Decriminalisation of abortionBMJ 2017; 356 doi: https://doi.org/10.1136/bmj.j1485 (Published 23 March 2017) Cite this as: BMJ 2017;356:j1485
- Clare Dyer, legal correspondent, The BMJ
In the year that sees the 50th anniversary of the Abortion Act 1967, which created a framework for legal termination, campaigners argue that the time has come for abortion to be decriminalised in England and Wales. A coalition of 20 organisations, We Trust Women, says that women who choose abortion should no longer risk life imprisonment under a law dating back to the Victorian era, when only men could vote.1 The organisations include the Royal College of Midwives and Doctors for a Woman’s Choice on Abortion. The BMA has no policy on decriminalisation but set out possible options in a recent discussion paper.2
What is the law in England and Wales?
Abortion is a crime under the 1861 Offences Against the Person Act. The Abortion Act creates an exception, making abortion on licensed premises lawful under specific conditions. When two doctors agree that continuing the pregnancy is a greater risk than the abortion to the life or health of the mother or any of her existing children, abortion is lawful up to 24 weeks’ gestation. Terminations up to full term are permitted in exceptional circumstances: if continuing the pregnancy would involve greater risk to the life of the woman than terminating it; if abortion is necessary to prevent grave permanent injury to the physical or mental health of the woman; or if there is a substantial risk that the child would be born with serious disability.
Abortions under any other circumstances are unlawful. If a woman obtains abortifacient drugs online and uses them at home to terminate a pregnancy, even before 12 weeks’ gestation, she commits an offence under the 1861 act that is punishable by a maximum sentence of life imprisonment, the harshest penalty imposed by any European country.
Have there been prosecutions under the 1861 act?
Two recent prosecutions in England involved vulnerable women who obtained pills to carry out late term abortions. Sarah Catt pleaded guilty in 2014 and was sentenced to eight years in prison, reduced to 3.5 years on appeal. Natalie Towers received a 2.5 year prison sentence after pleading guilty in 2015. In Northern Ireland, where the 1861 act also applies, a woman who bought pills to terminate her pregnancy in the first trimester was given a suspended jail sentence, and a mother has been prosecuted for obtaining pills for her 15 year old daughter. The 1861 act does not apply in Scotland.
What do campaigners want and why?
Campaigners say that abortion is the only medical procedure that is regulated by the criminal law, denying women control of their bodies. Many countries in Europe recognise that a woman has a right to end a pregnancy before the fetus is viable. Campaigners want legislation repealing sections 58 and 59 of the 1861 act, which make abortion outside the exceptions in the Abortion Act a crime punishable by a maximum of life imprisonment. Decriminalisation would not mean deregulation: abortion would still be regulated. “It would need to be part of a managed programme of reform,” says Sally Sheldon, professor of law at Kent University, who coordinated a letter to the Guardian newspaper signed by more than 200 legal academics and lawyers in support of decriminalisation.3
How far has the campaign got?
A 10 minute rule bill, the Reproductive Health (Access to Terminations) Bill, was introduced in the House of Commons by the Labour MP Diana Johnson on 13 March.4 The second reading will be on 24 March, after MPs voted in favour by 172 votes to 142. The debate has raised the matter in parliament but unless the government allocates parliamentary time, which is unlikely, the bill will not make it into law.
Has abortion been decriminalised elsewhere?
In 1988 the Supreme Court of Canada struck down the criminal code governing abortion as unconstitutional, so abortion is no longer a crime there. Individual provinces apply different gestational age limits to the abortions they will fund, however. “Canada is a good lesson for people who are worried about decriminalisation,” notes Sheldon. The abortion rate has remained fairly low and there are few late abortions. Statistics for 2014 show an abortion rate of 14.7 per 1000, which compares with 15.9 per 1000 in England and Wales. In Canada 0.86% of abortions were performed after 21 weeks. England and Wales have no directly comparable statistic but less than 0.1% of abortions were done after 24 weeks.5 In some parts of Australia abortion has been decriminalised as part of overall reform of abortion law.
What do opponents of decriminalisation say?
Much of the opposition comes from Christian and antiabortion groups. In addition, Not in Our Name, a campaign group set up by midwives who oppose their royal college’s support for the bill, have labelled the measure “extreme.”6 Maria Caulfield, the Conservative MP who spoke in opposition to the bill, called it “a response to a non-existent threat.” She added, “It would exacerbate the dangers posed by the increased availability of abortion pills and it would remove some of the few protections and regulations in abortion law, fuelling unethical and unsafe practices in many UK abortion clinics and leaving women less safe and less informed.”
Competing interests: I have read and understood BMJ policy on declaration of interests and have no relevant interests to declare.
Provenance and peer review: Commissioned; not externally peer reviewed