2. Wouldn't the solution you propose, making abortion legal, result in a great increase in the number of abortions?

This is a common claim and a reasonable concern. The short answer is this is unlikely. Who is likely to say, 'Now that abortions are legal, let me get pregnant so I can have one!'

We must distinguish between the number of abortions and the number of reported abortions. While abortion is under the criminal law there is no record of the number of abortions being performed. Once abortion is shifted to civil law, countries typically require physicians to report on them. The net result is a huge apparent increase - from virtually no records to large numbers. But these changes in records should not be confused with changes in the reality. The number of abortions being done today is a large, there is simply no record of them.
Indeed, there is every reason to believe that one benefit of a civil law under which abortion services are regulated would be prescribed standards for counselling, leading to the prospect of a higher uptake of contraceptives and therefore fewer abortions.
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3. What is the experience of countries that legalize abortion?

Of course, this varies widely from one to another. Where countries pass the law and do little or nothing more, for example in India, there is little benefit. In others like The Netherlands, Italy, Belgium, and Tunisia there are significant reductions in the number of abortions. With one of the more liberal abortion laws in the world, the Netherlands has the lowest abortion rate in the world. Italy also has a very liberal law: today, the number of abortions in Italy is half of what they were in the 1960s when the law was introduced.
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For an even more dramatic appreciation of the impact of law on abortion, please see our chart on Romania.

4. But these services must be a huge new cost on the government.

That is another major misconception. We spend far more resources treating with complications of abortion than we would do if we provided a safe service. Day after day, about a third of the gynaecological beds in our public hospitals is occupied with women admitted with complications of abortion. This is a huge and unmeasured cost. The present situation is costing us more than we know and more than we would need to spend if the government were providing a service of legal, safe abortions. We estimate that the current cost of treating complications from unsafe abortions is in excess of $1.0 million per month -- yes, per month. (Data on Cost in Hospitals)

Barbados legalized abortion in 1983 and provided a service through its Queen Elizabeth Hospital. By 1992, the tenth year of the law, the number of women admitted to QEH with complications of abortion had fallen by 53% and the number of cases of septic abortion had fallen by 70%. Women try to avoid the public hospitals at all cost. It is a place of last resort for abortion services. Women place a very high value on their privacy. Making abortion legal would reduce the present burden of unsafe abortion on beds in gynaecological wards and on the demand for operating theatres.
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5. You have still not told me why you would take on something so controversial.

Part of the reason that abortion is controversial is that we know so little about the situation. The awful silence that surrounds abortion is one of our great challenges. It is something we are never supposed to discuss. But there must be very few families, if any, who have not had an abortion or caused one in the last two generations. Apparently, we think that if we don't speak about it, it will disappear. We believe that until we come to terms with abortion, we will not be able to discuss any other aspect of our sexuality; we will not be able to address HIV/AIDS and we certainly won't appreciate the extent to which sexual relations are a critical factor in domestic violence. Abortion is not a marginal issue and it is not an isolated issue. It is a core reality that we need to face in order to address many other aspects of our behaviour.
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6. How do you explain the 'awful silence' of abortion?

That is very simple. The explanation is clearly the result of the enormous, intimidating power of our religious institutions. It is locked into our confusion of the law and morality. It is rooted in the social injustice and hypocrisy about the subject. The simple truth is that safe, medical abortion is very readily available for women who have the means to pay private practitioners. So for many, perhaps most members of our society, an unwanted pregnancy is not a problem: they already have access to safe services. Thus they have no need to make any demand about the need to change the law. The criminal law does not affect them. They are above it. The women who enter our public hospitals with complications day after day have limited resources. They have no voice. They have no political clout. They are silent victims of awful injustice. The law discriminates wretchedly and the voiceless poor are its quiet victims. Those who have voices are not hurt by the criminal law; and those who are hurt have no voice. Besides, our practice of active democracy - where groups actively participate in changing public policy - is very weak indeed. We vote and leave government to politicians. We seldom engage in making the rules. We practice silence.
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7. You said earlier that it is easy to fix the abortion problem. How can that be?

The criminal law is a major cause of the public health problem of abortion. The criminal law is a leading cause of maternal deaths. It is damaging and ruining women's sexual health. Our interpretation of the criminal law is the what makes it impossible for a woman with an unwanted pregnancy to obtain safe medical care in our hospitals. Our practice of the criminal law is what drives poor women to risk their lives with dangerous procedures. Their view of the criminal law is what discourages more medical practitioners from providing the services to treat women who want an abortion. It is the criminal law that causes the artificially high fees for terminations of pregnancy. It is the criminal law that drives desperate women to clandestine providers and creates the unsafe, unregulated, underground activities whose less fortunate, poor victims enter our public hospitals. Change the law and much of this underground will disappear. More doctors may provide the service. The switch from illegality to legality may reduce prices. And hospitals could provide terminations at a fraction of the costs they currently spend treating complications.

We have tried to portray how the current restrictive law makes the
problem worse and to describe the potential of a civil, regulatory law in two little diagrams. Please have a look at our schema.
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8. You place a lot of emphasis on the law making so much difference. After all women die from abortions. Isn't an abortion a complicated procedure?

Here we face another myth. An abortion is the most common surgical procedure in Trinidad and Tobago. No other surgical procedure even comes close. The vast majority of abortions, perhaps more than 85% occur in the first 12 weeks of pregnancy. At that stage, an abortion is 11-20 times safer than delivery at term under the similar medical care. Natural birth carries more risks to a woman's life and health than an early termination under medical supervision. The fact that we associate death and complications with abortion results from a failure to distinguish between safe medical abortion and unsafe, clandestine abortion. It is the latter that causes the complications that are admitted to our hospitals. We know nothing of the thousands of abortions that are done routinely and which yield no complications.
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9. What exactly is the law of abortion in Trinidad and Tobago anyway?

That is not as easy to answer as we might believe. We can say what the statute law is without doubt. It is from the Offences Against the Person Act, Chap. 11:08 at 56-57. Let me read it to you:

56. Every woman, being with child, who, with intent to procure her own
miscarriage, unlawfully administers to herself any poison or other noxious thing, or unlawfully uses any instrument or other means whatsoever with the like intent, and any person who, with intent to procure the miscarriage of any woman, whether she is or is not with child, unlawfully administers to her or causes to be taken by her any poison or other noxious thing, or unlawfully uses any instrument or other means whatsoever with the like intent, is liable to imprisonment for four years.

57. Any person who unlawfully supplies or procures any poison or supplies 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 is or is not with child, is liable to imprisonment for two years.
This is a strict law. Note that one can be guilty even if the woman is not pregnant. But the law clearly contemplates conditions in which an abortion is legal. This is clear from the repeated use of the term "unlawfully." However, the conditions of lawful abortion are not stated. The minimal presumption is that an abortion is not unlawful if the procedure is undertaken in good faith, by a medical doctor where the procedure is deemed necessary to save the life of the mother.
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10. So is this the state of the law of abortion in Trinidad and Tobago?

No, it's not that simple. We have to distinguish between the law on the books and the law from the courts. And we should also consider the social practice - the real law.

While we were still a colony of the United Kingdom, there was a very interesting decision that is strongly believed to apply to us. In 1938, four guardsmen raped a teenager. Some time later her parents took her to a public hospital, St, Mary's at Paddington. A prominent senior surgeon, Mr. Alec Bourne, examined her and satisfied himself that her pregnancy was no danger to her life. He believed that unless her life was in danger the law did not permit him to perform an abortion. However, he felt that she would become a "mental wreck" if she were left to continue the pregnancy. He therefore felt he had a duty to perform the abortion she requested. He did. At that time, the Birkett Commission was inquiring into how the law of abortion was working. Wanting the Commission to appreciate the compelling conditions that doctors faced, Mr. Bourne wrote to the Attorney General informing him of the abortion he had performed. For his goodness, he was promptly arrested. In court, his defence was that he could not distinguish between the woman's life and her health. In the case, R v. Bourne, judge McNaughton decided in Bourne's favour and established the rule of "Necessity." This case has been applied in a number of Commonwealth jurisdictions. While it has not been tested here, in consultation with Caribbean Attorneys General, legal experts (Cook and Dickens) have reported the view expressed by the region's AGs that R. v. Bourne is the state of the law in the Commonwealth Caribbean.
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11. What would this mean in practice?

The implication is that registered medical practitioners, acting in good faith, can legally perform abortions to save the life, physical health and mental health of women. Since WHO defines "health" to include both physical and mental health, that should be the case here. Doctors can lawfully perform abortions to preserve the quality of a woman's life.
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12. Is the situation you describe, that following R. v. Bourne, abortion is legal for protecting a woman's life, her physical and mental health, true for in all Commonwealth Caribbean countries?

No, it is not. Since Cook and Dickens' visit in the late 1970s some countries have introduced laws in advance of this situation and some have statutory provisions that are more restrictive. They fall into five different categories.

First, Guyana and Barbados have gone beyond this and modified the old law. In those countries abortion is regulated by civil law. Women can have legal abortions for a wide variety of reasons.

Second other countries in advance of the old law are Belize, Bermuda and St. Vincent which have made provision for lawful abortion on social and economic grounds.

Third, there are a number of countries where the law is on par with Bourne, meaning life, physical and mental health. This group includes BVI, Jamaica, Monsterrat, St Kitts and Nevis, Turks and Caicos Islands and Trinidad and Tobago.

Fourth, The Bahamas, Grenada and St. Lucia only permit legal abortion to save the woman's life and physical health.

And fifth, some countries seem to be all the way back to the law before Bourne and so only permit lawful abortion to save the woman's life - Antigua and Barbuda, Cayman Islands and Dominica.
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13. This seems very complicated.

Yes and no. The big lesson here is that asking whether abortion is legal or not masks the real issue. This is typically not a black and white issue. There is a range of conditions under which abortion may be legal or illegal. That is what we have just seen. These include: to save the life of the mother, to preserve the physical health of the mother, to preserve the mental health of the mother, where pregnancy results from rape or incest, to avoid severe foetal deformities, to avoid the risk of transmitting a fatal disease to the child, in the event of contraceptive failure, for social and economic considerations, or on the woman's request. Caribbean laws cover the full spectrum from the more conservative to the more liberal.
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Our map of Caribbean abortion laws provides a simple picture of the state of the law in each country. It is very easy to follow.

 

14. Does the law really matter? Why not just leave well enough alone?

Yes, the law does matter. It matters to all those poor women who cannot have access to safe services because of the restrictive law. It matters to all women who are treated with disdain when they seek medical care. It matters to all women who are abused in the process of receiving treatment for abortion. The truth is that the old law is not enforced. It cannot be enforced. The law is not an impediment for many levels in society that ignore it with impunity; but it is a source of great harm to many poor women and many young women. The absence of regulation also means that women are at the mercy of providers. There is no regulation and so no standards of care. Further, there are no guidelines for counselling. The criminal law is not a suitable source of regulation for professional practice. What we need is a civil law and, ideally, one monitored by a vibrant advisory body of interested civilians. The fact is that things are not "well." Not at all. We have conveniently learned to look the other way - "see not evil, hear no evil, speak no evil." Well, it's time to open our eyes, look, speak, and above all, listen. We need a dialogue about changing the existing harmful law. This is the social injustice of the real law - the law in practice.
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15. Why should any government be interested in changing the law of abortion?

For several reasons. First, because of the government holds the responsibility for public health. The existing law is harmful to women's health. The law is a major cause of maternal death and complications. That can be established beyond doubt: every year more than 3,000 women enter our hospitals as a result of complications of unsafe, clandestine abortions. And this may just be the tip of the iceberg. Changing the law can make a dramatic difference in improving our maternal health in the short term.

Second, our current restrictive, criminal law of abortion is discriminatory. It is a law that only affects women's access to health care.

Third, in day-to-day practice the law is unjust as it only affects poor women's access to care. The law is totally irrelevant to women of means who purchase services from private physicians.

Fourth, in the context of the health system, the law is profoundly irrational since it wastes scarce health resources. It is the criminal law that forces poor women to seek unsafe, clandestine abortions. Then the complications result in huge admissions to our hospitals consuming bed space, staff time, diagnostic tests, drugs, anaesthesia, IV fluids, blood, and operating theatre time. Providing access to safe abortion services would require only a small fraction of the skill and resources currently expended in treating complications. Remove the law and government would save money and improve maternal health.
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16. So what are the most important things for me to remember?

Three things:

" That this is a dialogue about the law of abortion. No- one is promoting abortion. Abortions are happening even as you read.

" That the current restrictive criminal law of abortion is harmful. That it makes things worse. And it is unenforceable.

" That you always make a difference - whether passively or actively.

Enforcement would involve placing more than 3,000 women and their providers in prison every year. That is totally unthinkable. And it would completely ignore the men who helped to make them pregnant!

The current law is a major cause of the huge public health problem of maternal death and maternal complications. Merely removing the law will improve maternal health. It prevents almost no abortions so it saves no foetal lives. It is not just ineffective - it is very harmful. It is ineffective in its purpose and harmful in its consequence. It is a law that no one cares to obey and no one dares to enforce. It discriminates against women and particularly against poor women. And most important, that you can help to change this situation. That choice is yours.
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