A Test Case at the Old Bailey

Monday, Aug. 01, 1938

TIME magazine

The most momentous test case in the history of the English law covering abortion packed London's grimy Old Bailey courtroom last week with skilled physicians from Harley and Wimpole Streets, earnest young medical students, smart socialites. Defendant in the case, charged with performing an abortion on a 14-year-old girl who was seven weeks with child, was a lean, greying, studious man, Dr. Aleck William Bourne, 52, top-flight gynecologist and obstetrician.

England's law permits operations only when necessary to save the life of the mother, and yacht-loving Dr. Bourne, who two years ago prepared a weighty report on abortions for the British Medical Association, has long wished to broaden the law so as to allow reputable surgeons to use their own discretion in terminating pregnancies in special cases. A large share of British medical opinion agreed that a test case should be made to bring the law before the courts. Two-and-a-half months ago the perfect test case appeared.

A wide-eyed, fresh-faced girl of 14, watching the changing of sentries at Whitehall, was invited by troopers of the Royal Horse Guards to see "the horse with the green tail" in their stables. Inside, two troopers raped her while others held her. Arrested and brought to trial month ago, two troopers were given sentences of four years each, a third sentenced to 22 months in prison. Learning that the girl was with child, Dr. Bourne decided that the age of the victim, whose name by agreement was left undisclosed last week, and the nature of the attack offered better than ordinary grounds for exhibiting the limitations of the law. Accordingly, with the consent of the girl's parents, he performed the operation seven weeks ago, then asked Scotland Yard to arrest him for his act. It did.

To a jury of two women, ten men, Obstetrician Bourne presented his case. The doctor argued: "The law of England cannot be so crazy and cruel. ... It cannot possibly be unlawful to avert the consequences of a felonious trespass on a child. In my opinion as an obstetric surgeon it may have been dangerous for a girl of her age to bear a child. Ninety-nine per cent of my colleagues would be agreeable to an operation such as I performed." Many of Britain's best medical men, including old Baron Horder, Physician in Ordinary to the King, trooped to the stand to support him. Said Lord Horder: "As far as I can judge, the facts would have led me to the same conclusion as Dr. Bourne."

The jury retired for a decision. In 40 minutes it was back in the box. The verdict: Acquittal.