We’re horrified by the rejection of Roe v Wade—but abortion is not a universal right in the UKBMJ 2022; 378 doi: https://doi.org/10.1136/bmj.o1945 (Published 17 August 2022) Cite this as: BMJ 2022;378:o1945
- Sarah Graham, journalist
When the US Supreme Court overturned Roe v Wade in June it sent shockwaves across the global reproductive health community and horrified the overwhelmingly pro-choice British population. But campaigners have highlighted that abortion is not a universal right here either.
What’s the current status of abortion in the UK?
In England, Scotland, and Wales abortion is still governed by Victorian era criminal law. The 1967 Abortion Act introduced exemptions, permitting abortion under specific circumstances, including a gestational time limit (currently 24 weeks) and the requirement for two doctors to sign off on the procedure.
“There’s very little recognition of the fact that, while the 1967 act was ground breaking for its time, it didn’t remove the underpinning criminal law from abortion,” says Clare Murphy, chief executive of the British Pregnancy Advisory Service (BPAS), an abortion services provider. She explains, “The 1861 Offences Against the Person Act made it a criminal offence for any woman to end her pregnancy and for anyone to assist her with doing so. Today any abortion that takes place outside of the 1967 act still, in principle, carries the penalty of life in prison [for both the woman and the abortion provider].”
Meanwhile in Northern Ireland, abortion was decriminalised in 2019. But although the region now has the most liberal abortion law in the UK, access to abortion is still far from solved. “Abortion was basically illegal in all but the most extreme circumstances until very recently,” says Louise McCudden, UK advocacy and public affairs adviser at the charity MSI Reproductive Choices. “The new legal framework came into place in 2020, but access is still a huge problem because the Department of Health in Northern Ireland is still not commissioning the services.”
The laws of England, Scotland, and Wales are relatively unusual in punishing pregnant women (or trans or non-binary patients) for having an abortion. Jonathan Lord, co-chair of the Royal College of Obstetricians and Gynaecologists’ abortion taskforce and the British Society of Abortion Care Providers, says, “Even in American states where abortion is now banned, women are seen as victims, often in vulnerable situations—not criminals.
“It’s typically for quite paternalistic reasons, rooted in the misogynistic assumption that a woman can’t actually make a decision for herself, but even the most oppressive of [US] legislation tends to be against the provider, not the women themselves.”
What are the legal implications for patients and clinicians?
From a practical perspective, says Murphy, “Large charitable providers like BPAS and MSI Reproductive Choices have processes and systems in place which mean that meeting the legal obligation of two doctors’ signatures can be achieved in a swift and straightforward way so that women don’t experience any delays.”
Nevertheless, McCudden adds, “The fact it sits within criminal law makes it easier for the very aggressive, vocal anti-choice minority to chip away at access, stigmatise abortion care, and put barriers in place that don’t have any sort of clinical basis.”
While it’s generally possible to access legal abortion care in the UK, she explains, in a small number of cases—typically in very complicated or desperate circumstances—that may not be possible. In such cases, she says, “The decision [to have an abortion] should be made on a clinical basis, by a doctor, a safeguarding lead if applicable, and the individual who’s pregnant. It shouldn’t be a matter of criminal law, and clinicians should be able to act in the patient’s best interest rather than having to worry about criminalisation.”
Police investigations into illegal abortions are rare, and prosecutions even more so. However, some recent UK cases have seen women subjected to lengthy and traumatic criminal proceedings under both the 1861 act and the 1929 Infant Life (Preservation) Act. In July this year the Times reported on two such cases going through the courts, with both women facing imprisonment for charges relating to unlawfully taking abortion pills.1
There are also implications for patients who have unexplained miscarriages or stillbirths. In 2021 a 15 year old girl was put through a year long investigation—including a “digital strip search” of her phone and laptop—after medical staff raised suspicions about her stillbirth.2 Another woman was held in police custody for 36 hours after having a stillbirth at 24 weeks, even though this would have been within the legal limit for an abortion.3
Murphy says, “There’s no public interest in pursuing these cases, and I’m very concerned about the message it sends to women about what might happen to them What if someone finds herself having a miscarriage or a stillbirth, but she’s previously Googled ‘abortion’ or been to a clinic and then changed her mind? Does that mean she’s going to fall under suspicion for ending her own pregnancy?”
This also has a chilling effect on staff, says Lord, such as the Care Quality Commission’s raids on abortion clinics in 2012, ordered by the then health secretary, Andrew Lansley.4 Lord explains, “They were looking for anomalies in the two doctor signature system, but it turned out to be a colossal expense and did real harm [because of the other inspections that were missed as a result].
“It also left staff frightened and constantly looking over their shoulder. When you’re in that position, you can’t act in the best interests of patients because you’re worried about being arrested, fired, or referred to the General Medical Council, which is incredibly stressful.”
The law similarly acts as a barrier to healthcare professionals pursuing a career in abortion care in the first place, says Victoria Kinkaid, a foundation year 3 doctor and campaign coordinator for the abortion rights group Doctors for Choice UK.
“The fact it needs two doctors to sign off, and doctors face prosecution if that paperwork is not completed correctly, is a source of worry for a lot of doctors,” she says. “That puts our colleagues off wanting to be involved in abortion care, and it also means we can’t empower our nursing or midwifery colleagues to provide it, which is really sad because abortion is essential healthcare.”
How does service provision vary?
The lack of services in Northern Ireland means that pregnant patients must still travel to England if they want to access abortion care. “[At MSI Reproductive Choices] we run the booking service, so we know it’s an ongoing problem,” says McCudden. “We would like that to be moving more quickly but, in fairness to the UK government, they have been quite consistent about saying it’s not acceptable and putting pressure on the government in Northern Ireland to sort it out.”
Similar challenges also face women seeking second trimester abortions in Scotland, where no health board offers abortion care up to the legal limit of 24 weeks.5 As a result more than 2000 women have had to travel from Scotland to England for abortion care since 2010.6
How else is access affected in the UK?
Even for patients seeking abortion within the existing legal framework and in areas where service provision is good, access is not always easy. Over the past decade patients, doctors, and campaigners have expressed concern about the increase of anti-abortion protests outside clinics. Their presence is distressing not only to patients accessing abortion care but also to those seeking healthcare after sexual assault or miscarriage or in other circumstances.
Alice Murray had to walk past protesters outside the Chalmers Sexual Health Centre in Edinburgh when she had an abortion in 2019, then aged 20. “When I found out I was pregnant I knew straight away that wasn’t what I wanted, and I felt confident about the choice to have an abortion,” she says. “As I came down the road towards the clinic, though, there were six or seven protesters very visible across the road from the entrance. I’d been to Chalmers clinic before to access sexual healthcare and I always felt angry seeing them there, but this time, because I was actually there for an abortion, it felt like I was being personally targeted.
“At first, I felt really angry and upset. Then my fight or flight response kicked in, and it was like I went outside my body for a bit—I just kept putting one foot in front of the other. Even though I didn’t find getting an abortion traumatic or upsetting in itself, that experience of the protesters was so wrapped up in it, it really affected my ability to process everything.”
Besides Jonathan Lord’s roles at the Royal College of Obstetricians and Gynaecologists and the British Society of Abortion Care Providers, he is medical director at MSI Reproductive Choices. He says that “over the past few weeks we’ve had reports of patients arriving in tears.” This is understandably upsetting for clinical staff too, who, in addition to dealing with the distress of their patients, face harassment themselves. Staff members at MSI have reported feeling “intimidated” and “uncomfortable,” with one saying, “It does affect your mental health after a while. They want to make you feel bad about what you do.”
Murray is now a campaign coordinator for Back Off Scotland, a student led campaign founded in 2020 to lobby for “buffer zones,” which would ban protests outside abortion clinics in Scotland. Similar campaigns exist in England and have seen such zones introduced at a local level in Ealing, Richmond, and Manchester, but activists in both countries say that national policies are the only effective way to protect all patients accessing abortion care.
This now looks set to happen in Scotland next year, as a bill put forward by Gillian Mackay has received the backing of Nicola Sturgeon’s government.7 In England, however, Sajid Javid rejected cross party calls for buffer zones when home secretary in 2018, saying that they were “not a proportionate response.”8
Is there a risk to existing UK rights?
The big question is whether the overturning of Roe v Wade poses a credible threat to abortion rights here in the UK. “The important thing to keep in mind is that most people in the UK—as many as 90%—are pro-choice,9 and most of our parliamentarians are pro-choice as well, which is probably why we get support across the political spectrum,” says McCudden.
That said, anti-abortion campaign groups, many of which are funded by US organisations, have clearly been emboldened by what they see happening in the US. McCudden adds, “We have seen a rise in anti-choice activity around our clinics. We think some of that might be in response to the repeal of Roe v Wade. It’s a little early to say if that’s the only causal factor, but it is certainly something we’re aware of and monitoring, and it does seem to be escalating.”
Equally, while there’s a pro-choice majority across parliament, Lord notes that the current government is less supportive of abortion rights. This was seen in a failed attempt by ministers to remove the right to telemedical abortion, brought in during the pandemic, which parliament ultimately voted to make permanent.10 The government also recently came under fire for quietly removing commitments to abortion and reproductive health rights from a global pact on gender equality.11
Despite all of this, says Murphy, “If anything, [the repeal of Roe v Wade] has galvanised the pro-choice majority and shown that we have to up our game to make sure nothing like that ever happens here.”
What change would UK campaigners like to see?
Decriminalisation is the ultimate aim, supported by the Royal College of Obstetricians and Gynaecologists and its Faculty of Sexual and Reproductive Health, as well as organisations such as BPAS, MSI, and Doctors for Choice. This, Lord explains, would mean taking abortion out of criminal law and bringing it solely under general medical regulations, like any other procedure.
Murphy concludes, “I don’t necessarily think we need the right to an abortion to be enshrined in law: we just need to get rid of all the laws that inhibit access. But decriminalisation is not enough if you don’t have the healthcare services.
“We could decriminalise abortion tomorrow, but we’d still need to keep campaigning to ensure that there is access to services.”
Patient consent obtained.
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.