Access to abortion in the UK: the laws being used to criminalise abortion
Anthony Metzer KC and Dr Charlotte Proudman argue for the decriminalisation of abortion
In June 2022, when the US Supreme Court overturned its own precedent in Roe v Wade, the reaction of many 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 situation in the UK
Even since the Abortion Act 1967 became law, the UK is not particularly liberal in its regulation of abortion. 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.’ There are 75 countries with fewer restrictions on access to abortion, including New Zealand, South Africa and, even, Russia. In Europe alone, 39 countries allow abortion on request.
In 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. The simplest way for doctors to complete the necessary paperwork is to certify a risk of injury to mental health. This makes abortion available in practice, but any woman wishing to have an abortion must first ask two doctors to label her with mental health challenges or illness.
In reality, doctors signing off on abortions are rarely equipped to assess the woman’s mental health. If doctors took their responsibilities literally, many abortions would not be authorised. Everyone turns a blind eye to this condescending fiction and although technically there are no foetal homicide laws in England and Wales, a number of offences have been used to criminalise abortions.
The first of these, procuring an illegal miscarriage, falls under the Offences Against the Person Act 1861 (the ‘1861 Act’), which criminalises ending a pregnancy at any point, even pre-viability, and makes any woman who does so liable to life imprisonment. The 1861 Act also introduced life imprisonment for procuring your own abortion. Indeed, there have been convictions for this offence in recent years; one woman faced trial recently. Another woman alleged that she was in an abusive relationship and was coerced into taking illegal abortion tablets only to find herself imprisoned in 2019.
These laws are often seen as an eccentricity of our legal system. Few realise that they are still being used to criminalise women. In 2022, a 25-year-old woman in Oxford was accused of unlawfully administering misoprostol, one of two pills routinely prescribed by doctors to abort a pregnancy. She was on trial for a crime falling under the 1861 Act, carrying the life sentence risk. The case was dropped in December last year; the judge said he was “flabbergasted” at the prosecution. Another woman in Staffordshire was charged with child destruction under the Infant Life (Preservation) Act, which dates back to 1929.
‘Pills by post’
While recorded offences remain uncommon, the number of women investigated under these archaic laws is rising exponentially. The reason is the arrival of ‘pills by post’ services. In March 2020, as the country entered lockdown, the Department of Health and Social Care issued a temporary approval of at-home access to legal abortion up to ten weeks’ gestation. These temporary measures have since been made permanent.
However, if a woman takes abortion pills later than ten weeks, or without a doctor’s prescription after getting them online, she is breaking the law. 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.
We consider 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 sadly still so entrenched, people do not see the restriction as objectionable.
Anthony Metzer KC and Dr Charlotte Proudman are barristers at Goldsmith Chambers