Decriminalising abortion

An activist takes part in the annual National Women’s March in Washington DC on 22 January 2023, marking the 50th anniversary of the 1973 US Supreme Court Roe v Wade decision, which was struck down by the court on 24 June 2022, ending five decades of constitutional protections. © Probal Rashid/ZUMA Press Wire/Shutterstock

In England and Wales the number of women investigated under archaic laws is rising exponentially. Is it time to decriminalise abortion? Anthony Metzer KC, Dr Charlotte Proudman, Honza Červenka and Shannon Moore investigate

In June 2022, when the US Supreme Court overturned its own precedent in Roe v Wade, the reaction of many lawyers in this country was: ‘It’s terrible, but it could never happen here.’ They were right, but not for the reasons they thought. Contrary to widely held belief, abortion is still a criminal offence in England and Wales. The Abortion Act 1967 did not completely decriminalise it: abortion is legal only if medical professionals say so. Further, the Abortion Act provides a defence for the medical profession (by providing circumstances in which they are allowed to deliver abortion healthcare), not for the woman who undergoes it.

In England and Wales, as in Scotland, for an abortion to be permitted, two doctors must agree that pregnancy poses a risk of ‘grave permanent injury to the physical or mental health’ of the woman or other stringent reason. Northern Ireland decriminalised abortion in 2019 within 12 weeks of conception and for any reason but access to abortion services remains limited.

The 1967 Act had deep roots. In 1939, an inter-Departmental Committee reported that the laws should be amended to make it ‘unmistakably clear that a medical practitioner is acting legally when, in good faith, he procures the abortion of a pregnant woman in circumstances which satisfy him that continuance of the pregnancy is likely to endanger her life or seriously to impair her health’, with the ‘additional provision that he should act with the sanction of a second medical colleague.’ As the wording suggests, this was a world where ‘doctors’ meant ‘men’, and little had changed by 1967.

Even after the Abortion Act, Britain is not particularly liberal in its regulation of abortion. There are 75 countries with fewer restrictions on access to abortion, including New Zealand, South Africa, Argentina, Japan, even Russia. Even after the overturning of Roe v Wade, many states in the US are less restrictive. In Europe alone, 39 countries allow abortion on request. Only three small countries, Andorra, Malta and San Marino, prohibit abortion under all circumstances.

In the case of England and Wales, access to abortion has been justified on broad social grounds, predominantly the risk of permanent injury to the physical or mental health of the woman, and it is broadly accepted. Most doctors will agree to sanction an abortion as a matter of course, and for all practical purposes, abortion is widely available. However, as a purely bureaucratic exercise, the simplest way for doctors to complete the necessary paperwork is to certify a risk of mental health injury. This may make abortion available in practice, but by the letter of the law, any woman wishing to have an abortion must first ask two doctors to label her as having mental health challenges or illness. In reality, doctors signing off on abortions are rarely equipped to assess the mental health of those who seek them. If doctors took their responsibilities literally, many or most abortions would not be authorised. Everyone turns a blind eye to this condescending fiction. It is fair neither to the doctors nor those wishing to terminate their pregnancies.

A more pressing problem is the legal threat to those who get abortions outside this dishonest if humane regime. While technically there are no foetal homicide laws in England and Wales, a number of offences have been used as proxies to criminalise abortions. The first of these, procuring an illegal miscarriage, falls under the Offences against the Person Act 1861 (the ‘1861 Act’). This law criminalises ending a pregnancy at any point, even pre-viability, and makes any woman who does so liable to a lifetime’s imprisonment (the campaign group We Trust Women is fighting to repeal this law). The 1861 Act also introduced life imprisonment for procuring your own abortion. Indeed, there have been convictions for this offence in recent years and one woman recently faced trial for it in England. The case was dropped in December after the ‘flabbergasted’ judge said prosecutors had been ‘misconceived’ in their pursuit of the case and that the trial would have been a waste of court time. Another woman alleged that she was in an abusive relationship and was coerced to take illegal abortion tablets only to find herself imprisoned for years – in 2019. A man and a woman in their 20s face trial in the coming months in Gloucestershire over accusations of procuring a poison to cause a miscarriage, concealing the birth of a child and intending to pervert the course of justice by disposing of a baby’s body.*

These laws are often seen as an eccentricity of our legal system. Few realise that they are still being used to criminalise women. According to the Office of National Statistics, there were nine recorded offences of ‘Procuring illegal abortion’ between April 2021 and March 2022 (the previous peak for the offence was in 2003/04, when there were also nine recorded cases) and 24 recorded offences for the ‘intentional destruction of viable unborn child’ over the same period, the highest number since 2017 (Crime in England and Wales, Table A4, ONS Appendix Tables). Yes, the numbers remain relatively small, but the consequences are titanic: both offences of ‘child destruction’ and ‘procuring an abortion’ carry a maximum life sentence. Injustice should not become a priority only when it affects the many.

While recorded offences remain uncommon, the number of women investigated under these archaic laws is rising exponentially – from two or three investigations in 2012 to around 40 currently ongoing. The reason for this rise – and one that is unlikely to go away – is the arrival of ‘pills by post’ services. Abortion in the UK is generally administered through two drugs (mifepristone and misoprostol) taken 24 to 48 hours apart, and the 1967 Abortion Act has historically been interpreted as requiring these drugs to be taken at licensed premises. In March 2020, as the country entered a period of lockdown, the Department of Health and Social Care issued a temporary approval of at-home access to legal abortion up to ten weeks’ gestation. In England and Wales, these temporary measures on early medical abortion have since been made permanent (in Scotland the measures remain in place for the time being while the Scottish government conducts an evaluation of their effectiveness and safety).

If a woman takes abortion pills later than ten weeks, or without a doctor’s prescription after getting them online, she is technically breaking the abortion laws and is a criminal.

For young women, this risk is not abstract. As Hannah Al-Othman reported in a Sunday Times cover story (August 2022), British women are now being jailed for breaking laws they knew nothing about.** With the rise of telemedicine and the turn to online abortion providers – particularly among those in coercive or abusive relationships, or those who find it difficult to attend two sessions at a clinic due to work or childcare responsibilities – the threat of jail is growing.

With the criminalisation of women for ‘misusing’ abortion medicine, the archaic and patriarchal idea that women cannot be trusted rears its head again. Much as we saw with the restrictions placed on the sale of emergency contraception – justified on the basis that women would not be able to take the medicine effectively or responsibly – the law seems to take a very odd view of how women will behave when faced with the need to self-administer medicine. Pills by post is an innovation that has improved the accessibility of abortion, but at the same time it has opened new suspicions and criminalised women who had no idea they were breaking the law.

To protect women against unintentionally committing a crime with very serious consequences, providers of pills by post now issue a warning stating that the medication cannot be stored or used other than for the specific purpose for which it was prescribed. In our view, there is a simpler solution: Decriminalise abortion now. There is already a widespread consensus from medical bodies that abortion should be decriminalised*** as doing so would remove the absurdity of a system of medicine that allows women to make a choice only when it is ‘permitted’ by someone else, and where the suspicion of women is still so entrenched that people do not see the restriction as objectionable.

The case was most clearly stated in a recent letter sent to Max Hill KC, Director of Public Prosecutions, signed by 66 organisations, including the Faculty for Reproductive and Sexual Health, which sets clinical standards for the NHS:

‘We believe that, in 2022, it is never in the public interest to charge women who end their own pregnancy, and that no woman should face investigation or prosecution for ending a pregnancy or experiencing unexpected or unexplained pregnancy loss.’

The answer is simple: Decriminalise abortion now.