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Decriminalisation of Abortion

About The Author

Francesca Norris (Solicitor Outreach)

Francesca is a trainee solicitor at a leading national firm, having undertaken the GDL subsequent to graduating with a Combined Honours in Arts from Durham. Her primary areas of interest are human rights, public law, clinical negligence, and criminal law.

Nowadays, a woman deciding to terminate a pregnancy tends to be viewed as relatively commonplace and, increasingly, morally understandable. According to figures on the Family Planning Agency website, at least half of all pregnancies in Great Britain are unplanned, and at least one in five will culminate in the pregnant woman electing to have an abortion, although other studies suggest that the figure is as high as one in three.

Three-quarters of British people support a woman’s right to choose to have an abortion. Under the law in Great Britain (England, Wales and Scotland), the Abortion Act 1967 (“the 1967 Act”) as amended by the Human Fertilisation and Embryology Act 1990, renders abortion legal until the end of the 24th week of pregnancy, provided that the abortion is carried out by a registered medical practitioner and two doctors agree that having the abortion is likely to cause less harm to the woman’s physical or mental health than continuing with the pregnancy. S.1 of the 1967 Act provides that abortions may also be carried out after the 24th week of pregnancy in exceptional circumstances, for instance where there is a serious risk to the woman’s health or there is a substantial risk of the baby having a serious physical or mental disability if it is born.

In Great Britain, abortions are available both privately and on the NHS. There is no need for a woman to be referred by a doctor; although GPs can make referrals to local NHS services, it is also possible for a woman to contact a private abortion provider directly, and in some areas it is possible for a woman to refer herself for an NHS abortion without seeing a doctor first. In 2013, 185,331 women in England and Wales underwent the procedure, and across Europe around 30% of pregnancies were terminated.

However, the situation in the UK is more complex than it initially appears.  In Northern Ireland, where the 1967 Act is not in force, abortion remains illegal and unavailable subject to very limited exceptions. Abortion is a criminal offence punishable by life imprisonment under the laws of Northern Ireland, as discussed a previous Keep Calm Talk Law article concerning gender-selective abortions. Further, recent articles published in the Telegraph and the Guardian highlight that even in the remainder of the UK, the specific construction of the law means that to undergo an abortion remains technically a criminal offence in many situations. The 1967 Act does not legalise abortion, but provides limited exceptions to the general prohibition of abortion. If a woman’s reasons for wanting to terminate a pregnancy fall outside of these exceptions, for example, if the mother is simply not personally or financially ready to have a baby, she would technically be committing an offence contrary to criminal laws still in force. The black-letter law is therefore out of step with common practice and, increasingly, modern public opinion.

Abortion remains a divisive topic. Whilst organisations, such as Voice for Choice, call for the total decriminalisation of abortion, there are still those that argue that abortions should not be allowed. This article will examine the legal and ethical arguments on both sides, and look at the effect that decriminalisation of abortion might have in Great Britain.

Historical and Current Legal Situation in GB

The practice of abortion has been around for longer than the law that now governs it and the history of the legality of abortion is as turbulent and troublesome as the surrounding ethical debates. References to abortion in English law are recorded as early as the 13th century, following the thinking of the Christian church that abortion was permissible provided it occurred before the mother felt the foetus move, known as ‘quickening’. To terminate a pregnancy after this point was illegal, and carried varying sentences at different times in history.

The Malicious Shooting and Stabbing Act 1803, for example, more commonly known as the ‘Ellenborough Act’, allowed for a maximum sentence of death. In 1837, the Ellenborough Act was amended to remove the differentiation between abortion before and after quickening. As such, in 1837, a woman having an abortion in even the earliest stages of a pregnancy faced the possibility that choosing not to bring a new life into the world, for whatever reason, would also culminate in the end of her own. The concept of a woman’s “right to choose”, her right to have control over her own body and indeed her own life, was non-existent. Evidently a woman’s life was considered less important than that of a foetus in even the earliest, non-sentient stages of development.

This changed again in 1861, when the Offences Against the Person Act (“OAPA”) came into force, with s. 58 stating that:

Every woman, being with child, who, with intent to procure her own miscarriage… and whosoever, with the intent to procure the miscarriage of any woman… shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of a felony, and being convicted thereof shall be liable… to be kept in penal servitude for life.

59 OAPA 1861 criminalised the supply or procurement of any instrument or poison with the knowledge that such is to be used with the intent of aborting a pregnancy. This offence also carries a potential sentence of imprisonment.

The use of the present tense here is notable; as pointed out by the recent news articles referred to above, the OAPA 1861 is a valid legal statute that remains in force, and so applies to woman seeking terminations in the UK today. However the law has developed a set of amendments and conditions enabling abortion to be carried out in certain circumstances without carrying the risk of imprisonment.

Firstly, in 1929 the Infant Life Preservation Act (“the 1929 Act”) amended the law so that abortion was permitted if carried out by a medical practitioner ‘in good faith for the sole purpose of preserving the life of the mother’. Whilst on the one hand the 1929 Act demonstrated a significant development, on the other hand, the 1929 Act created the new criminal offence of child destruction: the killing of a viable foetus (referred to in s.1 of the 1929 Act as ‘a child capable of being born alive’) unless there was a threat to the mother’s life. At that time, a foetus was considered viable from 28 weeks into the pregnancy. The creation of the offence was aimed to prevent the killing of a child during its birth, as this is neither abortion nor homicide for the purposes of criminal law. Notably, the 1929 Act similarly remains in force today.

The 1929 Act left a considerable amount of confusion surrounding abortion laws. The OAPA 1861 deemed abortion illegal in all circumstances, whilst the 1929 Act created “loopholes” which allowed for it in defined situations. The Abortion Law Reform Association was formed in 1935 with the intention of pressing for the legalisation of abortion in some circumstances. The Association exists today as Abortion Rights, following the 2003 merger with the National Abortion Campaign. Despite gradually increasing support for their campaigns throughout the post-war years, the work of the Association did not come to fruition for over three decades with the passing of the 1967 Act.

In 1938, the case of R v Bourne raised the issue in a new light: an eminent gynaecologist, Dr Alec Bourne, performed an abortion on a 14-year-old girl who had been gang-raped by five soldiers and was charged with, and subsequently acquitted of, the offence of conducting an illegal abortion. In passing judgment, Macnaghten J commented that:

If the doctor is of the opinion, on reasonable grounds and with adequate knowledge, that the probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck, the jury are entitled to take the view that the doctor is operating for the purpose of preserving the life of the mother. 

As a consequence of this judgment, increasing numbers of abortions began to be performed in Britain as the "loophole" in the law invoking a woman’s mental or physical health began to be interpreted increasingly widely. However, Dr Bourne became so concerned about these consequences that he became a founding member of the Society for the Protection of Unborn Children.

In 1966, Sir David Steel MP introduced to parliament the Bill that would become the 1967 Act. He said that the aim of the Bill was to stamp out the backstreet abortions, but it is not the intention of the promoters of the Bill to leave a wide-open door for abortion on request’.

As demonstrated by the figures above, however, abortions are these days carried out with ever-increasing frequency, despite the amendments made by s. 37 of the Human Fertilisation and Embryology Act 1990, which brought the maximum time for a termination to be carried out down from 28 to 24 weeks in line with medical advances. In 98% of cases where a woman seeks an abortion in accordance with the legislation, two doctors will sign the required HSA1 form to say that continuance of the pregnancy would involve greater risk to the physical or mental health of the pregnant woman than would termination. This means that doctors will often have to profess to this even when a woman presents other valid reasons for wanting an abortion (a practice that many doctors performing terminations may feel uncomfortable with, but that they must adhere to if they wish to avoid being caught by and subject to prosecution under the OAPA 1861).

Ann Furedi of the British Pregnancy Advisory Service told the House of Commons in October 2014 that:

… [W]hen we discuss the 1967 Abortion Act we have to bear in mind that… that law wasn’t framed in the context of women’s rights…the legislation has remained because we have worked to work around it. 

Meanwhile, there are many who believe that the numbers of abortions being carried out are too high, and that greater limits should be imposed, or even that abortion should be once again outlawed completely. Organisations such as the Society for the Protection of Unborn Children campaign against the practice to ‘defend and promote the existence and value of human life from the moment of conception.’ To such arguments, David Steel, writing in The Guardian in 2004, responded that:

… [T]he so-called “pro-life” (we are all pro-life) campaigners like to pretend that abortion in Britain was invented in 1967 with the passing of the Abortion Act. The only difference is that the numbers are now known, whereas before they were not, and crucially the procedure is both legal and safe.

Indeed, the labels of ‘pro-choice’ and ‘pro-life’ are unusual when viewed in the context of the effects of abortion being totally illegal. It must not be forgotten that abortions were being carried out before legislation allowed for it, and many in circumstances that created dangers for the women involved. Prior to the enactment of the 1967 Act, ‘septic and incomplete abortion[s]' resulted in the death of up to fifty women per year, irrespective of unrecorded fatalities. Some estimates say that around 35,000 women were being treated annually following botched abortions, and unsafe abortions were the leading cause of avoidable maternal death. These “backstreet abortions” were no small issue. The so-called ‘pro-life’ movement should remember that prior to the 1967 Act, thousands of vulnerable women were killed and many more left grievously injured following their alienation from adequate medical assistance. 

The Current Legal Situation in Northern Ireland

The situation in Northern Ireland, where religious principles have tended to continue to dictate legislation to a greater extent than in the rest of the UK, is very different. The 1967 Act is not in force, and therefore the law surrounding abortion remains governed by the OAPA 1861, and the Criminal Justice Act (Northern Ireland) 1945, s.25 of which enshrines the offence of child destruction in law in the same way as the 1929 Act did (see above). The only exceptions to the criminalisation of abortion are if it is necessary to save the mother’s life or if there is a risk of permanent and serious damage to her mental or physical health. Northern Ireland’s health minister Jim Wells has stated that he ‘will not accept’ the extension of the 1967 Act to Northern Ireland, professing that ‘… there are 91,000 people in Northern Ireland who are alive today, who wouldn’t be if we had the ’67 Act here’.

Official figures from 2013 show that at least 40 terminations are carried out legally in Northern Ireland each year on the grounds stated above. However, the number of Northern Irish women seeking and having terminations is much higher; over 1000 women who do not fall under the NI exceptions travel to the rest of the UK in order to have an abortion each year. These figures cast doubt on Mr Wells’ claims and again demonstrate that when women are unable to legally seek abortion at home, they are often forced to look elsewhere. 

Abortion Law Around the World

Unsurprisingly, abortion presents legal and ethical difficulties for everyone. There are graduating levels of legality, from abortion being legal on request, as in large swathes of the USA and Europe, through abortion being illegal with a variety of exceptions, as in the UK, to abortion being illegal in all circumstances with no exceptions, as is the case in 7 countries in Europe and Latin America. It may come as a surprise to note that the UK law is closer to that in countries generally considered in many ways more conservative, such as India and Zambia, than that in other Western countries including the USA, Canada, Australia and much of Europe. According to the World Health Organisation (“the WHO”), almost 2/3 of the world’s women live in countries where abortion may be obtained on demand for personal or socio-economic reasons.

However, the WHO points out similar abortion rates between countries where the practice is legal and those where it is illegal. Whilst the unavailability of contraception in countries where abortions are illegal contributes to this statistic, it additionally supports the argument that abortion occurs with regularity regardless of its legal status. A woman’s deliberation in deciding to proceed with an abortion involves more pressing issues than following the law. There needs to be an awareness and respect for a woman’s autonomy. 

Conclusion

Abortion is not a new practice. Abortion was not, as David Steel pointed out, invented when abortion was legalised in the UK in 1967. Terminations are performed in broadly similar numbers around the world almost regardless of the respective laws. Whilst numbers of women seeking abortions have increased in the UK since the law came into force, this increase must be viewed in the context of the changing role of women within society. Lifestyle and socio-economic considerations that may not have been so pertinent 45 years ago are likely to be relevant to a wider, growing demographic as emphasis is placed on women having careers and roles outside of the home.

Decriminalising abortion completely is unlikely to have a great impact on the numbers of abortions being performed. What it would do is enable medical practitioners to record the true reasons that women are seeking terminations, and possibly help to remove negative stigmas to the process for those women who feel, for whatever reason, that it is the best option for them. Obviously, there must be limits to at what point in a pregnancy an abortion can be performed, and ethical debates surrounding when this should be are likely to come to the fore time and again. However at the core of the issue is a woman’s right to autonomy over her own body, her own life, and indeed her own mind. The right for a woman to make a difficult choice legally, safely and in the way that she believes will be best for herself and any potential child must be protected.

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Tagged: Criminal Law, Human Rights, Medical Law & Ethics

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