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The Abortion Act 1967: Out of Date and Out of Time?

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About The Author

Ed Harris (Regular Writer)

Ed graduated from Swansea University with a first class LLB, and is soon to begin an LLM in Law and Economics at Utrecht University. His main areas of interest are within corporate finance and developments in the business world. Away from the law, Ed is a keen footballer and also enjoys racket sports.

©CDC/ Jim Gathany

The 1967 Abortion Act was a half-way house. It handed the abortion decision to the medical profession. The next stage is to hand this very personal decision to the woman herself.

Madeline Simms

Abortion remains a highly controversial topic within modern society. Despite figures showing one in three women will have one within their lifetimes, English law technically prohibits abortion, subject to a prescribed set of circumstances in which it is permitted.

This has long been the case. The influence of militant minorities – who have often had the loudest voices in abortion debates – has resulted in successive governments avoiding the reform of abortion law: it was last updated in 1968 via the Abortion Act 1967 (AA 1967). Though this statute pioneered liberalisation of this issue, and was of undoubted benefit to British women, it has been fiercely criticised by commentators and medical bodies alike.

Indeed, in many respects, the AA 1967 enshrines outdated attitudes, is unduly restrictive – such that it potentially contravenes Article 8 of the European Convention of Human Rights (ECHR) – and does not accord with modern medical reality, to the extent that it puts women’s health at risk. This article therefore argues that it is time to update and modernise this moralising and anachronistic legislation, contending that inspiration should be taken from reforms in Victoria, Australia; we should abandon the current halfway house and shift power from doctors to women themselves.

The Current Law

England and Wales is ranked as the second most liberal jurisdiction on the world map of abortion laws, despite the fact that its statutory framework is the oldest piece of legislation in the jurisdiction governing any specific medical procedure. The framework consists of three separate pieces of legislation. The oldest – the Offences Against the Person Act 1861 (OAPA 1861) – also applies in Scotland and Northern Ireland, and creates various offences relevant to the prosecution of abortions. Meanwhile, the Infant Life Preservation Act 1929 (ILPA 1929) concerns the destruction of foetal life, and the AA 1967 – introducing an important change – regulates abortion directly.

Prior to the AA 1967, abortions took place in the tens of thousands, the majority being informal or “backstreet” abortions.  At this time, abortion was the leading cause of maternal deaths. Social inequality was also rife: the poor could only afford abortions in life-threatening conditions, while rich women could  access abortions performed under sterile conditions and using anaesthetic – these were carried out by doctors hoping to evade prosecution by relying on the common law defence of necessity, recognised in R v Bourne [1939] 1 KB 687. 

The UK pioneered the liberalisation of abortion law in Western Europe with the AA 1967. This provided a pragmatic response to the unseemly clandestine abortions of the time and came into effect in April 1968. It outlines detailed therapeutic exceptions for the offences that affected abortion in the OAPA 1861, with Section 1(1)(a)-(d) of the AA 1967 holding that:

[A] person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith:

  1. that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family children of her family; or
  2. that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or
  3. that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or
  4. that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.

The overwhelming majority of legal terminations are performed on the basis of Section 1(1)(a) of the AA 1967: figures show that 98% of abortions in England and Wales relied thereon in 2014. Such statistics underpin  the ‘statistical argument’ for reform, which argues that because the grounds for termination under Section 1(1)(a) of the AA 1967 will almost always be fulfilled – on account of the fact that modern abortion procedures are considerably safer for a woman than carrying a pregnancy to term – the prohibition on abortion is rendered all but redundant.

In 2007, the House of Commons’ Science and Technology Committee explained that the AA 1967 did not make abortion legal, but conferred upon doctors a defence for carrying out a prima facie illegal abortion, so long as  the two doctors police each other and appreciate the seriousness of the decision to terminate. In this respect, the AA 1967 confers an important role upon doctors as the gatekeepers to abortion services, a role that is enhanced by Section 2 of the AA 1967’s restrictions on the locations in which abortions may be performed and notification requirements.

The AA 1967 has been largely successful in fulfilling its goal of eradicating backstreet abortions, with the number of abortions steadily increasing until 2004 before it plateaued at around 200,000 a year – a rate similar to that seen in other Western countries. The impact of social inequality has been lessened too: abortion now stands as the single most common gynaecological procedure performed in the UK, highlighting its accessibility to women of all different backgrounds.

And – with the vast majority of abortions taking place early in the pregnancy: 92% are carried out in the first 12 weeks, just 2% at over 20 weeks and only 0.1% after 24 weeks - it is evident that the AA 1967 has provided a platform for the provision of safe, high quality, state-funded abortion services that are generally performed in the first trimester of pregnancy. Indeed, while abortion continues to be a leading cause of maternal mortality worldwide, death caused by abortion has been all but eradicated in the UK.

Criticism of the Abortion Act 1967

Nonetheless, the AA 1967 has been subject to widespread criticism from both commentators and medical bodies. For many, UK abortion law – riddled with archaic terminology and founded on values and assumptions grounded in a long distant era – and the prima facie prohibition it sets out is not only at odds with medical best practice but also at odds with societal norms. In short, in its current guise, the AA 1967 is out of date, paternalistic, and overly bureaucratic.

Out of Step with Modern Medicine

There is certainly a gulf between the AA 1967 and modern day medical reality. This problem was recognised in Smeaton v Secretary of State for Health [2002] by Munby LJ, who struggled to apply the legislation to new medical realities unimaginable to its architects. It is also evident from the fact that, in 1967, the majority of abortions were performed by technically demanding surgical techniques; today, in contrast, 95% of abortions are induced by drugs or by vacuum aspiration.

The gulf extends beyond advances in medical procedure to those in medical practice. Despite Lord Steyn declaring in Chester v Afshar [2004] that ‘paternalism no longer rules’– and paternalism’s belated obituary being written by the Supreme Court in Montgomery v Lanarkshire Health Board [2015] – paternalism remains very much alive with regard to abortion. For example, the AA 1967’s requirement that two doctors must certify the need for an abortion is grounded in the assumption that doctors, not women, are best placed to decide if an abortion is justified.  This runs contrary to modern day practice which has moved away from a “doctor knows best” attitude: today, patients are routinely trusted to make their own decisions. Pregnant women should be no exception.

Furthermore, as a result of the interpretation allowed for by Section 1(1)(a) of the AA 1967, doctors have exercised their discretion to authorise abortions liberally. In light of this, the requirement for two doctor’s signatures has become, at best, a totally bureaucratic system; at worst, it constitutes a breach of Article 8 of the ECHR.

Indeed, because evidence shows that the grounds for termination under Section 1(1)(a) of the AA 1967 will almost always automatically be filled in the first trimester, the criteria could be interpreted as having pre-determined the legal balance between pregnant woman and foetus. Thus, it is possible to argue that to impose a requirement to fulfil the conditions set out in Section 1(1)(a) of the AA 1967 for lawful access to abortion is an unnecessary and unlawful interference with the woman’s right to private and family life.

More importantly, the law as it stands may also result in delayed access to abortion services, which can itself result in the mother facing the increased risks that come with a second trimester surgical abortion. This too seems impossible to justify.

Unnecessary Restrictions on Location of Abortions

Evidence also suggests that the AA 1967’s restrictions on where and by whom abortion services can be performed has the capacity to delay timely access to abortions and therefore expose woman to the greater risks associated with second trimester abortions. This increased risk is exacerbated by the fact these restrictions are diametrically opposed to current medical practice.  

For example, despite it being possible for patients to take misoprostol at home for the treatment of miscarriage, the same drug – which accounts for 51% of terminations in England and Wales – must be administrated by a doctor in an approved location for early medical abortions (EMAs).

Furthermore, while late surgical abortion requires the expertise and experience of a highly trained doctor, Vincent Argent and Lin Pavey note that a vacuum aspiration abortion (which the AA 1967 requires to be carried out by a doctor) requires a comparable level of skill to the fitting of a contraceptive coil – a procedure routinely performed by nurses. This is corroborated by the World Health Organisation’s evidence that mid-level providers already perform vacuum aspirations in many jurisdictions across the world.

Wrongful Stigmatisation via Criminalisation

A further criticism of English law is its current inclusion of abortion – via sections of the OAPA 1861 – within the ambit of criminal law, which serves to stigmatise a third of the female population along with abortion providers. Allied to this, the criminal sanctions run contrary to their purpose and have no basis in medical reality.

It follows that it is time for abortion to been removed from the scope of the criminal law – the most draconian and punitive of state actions – and instead framed purely as a medical issue, as occurred in Victoria, Australia in 2008. In doing so, the UK should also bring the laws of Northern Ireland within its scope, not only ridding Northern Irish women of the world’s second most restrictive abortion law, but also giving women control of their fertility and lives in the same way as men. Cogent reasons for doing so were outlined by some members of the UK Supreme Court – most notably, Lord Kerr – in its recent judgment in Northern Ireland Human Rights Commission [2018].

In Smeaton [2002], it was suggested that the purposes of English law’s criminalisation of abortion were to prevent or condemn the intentional destruction of foetal life, and to prevent harm to women. However, any argument that English law’s criminalisation of abortion is vindicated by concerns for women help is indefensible. After all, a modern abortion is considerably safer than carrying the pregnancy to term, such that the number of deaths resulting from abortions in the UK is close to zero.

Furthermore, contrary to its intended purpose, the stigmatising effect of criminalisation – as well as the threat of prosecution – serve to damage women’s psychological health: the Academy of Medical Royal Colleges has found that women with negative attitudes towards abortion are at an increased risk of suffering mental health problems after an abortion. It is clear, then, that it is not abortion that produces a threat to women’s health, but the imposition – or, at least, the threat of – onerous criminal sanctions.

Moreover, the arguments for retaining criminal sanctions for abortion are at odds with modern reality. While some argue that decriminalisation will lead to a ‘return to the backstreets’, such scare-mongering has no basis in fact. In the same way that a specific criminal provision outlawing amateur dentistry was not required to discourage women from seeking out unqualified providers, the chances of women seeking backstreet abortionist in light of free, safe and confidential services offered by the NHS are minimal.

Furthermore, the condemnation of the destruction of foetal life does not provide sufficient grounds to impose criminal liability upon those seeking abortions and undermines the autonomy of women.  The majority of views on the moral status of abortion recognise the claim of the foetus to some moral consideration, albeit to varying extents. However, despite the existence of strong beliefs on both sides of the debate, Ronald Dworkin argues that very few people believe that the morality of abortion turns on whether foetus is a person. This view is supported by a 2015 YouGov poll, which found that only 6% of people questioned believed that abortion should be banned in all circumstances.    

One argument that does stand up to scrutiny – albeit to a limited extent - is that the provision of legal abortion can leave women to terminate wanted pregnancies for the wrong reasons. For example, despite it not falling within the permitted exception outlined in Section 1(1) of the AA 1967, it is suspected that around 100 pregnancies per year in the UK are motivated by parents seeking to select the sex of their child. This became an issue in 2012, when a Daily Telegraph sting operation highlighted the availability of ‘no-questions-asked’ abortions.  

However, whether this issue – which is already illegal the existing law – offers an argument is favour of the continued imposition of the criminal law is doubtful. In fact, it seems to provide instead a more compelling case for the implementation of robust consent procedures and the fostering of conditions under which these decisions can be made.

Lessons from Other Jurisdictions

English law can take lessons from other jurisdictions, most notably Victoria in Australia. Abortion was decriminalised in Victoria in October 2008 to bring the law in line with clinical practice and community attitudes. Though not a panacea, it is worth noting that – according to Louise Keogh et al – experts in Victoria agree that the three key goals of Victoria’s law reform were achieved:

  • To position abortion as a health rather than a legal issue;
  • To shift the power in decision making to women;
  • To increase clarity and safety for doctors.

Indeed, given that AA 1967 was only ever intended to be a halfway house, reforms – like that which took place in Victoria – would be a valuable reform. Indeed, as argued on NewMatilda.com, the greatest success of the Victoria law reform was how it introduced a:

[P]rofound shift in the relationship between the state and its female citizens [because] for the first time, women [can] be masters of their own lives and with that comes full citizenship.

Conclusion

There is a compelling case for English abortion law to be reformed. It is demonstrably at odds with clinical practice and societal values, and it imposes paternalistic and moralising values of an era gone by. The restrictions placed on the locations where abortions can be performed, and the individuals who can perform them hinder the intended purposes of the AA 1967 and create the potential for harm to women’s health.

Furthermore, the benefits of decriminalisation have been clearly illustrated through the successes of reform in Victoria. Such a reform would empower, and serve the interests of, women across the UK – something which the current law fails to achieve.  

It is therefore regrettable that – given the attitudes of the DUP and their current influence on the Conservative government, the surprising prominence of Jacob Rees-Mogg’s incredibly conservative views, and the demands of delivering Brexit - it is unlikely that reform of UK abortion law is high on the political agenda.

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Tagged: Criminal Law, Equality, Medical Law & Ethics

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