Intended for healthcare professionals

Rapid response to:


Criminalised abortion in UK obstructs reflective choice and best care

BMJ 2018; 362 doi: (Published 09 July 2018) Cite this as: BMJ 2018;362:k2928

Rapid Response:

Re: Criminalised abortion in UK obstructs reflective choice and best care

The Editorial, unfortunately, confuses a number of different issues under the rubric of ‘decriminalisation’. First, whether sections 58 and 59 of the Offences Against the Persons Act (OAPA), which criminalise unlawful abortions, should be repealed. Second, whether the substantive and procedural requirements of the Abortion Act should be liberalised by, for example, removing the requirements of the two doctors or allowing telemedicine. Third, whether and to what extent should the position in Northern Ireland be liberalised. This response will focus on whether sections 58 and 59 should be repealed. The two other proposed changes can be done without repealing those provisions.

Repealing sections 58 and 59 would result in there not being any substantive or procedural restrictions on abortion prior to 24 weeks when the Infant Life Preservation Act (ILPA) starts to operate by prohibiting abortion after that point. If, in addition, ILPA is repealed there would not be any legal restrictions on abortion at any point until birth. So it is true that repealing sections 58 and 59 would liberalise abortion access in England, Wales and Northern Ireland but repeal is a very blunt instrument to do so. The main use of sections 58 and 59 have been the prosecution of men for surreptitiously administering abortion pills to women. Repealing those provisions would reduce the protection women have against non-consensual abortions. Defenders of decriminalisation might argue that such cases could be prosecuted under other legal provisions, for example, the poisoning offences under sections 23 and 24 of the OAPA. But it is far from clear that a prosecution using those provisions would succeed on legal grounds. Whereas under section 58 the thing administered must be harmful to the foetus, under sections 23 and 24 it must be harmful to the woman. But it is by no means clear that misoprostol is harmful to women; it is after all used to treat stomach ulcers. So, if we believe that non-consensual abortions are a serious crime that should be prosecuted then we must not repeal sections 58 and 59.

It is argued that the current legal position - whereby abortion is a crime unless the conditions of the Abortion Act are met - is ‘hypocritical and anachronistic’. But why? This position makes perfect sense. It recognises that an unwanted pregnancy involves a moral conflict between the foetus and the woman. Indeed, one of the authors of the Editorial chastised, in a January 2017 Editorial, those who refused to acknowledge moral complexity in this area.

Sections 58 and 59 recognise that the foetus has value whilst the Abortion Act recognises the important autonomy interests at stake for the woman. The balance that the law draws is that outside the context of the Abortion Act the foetus’s interests should be protected - hence the criminalisation of non-consensual abortions - but that in the conditions laid down in the Abortion Act the woman’s interest wins out. In other words, abortion is a prima facie wrong which is, in some circumstances, all-things-considered justified.

This is in line with public opinion. The Editorial cites the British Social Attitudes Survey which shows that over 60% of the population believe a woman should be able to have an abortion if she does not want to continue with the pregnancy. But this is not inconsistent with abortion being a prima facie wrong which becomes justified when the woman does not wish to continue gestating. Other opinion polls confirm this view. A 2013 YouGov poll for the University of Lancaster found that 44% of the population (and 53% of woman) thought that life begins at conception, a further 30% thought it begins at some point during pregnancy and only 17% believe that it begins at birth. There is also widespread concern about the high rate of abortion in the UK. For example, on the Daily Politics on the May 22nd Jacob Rees-Mogg MP (who is pro-life) and Jo Swinson MP (who is pro-choice) both expressed the view that 200,000 abortions per annum was too high. Public opinion shares that view. An October 2010 poll by ComRes found that 62% of the population believed that the abortion rate was too high and should be reduced, only 25% thought it was a reasonable number. But, if abortion was not even considered to be prima facie morally wrong, such a view would not make sense. It is precisely because abortion is seen as a moral wrong (albeit one which can justified) that there is such a concern about the high rate of abortion.

But perhaps the clearest evidence that abortion is seen as a prima facie moral wrong is an October 2017 poll by Com Res. It explicitly asked people what their thought was on decriminalisation. 55% (and 56% of women) said that it would ‘not be good because although it is often felt that abortion is acceptable in some contexts it is also recognized that the unborn child requires some legal recognition and protection which would not be consistent with permitting abortion without any legal restraint’; by contrast 45% agreed with the view that decriminalisation would be good ‘as it would remove the stigma from having an abortion.’ The poll also found that 53% thought decriminalisation would ‘be wrong as it would no longer indicate the serious nature of a procedure that ends human life’ by contrast 47% thought that it would ‘be good as it would send a signal that it is a woman’s right to choose what happens to her body.’ So a majority of the population believes that it is more important for the law to signal that abortion is a prima facie wrong than it is to remove any stigma that this judgement might cause.

Therefore, the current scheme whereby abortion is a crime subject to exceptions provided in the Abortion Act should stay. Such a scheme ensures the protection of women from non-consensual abortions and it plays an important role in signalling that we consider fetal life to be valuable, albeit one which can be overridden by the interests of the pregnant woman.

Competing interests: No competing interests

31 July 2018
Rajiv E Shah
PhD Candidate in Law
University of Cambridge
Downing College, Regent Street, Cambridge CB2 1DQ