Decriminalising abortion: is it time for England and Wales to catch up?

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In June 2023 Carla Foster was sentenced to 28 months in prison after pleading guilty to procuring an illegal abortion. The mother of three from Staffordshire, was prevented from contacting her children whilst behind bars. After serving 35 weeks, the Court of Appeal reduced the sentence to 14 months suspended. The Court of Appeals commented on the reduction that “It is a case in our view that calls for compassion, not punishment, and it is one where no useful purpose is achieved by detaining Ms Foster in custody”. This statement from the Court of Appeals alongside the sharp increase in women being investigated and prosecuted – 6 in 6 months – has led to the following questions being asked in Parliament: if abortion is a healthcare procedure, are criminal sanctions the way to regulate them? Furthermore, is the police the right agency to be dealing with vulnerable women?

England and Wales have some of the highest maximum penalties for illegal abortions in Europe. The 1861 Offences Against a Person Act – an act brought into law over 50 years before women gained the right to vote, and primarily dealing with crimes such as Homicide and Assault – carries the maximum penalty of life in prison for an illegal abortion. A private members bill has been proposed by Labour MP Diana Johnson that would prevent women being prosecuted or investigated for suspected illegal abortions. This bill would not create provision for abortion to be provided beyond the current 24-week mark, nor would it erase the legal requirement for 2 doctors signatures. However, it proposes that breaking abortion regulations become a public health, not criminal, matter. 

A private members bill has been proposed by Labour MP Diana Johnson that would prevent women being prosecuted or investigated for suspected illegal abortions.

 The issue of abortion in the UK has long been thought to be a resolved issue. Unlike in the USA where abortion remains a highly partisan issue, as shown by the 2022 reversal of Roe vs Wade, 87% of Britons say abortion should be allowed in the UK. 

Since the 1967 Abortion Act legalising abortion subject to regulation, there has been very little discussion about the subject in Parliament. It is worth noting abortion is not a right in UK law.

There is wide cross-party backing for the bill. Abortion is considered a moral conscience issue by all parties, meaning that MPs do not need to vote with the Whip. In polling carried out by British Pregnancy Advisory Service, 55% of MPs supported women no longer being prosecuted for illegal abortions. 23% responded that they thought that women should be prosecuted and 22% were unsure. Overall, 77% of female MP’s believe women should not be prosecuted.

55% of MPs supported women no longer being prosecuted for illegal abortions. 23% responded that they thought that women should be prosecuted and 22% were unsure.

Outside of Parliament, The Royal College of Obstetricians and Gynaecologists recently released guidance for healthcare providers advising that “it is never in the public interest to investigate a patient suspected of ending her own pregnancy” and that healthcare professionals working in women’s health “rarely need to liaise with the police […] a health carer must abide by their professional responsibility to justify any disclosure of confidential patient information”.

Further support from the bill comes from organisations such as The British Pregnancy Advisory Service, Doctors for Choice UK, and the Women’s Equality Party. The British Pregnancy Advisory Service commented “Like nearly 90% of the country, we believe in a woman’s right to choose. No woman should be forced to continue a pregnancy against her will. We believe that no woman should ever face the threat of jail for seeking to end her own pregnancy, and that the right person to make a deeply personal decision about abortion is the woman herself with the support of her medical team”. Doctors for Choice, a group of healthcare professionals who campaign for abortion rights had a similar comment regarding abortion being treated as healthcare “we support the full decriminalisation of abortion throughout the whole of the UK, which would mean removing abortion from the criminal statute and regulating it like any other healthcare”.

However, there is some opposition to the bill.  The Christian Action Research and Education group (CARE), who have a self-described pro-woman and pro-God outlook on abortion, oppose decriminalisation. They claim that it “is fallacious to claim that women are being regularly criminalised for performing abortions” stating that “There have been only two prosecutions for women in the last 10 years under the current law – both in extreme circumstances when their babies were very late in term”. 

he British Pregnancy Advisory Service commented “Like nearly 90% of the country, we believe in a woman’s right to choose. No woman should be forced to continue a pregnancy against her will. We believe that no woman should ever face the threat of jail for seeking to end her own pregnancy, and that the right person to make a deeply personal decision about abortion is the woman herself with the support of her medical team”.

The organisation also claims that abortions could become sex selective or due to minor disability “This means that abortions can occur on the basis that the baby is a girl, or if it has any kind of disability – no matter how severe”. However, the bill does not propose changes to abortion provision, only not to  prosecute the women who carry out illegal abortions themselves.

The bill is also opposed by The Society for the Protection of Unborn Children. They argue that “A woman who took abortion pills at home at any stage of pregnancy, even just before natural birth, and so ended the life of a full-term baby, would not commit any offence.” 

This objection is echoed by non-Christians as well as moderately pro-choice individuals. There is a concern that relitigating abortion could backfire, resulting in women losing ground to the anti choice lobby. 
Alongside the amendment to decriminalise abortion, an additional private member’s bill has been introduced calling for the time limit for abortion to be decreased from 24 to 22 weeks. In response to opposition to decriminalisation, and the idea of reducing the time limit Dr Rachel Clarke, chief of staff at BPAS said in a quote to The Independent  “Members of Parliament should not be fooled by this predictable move from anti-abortion MPs to try and move focus away from the fact that they believe that in 2024, women should be jailed for having an abortion”.

Image: Becker1999 via Wikimedia Commons

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