At the end of May, Ireland is set to become the latest European country to legalise abortion. A referendum to repeal the country’s 8th Amendment could lead to the end of restrictive laws which, according to the United Nations, violate women’s human rights. That would leave just two European nations where abortion remains illegal: Malta and Northern Ireland. But there are three other nations in Europe that retain highly restrictive laws which criminalise abortion unless performed under certain circumstances. And one of those is Great Britain.
There is a widespread assumption in this country that the 1967 Abortion Act, part of Roy Jenkins’s raft of reforms which created the “permissive society,” decriminalised abortion in England, Scotland and Wales. That’s not strictly accurate. The 1967 Act provided exemptions under which women would not be prosecuted according to the 1861 Offences Against the Person Act.
The fact that abortion remains governed by a Victorian criminal law makes us an outlier from the rest of the developed world. As Clare Murphy at leading abortion services charity British Pregnancy Advisory Service (BPAS) explains, “even in countries where abortion is restricted, it is highly unusual for women’s reproductive rights to be so firmly placed in criminal law.”
So, what do the current laws look like? In Britain, women can access an abortion up to 24 weeks. Up until 1991, the upper-time limit was 28 weeks. That’s liberal compared to countries like France and Italy, where abortion is available “on demand” up to 12 weeks and under restricted conditions afterwards.
But unlike those countries where abortion is not governed by criminal law, in Britain there are strict guidelines on how and where any termination can be performed. For example, in England and Wales women cannot take advantage of new technologies and use an abortion pill in their own home. (Introduced in the early 1990s, the method can be used up to 10 weeks, and in effect induces an early miscarriage, meaning no surgery is required.)
Any woman who does so and is successfully prosecuted could, theoretically, face life imprisonment. On International Women’s Day 2017, Northern Irish police officers carried out a number of raids looking for abortion pills in activists’ homes and offices. (None were found.)
Furthermore, unlike many of our European neighbours, we don’t have “abortion on demand.” A woman or girl must gain the permission of two doctors to access a termination—and those doctors have to state that continuing the pregnancy will cause the mother to “suffer physical and mental distress.”
In many ways, this final aspect of the law is just a technicality; but technicalities can trip people up, particularly if a doctor has their own agenda or the patient makes an awkward supplicant. Very few women are flat-out denied an abortion by their doctor. But sometimes the issue isn’t two doctors saying no, it’s the possibility of seeing two doctors at all.
The recent NHS crises have led to longer waiting times for women seeking abortions. Uneven funding and a health service under strain have created a postcode lottery where some women with complex medical needs are unable to access abortion services before the 24-week limit.
Instead, they are forced to either have later, more complicated procedures, or even continue with unwanted pregnancies. A recent report by BPAS revealed that at least one woman a week is denied abortion care due to an overstretched health service.
Worse, US-style anti-abortion campaigners are trying to make it harder for women in Britain to access terminations by picketing clinics where the procedure is performed. Ealing Council last month voted unanimously to introduce a buffer zone around a clinic, in order to prevent anti-abortion protesters from harassing women. For women living in Northern Ireland, the picture is more desperate. Abortion is criminalised in all but exceptional circumstances. The Democratic Unionist Party, the Conservative Party’s parliamentary partners, remains staunchly committed to upholding the existing law.
Illegal in six UK counties, under threat and inaccessible in others, it would be easy to feel pessimistic about the state of abortion rights. But right now, pro-choice campaigners are in fact optimistic. They believe the time is right for full decriminalisation.
For Clare Murphy at BPAS, the reason towards this move is clear. For a long time, pro-choice campaigners have been “constantly defending the 1967 Act against further restrictions—for example, the 2008 attempt to reduce the upper time limit. But more and more we’ve started to feel we’re defending an Act that is no longer fit for purpose. Why not start asking for a female-centred framework that is right for women in the 21st century?”
There are practical reasons for decriminalisation—including the growing number of women risking prosecution and buying pills online. Furthermore, there is evidence that decriminalisation actually decreases the number of terminations. This has been the case in Portugal, which decriminalised abortions up to 10 weeks in 2007. However, for Murphy and many pro-choice campaigners, it’s also a matter of principle.
“It’s 2018—shouldn’t we be starting from the principle that a pregnant woman knows what she wants for her own body?” Murphy asks. “That a woman can decide for herself if she wants to continue with or end a pregnancy?” There is also a growing medical consensus behind the cause: the British Medical Association, Royal College of Nursing, and the Royal College of Obstetricians and Gynaecologists all support decriminalisation.
Decriminalisation can also have a positive impact on women’s health and well-being. The current restrictive laws mean that a woman must go to the doctor or a clinic to get an abortion pill, take it on the premises, then return between 24-48 hours later to take the second one. Because it is illegal to take the second pill in her own home, women risk miscarrying while travelling back from the clinic. It’s not uncommon to hear stories where women have miscarried on the bus or train, or in a public bathroom.
If women are legally allowed to take the second pill in their own home, they would have much more control over the procedure and be able to miscarry in a private setting. This would be more in line with what many doctors and clinicians want—after all, they have a duty of care to their patient’s well-being. This is the case in Scotland, where abortion law is devolved. In 2017 the Scottish Parliament decided to allow women to take abortion pills in their own home.
Pro-choice campaigners are not naive. Despite Britain being a broadly pro-choice nation, there remains opposition to liberalising abortion laws, especially on the right of the political spectrum. Since the 2017 election, we’ve seen Tory favourite Jacob Rees-Mogg state that abortion is wrong in all circumstances, including rape; Conservative Vice Chair for Women Maria Caulfield call for a debate to reduce the upper time limit; and a supply and confidence deal with the anti-choice DUP.
But the expected law change in Ireland, which would leave the UK—and especially Northern Ireland—lagging behind its traditionally socially conservative neighbour, has given campaigners fresh impetus. “When we launched the decriminalisation campaign we thought it would take time for people to get why it’s needed,” Murphy tells me. “It’s been brilliant to see how many have come on board with the idea that abortion can be a clinical and not a criminal issue. Now it’s about finding appropriate legislative opportunities to pursue it.”
