The case of a mother prosecuted for inducing her own abortion after the legal limit is tragic. Her imprisonment is unconscionable. The judge accepted that she was in “emotional turmoil” when she ended her pregnancy at between 32 and 34 weeks: with lockdown imposed, she had moved back in with her estranged partner while carrying another man’s child and was seeking to hide the pregnancy. She has since experienced guilt and depression, and is plagued by nightmares and “flashbacks to seeing [her] dead child’s face”. Her three children, one of whom has special needs and is thus especially reliant upon her, will be denied her for the next 14 months.
Many have asked good questions about the decisions of prosecutors to pursue the case in these circumstances, and of the judge to impose a prison sentence. Nonetheless, as the judge identified, ultimately the issue is the law itself.
At the heart of this outrage lies a paradox. Abortion is now a routine health procedure: one in three women in the UK will have one in their lifetime. Yet according to law, it remains a crime except under the exemptions created in 1967. In practice, the Abortion Act passed that year has served women and society well, saving lives. Women can access safe and legal abortions up to 24 weeks in England, Scotland and Wales. The overwhelming (and steadily rising) majority – 89% in 2021 – are carried out before 10 weeks. Only 1% are carried out over 20 weeks. A vanishingly small number – 276 in 2021 – are carried out legally after 24 weeks due to exceptional circumstances, such as because the mother’s life is at risk or the child is severely disabled.
Supporters of reproductive rights have often taken a pragmatic approach to the legislation, worried that reopening the issue might create more problems than it solves. That remains a concern at a time when culture war rhetoric is resurfacing, misinformation spreads so rapidly and jubilant anti-abortion campaigners from the US are funding and training activists elsewhere, including the UK.
But if the law ain’t broke for most, it is being used to break a small number of women. Dozens have been investigated on suspicion of illegal abortions in the last decade, including after natural stillbirths and in the case of pregnancies which ended before 24 weeks. The British Pregnancy Advisory Service says investigations have risen in the last three years.
It is hard to see what purpose is served by criminalising women who would be better dealt with by healthcare and other services, especially when vulnerable women – for example, those with coercive partners – are more likely to be affected. Most women who want to end a pregnancy already do so long before the legal limits. What criminalisation may do is make women in fraught situations more likely to turn to unregulated suppliers of abortifacients, and more wary of seeking healthcare afterwards. This is one of the reasons that the British Medical Association and many other healthcare associations advocate decriminalisation.
Decriminalisation does not remove gestational limits or other regulation. Health professionals could still be held answerable; men who coerced partners into abortion could also be dealt with through other laws. Canada, Australia and New Zealand have already decriminalised abortion. But Westminster has also acted. In reaction to the draconian nature of restrictions in Northern Ireland, highlighted by the landslide referendum victory to overturn the ban in the Republic of Ireland, it ensured abortion was decriminalised there (though it remains largely unobtainable). The right and logical course is to decriminalise abortion in the rest of the UK.
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