an obiter dictum made at the highest level, by Lord Diplock in Royal College of Nursing of the United Kingdom v Department of Health and Social Security ((1981) 1 All ER 545), a decision of the House of Lords. In this case, Lord Diplock, writing some 40 years after Macnaghten's decision in R v Bourne, noted that:
"(Macnaghten J.'s summing up, directed as it was to the highly exceptional facts of the particular case, left plenty of loose ends and ample scope for clarification."
When a House of Lords judge goes out of his way to point out that a first instance judgement leaves "plenty of loose ends and ample scope for clarification", this is not entirely auspicious.
Macnaghten J.'s approach may also be unsustainable because, while attaching great significance to the lawful/unlawful dichotomy, it apparently pays so little attention to the meaning of other words. Macnaghten J. was prepared to find in the language of Section 58 of the English Offences against the Person Act something that simply was not there. It was by drawing on the language of another act - the Infant Life (Preservation) Act - that the learned judge was able to find that abortions to save the life of a mother were legally permitted. Macnaghten J.'s willingness to read non-existent words into Section 58 of the English Offences against the Person Act opens his interpretation to the charge of judicial legislation.
The approach also leaves several questions unanswered. For instance, if some abortions are lawful pursuant to the form of words in the Offences against the Person Act, who may perform these abortions, and up to what stage of pregnancy may these abortions be performed? And, by what authority could a judge read the terms of the English Infant Life (Preservation) Act into the interpretation of the Jamaican Offences against the Person Act?
Right thing
Finally, Bourne may not be followed entirely in Jamaica because it is distinguishable from many, and perhaps most, abortion cases. In Bourne, Dr Alex Bourne, a distinguished surgeon, performed an abortion on a girl under 15 years old, who had become pregnant after being raped. Macnaghten J. noted that Dr Bourne was "a man of the highest skill", and that he had "openly, in one of our great hospitals" performed the operation. Dr Bourne undertook the operation as an act of charity, took no payment and "unquestionably [believed] he was doing the right thing".
In his assessment, Macnaghten J. was clearly motivated by the desire to ensure that the victim would not become a "mental wreck, with all the disastrous consequences that would follow from that". This case cannot readily be placed on all fours with cases in which women seek abortions for pregnancies not brought about by rape.
Macnaghten J. was also influenced by the suggestion that the victim was not "feeble-minded" and did not belong "to the class described as 'the prostitute class,' a Dolores 'marked cross from the womb and perverse." Rather, the victim was "a normal, decent girl brought up in a normal, decent way". Macnaghten J.'s distinction between members of the prostitute class and decent girls is awkward; but, more importantly, if the suggestion is that only "normal", "decent" girls are entitled to have an abortion in some circumstances, this approach would be fundamentally flawed.
Overall, therefore, although R v. Bourne throws some doubt on how Sections 72 and 73 of the Jamaican Offences against the Person Act is to be interpreted, it should not be assumed that this case provides clear answers as to the state of the law on abortion in Jamaica. To be sure, some abortions are unlawful, and those will be subject to the sentencing scheme contemplated in the Offences against the Person Act. But, there is an uncertain category of lawful abortions. The decision in R v Bourne supports the idea that this uncertain category includes abortions conducted by qualified medical professionals to prevent the consequences of rape from being fulfilled.
