http://www.abortionreview.org/index.php/site/article/1323/
31 January 2013
Dr Carlos Morín, the Barcelona abortion doctor facing a possible sentence of 273 years in prison for practising almost a hundred abortions, has been absolved of all charges. Jennie Bristow discusses the circumstances and broader implications of his trial.
Another 10 defendants also faced heavy prison charges for illegal abortion, forgery, conspiracy and professional intrusion; however, the Barcelona court has ruled the abortions were carried out according to the law, and ‘with the consent and under the express request of the pregnant women’, the Spanish newspaper El País reports (1).
With this ruling, notes El País, ‘the Court of Barcelona has closed today an episode that marked a before and after in the Spanish legislation on abortion’. The Morín case attracted attention across Europe because, as the London Times reported back in 2011, ‘hundreds of women from Britain, Spain and other parts of Europe who were seeking late abortions were treated at the Ginemedex and TCB clinics in Barcelona, which were run by Dr Morín’. (2)
In Spain and beyond, the Morín case highlights some unsettling features of the legal and cultural situation surrounding abortion laws in Europe , and their implications for women and doctors. Above all the case shows how quickly, in a febrile cultural climate, countries can shift from being a haven for desperate women who could not be treated elsewhere in Europe into a hell for the doctors who helped them.
Context
Carlos Morín’s Ginemedex clinic in Barcelona has been the focus of attention by anti-abortion groups and media organisations for several years. In 2004, the British newspaper The Sunday Telegraph conducted an undercover investigation into the practice, by the abortion provider British Pregnancy Advisory Service (BPAS), of giving women the Ginemedex clinic’s telephone number when they were too late in the gestation of their pregnancies to be given an abortion under British law. A ‘supplementary report’ published by the Sunday Telegraph one month later ‘alleged that a general practitioner based in the South Birmingham Primary Care Trust had offered to facilitate the referral of a late abortion to the same clinic’. (3)
In Britain, the maximum ‘time limit’ for abortion (except in cases of fetal anomaly or to save the mother’s life and health) is 24 weeks; and pressure on the ‘late’ abortion services at that time meant that a woman presenting for an abortion at gestations over 21 weeks could not always obtain treatment in Britain. In such circumstances, staff at BPAS would sometimes pass on to these women the telephone number of the Ginemedex clinic, where abortions were conducted up to and beyond the 24-week British limit.
The Sunday Telegraph investigations caused significant fall-out in Britain . The Chief Medical Officer (CMO) conducted a thorough investigation of practices at BPAS, and in a report published in September 2005 (3) concluded that, while some of the advice given to the undercover journalist by staff at the BPAS helpline was unacceptable and that training issues should be addressed, BPAS had not broken any laws and continued to run a good service for women needing abortions at later gestations.
The CMO noted that ‘a woman is entitled to travel to another member state of the European Union for a termination of pregnancy’, and that information received from the Catalan Health Authority at the time of writing his report indicated that ‘there is no evidence of the Spanish clinic having acted outside of Spanish abortion law’.
The CMO’s most significant conclusion, for Britain , was that the circumstances leading to women being given the number of the Spanish clinic indicated broader inadequacies in the late abortion service in Britain , where the lack of provision meant that some women were denied access to the abortions to which they would have been legally entitled. The CMO called for an inquiry in the late abortion service in Britain – to date, this has not been acted upon.
Over in Spain , the campaign against Carlos Morín continued. In 2006, a Danish TV company conducted an undercover investigation of the clinic; this prompted another inspection by the health authorities, which found nothing illegal. The ‘ultra-Catholic’ group E-Christians then lodged a complaint about Morín at the Barcelona doctors’ association, which failed. In 2007, following a legal complaint against Morín by an employee, the clinic was searched, documents confiscated, and Morín arrested.
The puzzling thing to arise from this chronology of events is, what changed between 2006 – when the health authorities were apparently satisfied with Morín’s practices – and 2007, when he was arrested and his practice shut down? Again, it is fruitless to speculate on specific details that may emerge over the course of the case. But given broader developments in the Spanish abortion law from 2007, it is necessary to look at the changing cultural, political and legal context in which the Morín case has developed.
The Spanish abortion law, 2004-2007
As things stood in 2004, abortion was permitted under Spanish law for the following reasons:
• The pregnancy is the result of rape – up to 12 weeks gestation;
• The fetus, if carried to term, will suffer from severe physical or mental defects – up to 22 weeks;
• The abortion is necessary to avoid a grave danger to the life of or the physical or mental health of the pregnant woman – no time limit. (4)
In this respect, the Spanish law was similar to the British abortion law: with the exception of rape cases, abortion was not available on request, but it put the onus on the clinician to interpret it according to the woman’s circumstances. Under British law, abortion is legal up to 24 weeks’ gestation on the grounds that the pregnancy risks damage to a women’s mental or physical health; this is interpreted broadly, so that most of those women with an unwanted pregnancy who are motivated to ask for an abortion are considered to be at risk of psychological damage if the abortion is denied.
In a similar fashion, so the Spanish law came to be interpreted in its least restrictive form, and practiced outside of the national healthcare system. As the CMO’s report noted, in Spain in 2005 ‘Nearly all abortions are carried out in private clinics and 97% of abortions are carried out under the last ground shown above. In 2003, 79,800 abortions were carried out; 1.9% of these were at 21 weeks or more.’
The CMO’s report also cited statistics from the Barcelona newspaper La Vanguardia about the extent of late abortions performed to women from outside Spain: ‘The article also said in 2003, that out of all the patients seen within the 26 centres in Catalunya, 812 patients were foreign and only 14 of these were from the United Kingdom overall. 98.9% of the abortions performed on foreigners were of less than 22 weeks. In three cases it was in the 24th week and in five in the 26th week.’
This detail indicates a number of key points about the legal situation in 2004:
• Abortion in Spain was legal beyond the 24-week British time limit;
• Clinical practice at the Barcelona clinic was above board, in that it was inspected and approved by the Catalunyan health authorities;
• A small proportion of the abortions carried out in Spain were at ‘late’ gestations of only 21 weeks, and an even smaller proportion were carried out beyond the UK time limit of 24 weeks;
• A very small proportion of clients had come from the UK , and most of those were being treated at gestations that were legal in the UK – but presumably, they could not access the procedure here.
In other words, there was no scandal here waiting to be uncovered. The situation in Spain was legal and accepted by the health authorities; and this provided a haven for a small proportion of women travelling from countries where abortion was either illegal or inaccessible. What suddenly seems to have changed in 2007 was not the practice in Spain , but the cultural and political climate in which abortion was provided.
The Spanish abortion law, 2007-date
In 2010, the Sexual and Reproductive Health and Voluntary Termination of Pregnancy Act became law in Spain , replacing the previous legislation. This provides for abortion on request, funded by the state, up until the fourteenth week of gestation; but it is far more restrictive of abortions carried out later on. In this regard, the new Spanish law follows a pattern established in some other European countries, where there has been a ‘trade off’ between liberalisation in the first trimester of pregnancy – abortion on request – against greater restrictions on abortions at later gestations.
The new law seems to have been greeted by abortion providers as a mixed blessing. It was provoked by the bizarre situation in 2007, where a number of abortion clinics were raided by the Guardia Civil, medical records were seized, and clinic staff arrested or investigated. Following this, 40 clinics (over half of those in Spain ) suspended their work because they could no longer guarantee the provision of the service, or the safety of their staff. The situation revealed the fragility of an unclear law in circumstances that can quickly change, and the new abortion law has the merit of clarifying to women what they are allowed to seek, and to doctors what they are allowed to perform.
But at a conference of abortion and contraception providers held in Seville , Southern Spain , in autumn 2010, Eva Rodriguez of the abortion clinics’ association ACAI showed a thought-provoking film examining the new law, and also indicating its negative side. One contributor to the film drew attention to the arbitrariness of the 14-week time limit for abortion on request – why should women be accorded less capacity to decide in week 15, or 20 of their pregnancy? There remained difficulties with the financial and practical aspects of implementing the law, including concerns about regional differences. And of course, for women – in Spain and abroad – who need abortions after 14 weeks’ gestation – things have become that much harder. (5)
This situation indicates a shifting climate of expectation around abortion in Spain . As Ann Furedi, chief executive of BPAS, notes, ‘what has happened in Spain seems less to be a discovery of wrong-doing than a redefinition of wrong-doing’. And it is this notion of wrong-doing that needs to be discussed outside of the court, as a moral and political issue.
The demonisation of ‘late’ abortions
In recent years, and around the world, doctors conducting abortions in later gestations of pregnancy have found themselves in the news headlines, and the reaction is interesting to examine. The murder of the American Dr George Tiller in 2009 shocked those inside and outside the pro-choice movement – it is, thankfully, generally considered to be wrong to murder somebody for going about his lawful business, even if that lawful business is the controversial practice of second-trimester abortion. (6)
On the other hand, the arrest of the rogue Philadelphia doctor Kermit Gosnell in 2010 was shocking to those on both sides of the abortion debate, because of the illegality, brutality and clinically unsound nature of his practices. Those who argue for legal abortion beyond the first trimester do so precisely to protect women – who, when desperate for an abortion, will go to any lengths to obtain one – from charlatans such as these. (7)
As a society – even one like America, which is so polarised around the abortion debate – we set great store by what is legal and clinically safe medical practice, and what is not. This is why advocates of women’s right to abortion seek to make this practice legal, so the woman and her doctors can be safe. It is why the fact that most abortions happen in the first trimester does not mean that women do not need access to abortion beyond that time – as research has amply demonstrated (8), a small proportion of women will always need access to late abortion, and the ‘right to choose’ should not just mean ‘only three months to make your mind up’.
And this is also why abortion advocates and doctors will push for women to have access to safe care to whatever gestation they possibly can within the law. If abortion providers were interested in having an easy life, they a) probably wouldn’t work in abortion services in the first place, and b) would seek to provide women with the cheapest, easiest services they possibly could, even if this meant slamming the door in the face of those women presenting with more challenging conditions or gestations. But they don’t.
The fact is, those who work in abortion services are motivated by the care of women who come to them in difficult circumstances, and it is frustrating – at times heartbreaking – when the service that is provided cannot meet these women’s needs. For this reason, the British Government’s Department of Health should get on with the task its Chief Medical Office set the country back in 2005, which was never taken up: to review women’s access to abortions in later gestations, and find ways of improving the service. (3)
In Britain , abortion is legal on broad grounds up until the twenty-fourth week of pregnancy. But women are not always able to access abortions at this stage. The burden of ‘late abortion’ provision has been taken on by independent sector clinics, which cannot always accommodate women’s needs; also, delays in the care pathway can mean that by the time a woman is referred to an abortion provider, she is already too close to the gestational limit to be helped. There should be greater collaboration between independent providers and the NHS to ensure these women can be helped, and greater acceptance within the health service that women are entitled to the ‘late abortions’ that they need.
In Spain , Carlos Morín should have been able to expect fair treatment from the courts, and the open-minded support of his international colleagues in the pro-choice world. All those negotiating their way around sometimes unclear, and often changing, abortion laws in the current climate should be aware that those prepared to do the most to help women are also often the most likely to attract the ire of anti-abortion campaigners, media organisations, and politicians. In such cases, the first casualty is the woman who needs her abortion.
(1) Absuelto el doctor Morín en el caso de los abortos. El Pais, 31 January 2013
(2) Doctor charged with 101 illegal abortions. The Times ( London ), 16 September 2011
(3) An Investigation into the British Pregnancy Advisory Service (BPAS) Response to Requests for Late Abortions: A report by the Chief Medical Officer. Department of Health, September 2005
(4) Summarised by An Investigation into the British Pregnancy Advisory Service (BPAS) Response to Requests for Late Abortions: A report by the Chief Medical Officer. Department of Health, September 2005
(5) Achieving Excellence in Abortion Care’: Report on the ninth Congress of FIAPAC. Abortion Review, 25 October 2010
(6) Comment: One family’s tragedy, not a political indicator. By Jennie Bristow. Abortion Review, 2 June 2009
(7) Late abortion: the new clash in the Choice Wars. By Ann Furedi. spiked, 3 March 2011
(8) See for example Second-Trimester Abortions in England and Wales, by Roger Ingham, Ellie Lee, Steve Clements and Nicole Stone, University of Southampton 2007.
European Pro-Choice Network 