The judge differentiated the instant case from other situations and cases in which abortions are carried out by non medical personnel for a fee leading to deaths of women in England. The judge used the example of a case which had come before the court in which a woman without any medical qualifications performed an abortion and was paid her fee despite the fact that the woman was left dead on the floor. The judge in this case, instead noted that Mr Bourne was a surgeon of the highest skill in one of the best hospitals in the country. The Court directed that in determining the legality of the abortion it was important to remember that the abortion was carried out without fee or reward and that he carried it out unquestionably believing that he was doing the right thing, in the performance of his duty as a member of a profession devoted to the alleviation of human suffering.
The judge found, given the circumstances of the case, the jury had to determine whether the Crown has proved beyond reasonable doubt that the act was not done in good faith for the purpose only of preserving the life of the girl. Considering the wording of s 58 and he found that the word ´unlawful´ implied that there were circumstances in which abortions could be carried out lawfully when done so in good faith.
The judge went on to state that ´preserving the life of the mother´ must be interpreted reasonably and that it is wider than instant death. He used the example of where a woman would not be able to deliver a child, without reasonable expectation of the death, and held that in those circumstances it is the duty of the doctor to perform the operation. The judge stated that in such a case it is obvious that the sooner the operation is performed the better. The law is not that the doctor has got to wait until the unfortunate woman is in peril of immediate death and then at the last moment snatch her from the jaws of death. He is not only entitled, but it is his duty, to perform the operation with a view to saving her life.
The judge also highlighted the effects of pregnancy on young girls, stating that it is common sense that it must be undesirable that a girl should go through the state of pregnancy, and, finally, of labour, when she is of tender years. The Court also found that the effect of rape on a 14 year old girl must be considered. The judge stated that while the jury were free to assess the facts and the expert testimony on the effects of rape on children, no doubt the jury would find that it is only common sense that a girl who for 9 months has to carry in her body the reminder of the dreadful scene and then go through the pangs of childbirth must suffer great mental anguish. The judge stated that human life is sacred and the legal of protection of life extends to the unborn child in the womb, however ´(t)he unborn child in the womb must not be destroyed unless the destruction of that child is for the purpose of preserving the yet more precious life of the mother.´