How many women know they can still be prosecuted for having an abortion?
When it comes to women’s rights, Northern Ireland became the most progressive nation in Europe this week. Rose Stokes explains why we shouldn’t celebrate just yet
On Monday night, new legislation came into effect that made Northern Ireland the most progressive country in the United Kingdom – and Europe – when it comes to women’s reproductive rights. The legislation lifted a ban on abortion that had been in place for 158 years, after a vote in Westminster in July that required a change to the law on both this issue and same-sex marriage in Northern Ireland.
Alongside the legalisation of abortion services, the law signalled an end to the classification of terminating a pregnancy as a criminal offence for both service providers and users, removing the threat of prosecution for those involved and giving women in Northern Ireland the right to decide what happens with their bodies. For a country that is often considered the laggard among those that make up the United Kingdom when it comes to gender and sexual equality, this development was a huge marker of progress.
It also meant that – for the first time since the Abortion Act was passed in England, Wales and Scotland in 1967 – Northern Ireland is now home to the most liberal abortion policy in Great Britain. This owes to a fact of which the majority of British people are unaware: that abortion is still considered a criminal offence in England, Scotland and Wales.
One of the main reasons for this is that access to abortion services for women in those countries has been available since 1967. However, access is caveated by a series of legal requirements that make abortion the only routine medical service in England and Wales that requires both legal authorisation and consent from the patient.
The main stipulation is that two doctors must sign off on an abortion before it can be performed. In practice, this process has been integrated into the routine of medical professionals performing the procedure, which is carried out by three abortion service providers on behalf of the NHS: the British Pregnancy Advisory Service (BPAS); Marie Stopes International (a charity); and the National Unplanned Pregnancy Advisory Service (NUPAS).
It’s a system that works, and resulted in the termination of 200,608 pregnancies in 2018 for women who live in England and Wales. It is also a service that has routinely been accessed by women in Northern Ireland who – before the recent legislation was passed – faced imprisonment in their home country for aborting a pregnancy, including in cases of rape and incest. Though it is incredibly rare for anyone to be convicted of abortion in the UK, it does happen.
So why, if women are routinely accessing these services in England and Wales (and Scotland whose own government was devolved the responsibility for their own legislation in 2016), is abortion still considered a criminal offence in these countries? And how does this affect the provision of services and the way in which they are delivered?
To understand this, we first need to look at the Victorian law that underpins all of the current legislation relating to abortion services in the UK. The Offences Against the Person Act was passed in 1861 to consolidate existing laws for crimes relating to personal injury. This put abortion in the same position as rape, abducting a child or blowing someone up using gunpowder.
This legislation governed women’s reproductive rights until the 1967 Abortion Act was introduced, which gave them access to safe and legal procedures as a means of preventing unnecessary deaths caused by backstreet abortions. But the act fell short of decriminalising the procedure entirely. Yes, it meant that women could no longer be prosecuted for receiving treatment designed to end a pregnancy at up to 28 weeks of gestation, and neither could the person performing the procedure – but only provided that they were a medical professional, and that the procedure had been signed off by two doctors beforehand. Failure to comply with these stipulations would result in prosecution for both parties, carrying a potential life sentence.
There is no place for the criminal law in abortion care. Laws that dictate when, how and under what circumstances abortion can be provided undermine women’s right to make personal moral decisions for themselves, and they deny doctors the ability to make nuanced decisions about the care they provide
The act was modified by the Human Fertilisation and Embryology Act in 1990 to broaden the conditions and circumstances when abortion is considered legal (and lower the term limit to 24 weeks). Roughly translated, this means that despite widespread cultural progress on the acceptance of abortion as a healthcare issue and not a moral one in the 52 years since the Abortion Act was passed, the corresponding legislation has not been updated to reflect this. The result is that abortion services in England, Wales and Scotland are clunky and unwieldy, causing a range of far-reaching implications for the one in three women who will access them in their lifetime, the medical practitioners charged with providing them and the wider position of women in society.
Past campaigns to change the law, including one led by Diana Johnson, the Labour MP for Hull, have languished in a political system in which Brexit discussions are soaking up the bandwidth of legislators in Westminster. And it’s easy to see why. “The service has been built to accommodate all of the legal hurdles imposed by criminalisation, and therefore it works well on a day-to-day level,” Katherine O’Brien, associate director of communications and campaigns at BPAS, tells me. Alongside this, the conviction rate is low – albeit not zero – meaning that the issue rarely attracts public attention.
“Criminalisation affects the abortion service at every single stage of delivery,” says O’Brien. “It’s hard to imagine what a service would look like if it wasn’t inhibited by bulky legal framework, but it would certainly improve the experience for both patients and medical professionals.” Not only is this process time consuming, but it soaks up the time of doctors, taking them away from patients. “We have doctors who are hired simply to read documents and sign forms,’’ she says. And this is a cost that is passed onto a struggling NHS.
According to Dr Tracey Masters, a spokesperson on abortion for the Faculty of Sexual and Reproductive Health (FSRH), the threat of prosecution and red tape that envelops the abortion process “is a factor that deters younger members of the medical faculty from being trained”. According to BPAS, it also contributes to the high attrition rate (30 per cent) of trainee doctors in this field of medicine, with negative repercussions for patients. O’Brien says that this lack of clinicians means that “women with complex medical conditions must continue pregnancies that they don’t want, which can pose a risk to their health”.
And it doesn’t stop there; more than 10,000 abortion pills were seized in Great Britain by the Medicines and Healthcare Products Regulatory Agency in the three years to July 2018. For many women – particularly those in abusive relationships, in low-income families or who are underage – being able to find time to visit an abortion clinic, which often works on a walk-in basis and can, therefore, experience huge delays and queues to see clinicians, is infeasible. This is especially the case for women who, for whatever reason, would rather that their abortion is performed discretely. Can we really consider a system that doesn’t enable access for society’s most vulnerable fit for purpose?
In an ideal system, we’d have women’s health centres where everything from abortions, miscarriages, cervical smears and mammograms could be carried out in the same place. Reproductive health and the procedures involved are incredibly personal, and this would lead to women having more choice over their experience of abortion
Another benefit decriminalisation and modifications to the law could bring is the harmonisation of services for women having abortions with those who miscarry. The exceptionalisation of abortion prohibits midwives and nurses from performing the procedure as they do with miscarriages. “In England and Wales, current abortion law requires the permission of two doctors to end a pregnancy legally. This prohibits nurse or midwife-led abortion services” says Richard Bentley, managing director for Marie Stopes UK.
This would ensure consistency in the experiences of women facing these experiences, which are medically similar. It would also reduce potential delays, which can, in theory, occur if two doctors aren’t available, says Bentley, and ensure more “joined up care”, says Dr Tracey Masters. The law doesn’t contribute anything to patient safety or quality of care” and shouldn’t this be our priority? Furthermore, decriminalisation would allow for abortion services to be brought under the jurisdiction of the BMA and the NHS rather than dedicated clinics, which are often targeted by anti-abortion protesters. This can result in traumatic experiences both for patients and staff working at the clinics.
“In an ideal system, we’d have women’s health centres where everything from abortions, miscarriages, cervical smears and mammograms could be carried out in the same place.” This would, O’Brien believes, allow the NHS to build a more patient-centric model of care. “Reproductive health and the procedures involved are incredibly personal, and this would lead to women having more choice over their experience of abortion.”
But it’s not just a question of resources. The legal hurdles add delays to delivery of the actual procedure, which, given that the legality of abortion is time-sensitive, can mean that some women are forced to have a more invasive procedure than they had anticipated, or in extreme cases, continue with an unwanted pregnancy. “For some women, who have heart conditions for instance, or suffer from certain allergies, surgery is much more complicated,” says O’Brien. For these women, accessing the service as quickly as possible is critical, because their options are more limited as time goes on.
The law as it stands also limits the ability of researchers to develop improvements to contraception to the benefit of women. For instance, trials in the US are looking into the use of Misoprostol and Mifepristone (two uterine-evacuation drugs) for women who have late periods but with no confirmed pregnancy as a precautionary measure. No such trials can take place under current UK law, though, because anything that disrupts a fertilised egg after implantation is considered an “abortive process”, which would therefore carry the threat of criminal prosecution for those taking it.
Roughly translated, this means that the law is impeding the development of new technology and access to it. This is particularly galling when you consider misgivings about the current range of contraceptive options available for women, like the hormonal pill, which is widely understood to cause severe issues with mood and mental health for some women who take it. All of this also contributes to fragmentation and scarcity of data relating to women’s experience of reproductive health services, which frustrates progress.
Recent moves by the US president, Donald Trump, have shown the damaging impact that a change of government can have on abortion policy, and how fragile progress on these issues really is, in the face of global political shifts towards the far right. Until the UK abortion service is fully decriminalised, it remains at risk, demonstrated by the recent appointment of Nadine Dorries – who has campaigned to reduce the limit for abortion from 24 weeks to 20, and to cut counselling provisions from abortion service providers – to the position of junior health minister in the British government. Last year, Jacob Rees-Mogg, who opposes abortion in all circumstances, including rape and incest, was in the running to become prime minister of the UK. In this context, it’s not hard to imagine a situation in which a change of government or leadership could expose the lack of comprehensive legal protection for abortion services in the UK.
As Dr Tracey says, “abortion is a healthcare issue, and does not benefit from the involvement of criminal law”. At the end of the day, decriminalisation does not mean deregulation, and “abortion would still be governed by the rigorous healthcare laws that ensure all healthcare procedures are performed to the required standards, with the appropriate consent,” Bentley confirms. But it would have far-reaching positive implications for both service users and providers. Cultural attitudes to abortion have come a long way, with the British Social Attitudes report from 2017 finding that 70 per cent of people in the UK support a woman’s right to choose what happens with her body. Campaigns like Doctors for Choice and statements from the Royal College of Obstetricians and Gynaecologists also demonstrate that this support is reinforced by many in the medical community. And as Bentley points out, “decriminalisation reduces abortion stigma by positioning it as a healthcare rather than criminal matter, thus making it easier for women to seek the care they need”.
According to Ann Furedi, chief executive of BPAS, which is leading a campaign for decriminalisation, “there is no place for the criminal law in abortion care. Laws that dictate when, how and under what circumstances abortion can be provided undermine women’s right to make personal moral decisions for themselves, and they deny doctors the ability to make nuanced decisions about the care they provide. The criminalisation of abortion does nothing to make the procedure safer or add to the quality of care – indeed it can have the opposite effect. Decriminalisation of abortion will safeguard services today and ensure we can provide the best possible care in the future.”
Most of all, decriminalising abortion would enable both medical practitioners to focus their energies on improving our knowledge about women’s reproductive health and allow us to “move away from feeling like we need to defend abortion to talking about how to improve the service for the women facing this often complex and emotional experience”, says O’Brien. Numerous studies have shown that facilitating access to safe legal abortions doesn’t increase their prevalence, but it does save women’s lives.
The current system in England, Wales and Scotland exposes women to legal risk that their sexual partners simply do not face. It also means that those who are not au fait with the complexities of the legislation are at risk of unwittingly committing a criminal offence by taking abortion pills outside of the formalised system. We can do much better. Northern Ireland is setting an example for the rest of the United Kingdom – legislators in Westminster must now ensure that women’s rights are respected and protected in the rest of Great Britain.
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