Abortion in the 21st Century: Is Decriminalisation on the Horizon?

Abortion, if it is not carried out according to the strict requirements of the Abortion Act 1967, is technically still a criminal offence in England and Wales, carrying a maximum penalty of life imprisonment. Over the past year, there has been increasing support from Members of Parliament (MPs) and healthcare organisations to remove abortion from the criminal law. There is a drive for abortion to be seen as a healthcare issue, which can and should be regulated, rather than a legal issue attracting criminal penalties.

The current legal framework surrounding abortion

Under Sections 58 and 59 of the Offences Against the Person Act 1861, it is a criminal offence for:
• a woman to cause her own abortion;
• someone else to cause a woman to have an abortion; and
• someone to supply the medication/equipment required to cause an abortion.

The maximum penalty for these crimes is “to be kept in penal servitude for life”.

The Abortion Act 1967 did not take abortion out of the criminal law, but rather provided circumstances under which abortion can be legally carried out. A woman may only have a legal abortion “if two registered medical practitioners are of the opinion, formed in good faith:
(a) 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; or
(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or
(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or
(d) 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.”

Section 1(1), Abortion Act 1967

In addition, the abortion must be carried out by a registered medical practitioner in a hospital or approved place.

Why should abortion be decriminalised?

The law surrounding abortion is problematic for several reasons. One of these reasons is that the law takes control of women’s bodies out of their hands and puts it firmly in the hands of doctors. It is not sufficient for a woman to state that one of the criteria in Section 1(1) of the Abortion Act 1967 has been met. What makes the abortion legal is if two doctors believe that one of the criteria is met. This emphasis on opinion necessarily leaves room for subjectivity. Nobody knows the woman’s circumstances better than the woman herself, and yet her views on the impact of a continuing pregnancy are not relevant in the eyes of the law.

The fact that two doctors must authorise an abortion makes the process longer and more bureaucratic. Time can often be of the essence when it comes to abortion. Certain procedures are available at certain gestations and delaying the approval process can limit choice for women. For the few women who are approaching the 24-week limit, even a short delay could be the difference between being able to proceed with the abortion and having to continue the pregnancy.

Even though there are few prosecutions under the Offences Against the Person Act 1861 for procuring an abortion, prosecutions do happen, and it is inevitable that the threat of criminal sanctions will deter both women from seeking an abortion and doctors from providing abortions. Women should not be made to feel like criminals simply for exercising autonomy over their own bodies, and doctors should not be made to feel like criminals for carrying out safe and legal medical procedures.

What would decriminalisation look like?

We do not know for sure what decriminalisation would look like, but much of the discussion has focused on abolishing the criminal penalties associated with abortion and removing the approval of two doctors. There has been much emphasis on the fact that the 24-week time limit would still apply and that decriminalisation does not mean deregulation. In order to ensure its safety, abortion would still be regulated, just like any other medical procedure.

Support for decriminalising abortion

Several healthcare organisations have spoken out in favour of decriminalising abortion. Back in May 2016, the Royal College of Midwives (RCM) published a position statement in which it confirmed that it supported the campaign to remove abortion from the criminal law. More recently, in June 2017, members of the British Medical Association (BMA) voted to back decriminalisation of abortion. In September 2017, members of the Royal College of Obstetricians & Gynaecologists (RCOG) followed suit, and also voted in favour of removing the criminal sanctions associated with abortion. In October 2017, the Faculty of Sexual & Reproductive Health (FSRH), a Faculty of the RCOG, published a statement following a discussion amongst its members confirming that it too supports the decriminalisation of abortion.

Whilst midwives and doctors have come out strongly in favour of decriminalising abortion, the Royal College of Nursing (RCN) has, until recently, been notably silent on the issue. However, on 16 February 2018, it launched a consultation seeking the views of its members on decriminalisation of abortion. In its briefing paper, the RCN stated that it expected this project to be the initial phase of ongoing work in this area.

Proposals to decriminalise abortion

In March 2017, Diana Johnson MP put forward a motion in the House of Commons for leave to bring in the Reproductive Health (Access to Terminations) Bill repealing “certain criminal offences” relating to abortion. In support of the Bill, Ms Johnson argued that the current law compromises women’s care and leads doctors to think twice about practising in this area. By removing the stigma of the criminal law, she proposed that an environment could be created in which “women can come forward for advice and high-quality, woman-centred healthcare as early as possible in pregnancy”.

Ms Johnson addressed objections to the Bill by pointing out that decriminalisation would not make it easier to access abortions after 24 weeks, would not lead to unlicensed practitioners practising abortions, and would not permit gender-selective or non-consensual abortions. She emphasised that decriminalisation does not mean deregulation.

The resulting vote was 172 in favour of bringing the Bill and 142 against. The Bill was due to have its second reading in May 2017, however as Parliament was dissolved in advance of the General Election, this did not take place. In October 2017, Diana Johnson spoke at a conference to mark 50 years of the Abortion Act 1967 held at the RCOG, and she confirmed that she is still working on the Bill and intends to bring it forward in Parliament once again. It is reassuring to know that this time round she will have the support of the RCM, the BMA, the RCOG and the FSRH. One can only hope that the RCN will also follow suit.

Andrea Adams, MA, Registered Nurse, St Mary’s Hospital, Imperial College Healthcare NHS Trust, London, and Non-practising Solicitor; andrea.adams4@nhs.net