Double negatives

The statue defining abortion throughout the British Isles is the Offences against the Person Act, 1861. It applies in the Republic of Ireland as that state “took over” pre-existing UK legislation when it was founded. The Abortion Act 1967 does not legalise abortion in England, Wales and Scotland; rather is provides a legal defence to a criminal charge. This Act does not apply to N Ireland.

The relevant parts of the 1861 Act are sections 58 and 59:

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 . . .
Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanor, and being convicted thereof shall be liable . . .

(The penalties available on conviction have changed since 1861.)

Both these sections are a bit hard to follow; I’ve added emphasis here:

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 . . .

Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanor, and being convicted thereof shall be liable . . .

The word I’m concerned with is “unlawfully”, repeated several times in these sections. To paraphrase the Act, “it shall be unlawful to do an unlawful thing”. There is no mention of “lawful”.

The law was tested in the case of R v. Bourne in 1938. Aleck Bourne was a gynaecologist who performed an abortion on a 14 year old girl who had been raped by several soldiers. The judge apparently said that an abortion could be lawful to prevent the mother becoming a “mental and physical wreck”. The jury acquitted Bourne.

I’ve not found it in my researches, but I was told by someone who was a contemporary that part of the defence was based on “lawful”; that the Act described what was “unlawful”, but implied by omission that there could be circumstances that were “lawful”.

This “double negative” does provide a very minimal tolerance of abortion in N Ireland, where the mother’s health is compromised; but there is no allowance,for example, for the legal abortion of foetuses with abnormalities incompatible with life. (There have been other legal judgements, this is the gist.) Obviously, the Bourne judgement does not apply to Ireland.