Prior to the 1930s, the English law on abortion had never been completely clarified and the only concrete law in place was the Infant Life Preservation Act in 1929 which made illegal the intent to destroy the life of a child prior to being born independent of its mother. More specifically, it created a new crime of killing a viable fetus (at that time fixed at 28 weeks) in all cases except when the woman’s life was at risk. However, it was not clear whether it would be legal to terminate for the same reason before 28 weeks. As a result, fifteen percent of maternal deaths were caused by illegal abortions; “A high percentage of maternal mortality is due to attempted abortion ….. We, as a House of Commons and as a nation, must face up to that fact today.”1 Consequently, during the 1930s, women’s groups and Members of Parliament (MPs) were deeply concerned about the great loss of life and damage to health resulting from unsafe, illegal abortion. The Conference of Co-operative Women was the first organization to pass a resolution (1934) calling for the legalization of abortion, resulting in The Abortion Law Reform Association being established in 1936. 2
This brings us to 1938; in April, a 14-year-old girl was assaulted in England by several troopers of the Royal Horse Guard. Her assault resulted in a pregnancy. The young girl was eventually referred to Dr. Alex Bourne, a distinguished gynecologist at the time. After a week of observation, Dr. Bourne curetted her in a public hospital. Shortly thereafter, he notified the police of his actions and invited them to take whatever action they see just. The attorney general ordered the operation unlawful and brought Dr. Bourne to trial. Dr. Bourne was charged with unlawfully using an instrument with intent to procure a miscarriage, charged under section 58 of the Offences against the Person Act 1861.
Dr. Bourne justified his act by placing emphasis on the distinguishment of the danger to life and danger to health – in this case, the danger to the fetus in relation to danger to the health of the mother (whether that be physical or mental). "I cannot draw a line between danger to life and danger to health," he said. "If we wait for danger to life the woman is past assistance."3 This case is unique in many ways, and it holds many characteristics that ultimately decided its verdict. The question of when in the span of a pregnancy it is illegal to terminate a fetus is considered illegal was unclear. The question of if it was justifiable to perform an abortion where there was a danger to the health of the mother was being weighed – while there may not be an immediate danger to her physical health, there certainly was to her mental health that could be carried the rest of her life. Finally, Dr. Bourne had the support of 3 experts in the medical field, and most importantly, Dr. Bourne took the case for humanitarian reasons and did not receive compensation.
Ultimately, the judge and jury came to the verdict of Not Guilty. They ruled there needs to be a distinction between the preservation of life and the preservation of health when determining the legality of abortion, further ruling this case was performed not for the purpose only to preserve life. The unique characteristics of this case, most importantly, the prominent danger to the mother’s mental health were very important to the groundbreaking verdict.4
Moreover, the famously labeled “Bourne Judgement” presented many advancements in terms of British abortion reform as well as some possible limitations that are discussed and critiqued in “A disastrous blow’: psychiatric risk, social indicators and medical authority in abortion reform in post-war Britain” a scholarly journal written by Sarah Crook in 2020. 5
For instance, Judge Macnaghten used a variety of non-medical language in his ruling such as, “‘If pregnancy is likely to make the woman a physical or mental wreck’ the judge concluded, ‘the jury is entitled to take the view that a doctor, who in the circumstances and led by his belief operates, is operating for the purpose of preserving the life of the mother’.6 Hailed by psychiatrist Montague Joyston-Bechal as a ‘typical example of the maturity of the English legal system’, the term ‘mental wreck’ was described as ‘picturesque rather than precise.’”7
This ambiguity can be viewed as either a strength or weakness; a strength in the sense that it allows the law to be more widely interpreted, yet a weakness as it offers very little guidance and therefore discourages a doctor to carry on with termination unless the wreck is extreme. “The term thus allowed for some clinical autonomy. Nonetheless, the phrase was a cause of consternation and was criticized for being ‘scarcely scientific’”8 Further, the Bourne Judgement was followed with a variety of interpretations where some doctors would perform abortions if the possibility of mental illness was apparent whereas others would only perform abortions if there was distinct evidence of mental illness already present – still allowing psychiatrists leeway when implicating mental health in abortion judgments. Psychiatrist James Arkle reflected in 1957 that Macnaghten’s phrase ‘mental wreck’ was important for psychiatrists in that it ‘makes it justifiable for him to recommend termination if he honestly believes that continuation of a pregnancy will make a woman a mental wreck. Lesser degrees of emotional upset are not enough, nor are social disturbances of any magnitude nor eugenic forebodings of any kind’.9
Overall, against this limited interpretation of Macnaghten’s statement, the Bourne Judgment can be seen as a prominent extension and expansion of the concept of risk in abortion cases and is a significant case to display developments in reproductive justice in the early 20th century.