The campaign to decriminalise abortion across the UK

Reproductive Health (Access to Terminations) Bill

The following Ten Minute Rule Bill was be read by Diana Johnson MP on Monday 13th March 2017. MPs voted in favour of the bill passing to its second reading.

Reproductive Health (Access to Terminations)
“That leave be given to bring in a bill to amend sections 58 and 59 of the Offences Against the Person Act 1861 to decriminalise consensual abortions; and for connected purposes.”

This five-point briefing in support of the bill is issued by the British Pregnancy Advisory Service, bpas, on behalf of the We Trust Women Coalition:

The Royal College of Midwives, Women’s Equality Party, Fawcett Society, Women’s Aid, British Humanist Association (BHA), Maternity Action, FPA, the British Society of Abortion Care Providers, Birthrights, IPPF EN, Catholics for Choice, NUS Women’s Campaign, Lawyers for Choice, End Violence Against Women, Equality Now, Voice for Choice, Southall Black Sisters, Alliance for Choice NI, Green Party, and Doctors for a Woman’s Choice on Abortion.

1. Summary

• In 2017, a woman who ends her own pregnancy without the permission of 2 doctors can be sentenced to life in prison under legislation dating back to Victorian times. This bill would decriminalise abortions up to 24 weeks of pregnancy through the removal of sections 58 and 59 of the 1861 Offences Against the Person Act.
• Decriminalisation would not lead to the deregulation of abortion care. Services would remain subject to a very significant body of regulation which exceeds that applied to other aspects of healthcare provision. However it would enable doctors to provide woman-centred care according to the highest clinical standards, rather than 50-year-old legislation.
• Removing criminal sanctions does not lead to an increase in the abortion rate or later term abortions, not does it encourage women to turn to unregulated providers, as the experience of Canada and jurisdictions of Australia has shown. Removing legal barriers that serve no clinical purpose can allow women to access services earlier. While abortion is an extremely safe procedure, the earlier it is performed the safer it is.
•This bill applies to England and Wales only.

2. What is the current law?

Sections 58 and 59 of the 1861 Offences Against the Person Act (OAPA) made having or providing an abortion a crime carrying a potential life sentence. This piece of Victorian legislation, passed before women even had the right to vote, is still in force today. In line with the punitive values of mid-Victorian Britain, it calls for one of the harshest penalties for unlawful abortion imposed by any country in Europe. Only Ireland, with a maximum 14 year prison term, currently demands a similarly onerous punishment. No other medical procedure in the country is governed by legislation this old, or this out- of-step with clinical developments and the moral thinking of the modern world.

The 1967 Abortion Act did not get rid of the OAPA or decriminalise abortion, but instead carved out therapeutic exemptions to the OAPA and allowed abortion where women and doctors met certain requirements. Although often seen as a victory of the women’s movement, the Act was passed very much in response to the growing public health problem of illegal abortions. It placed decision-making about abortion in the hands of doctors, not women. Abortion is still not a woman’s choice and no woman has the right to end a pregnancy. Instead, two doctors must decide whether they think she should be allowed to end the pregnancy. No other routine medical procedure demands legal authorisation by doctors in addition to the normal requirements of obtaining informed consent.

Abortion has been successfully decriminalised in Canada and jurisdictions of Australia.

3. How the current law harms women

a) The law prevents the development of best possible medical care

When passed in 1967, our Abortion Act was designed to protect women’s health – yet in the 21st Century it is preventing the provision of the best possible medical care.

The Abortion Act requires that two doctors approve each request for a termination. This is a legal requirement which serves no clinical or safety purpose, and is separate to the process of obtaining informed consent, clinical assessment, and safeguarding. No other comparable medical procedure demands legal authorisation by doctors in addition to the normal requirements of obtaining informed consent. This requirement can cause delays for women. This can harm their health as abortion – while extremely safe – is safer the earlier it is performed. On occasion it can even force women to continue pregnancies against their will, seriously jeopardizing their health, as will be discussed below.

Provisions in the Act are also used to prevent women from taking medication for an early abortion at home in their own time, after it has been prescribed by a doctor, as women experiencing miscarriage are currently able to do. Home-use of abortion medication once prescribed by a medical professional is recommended by the World Health Organisation and is standard practice in most countries where abortion is legal. UK law, drafted before safe, medical abortion with pills was a possibility, can require that women attend multiple appointments and by stipulating that pills can only be taken in clinics or hospital, puts women at risk of miscarrying on their journey home. The need for multiple appointments and lack of control over when the pregnancy is passed can create significant barriers to care for women with childcare commitments or difficulties taking time off work – either for financial reasons or concerns about job security. This can in some cases, as will be discussed below, compel women to seek pills online.

The current interpretation of the Act also prohibits the full development of nurse or midwife-led services that are now the model in delivering woman-centred maternity care.

b) Vulnerable women are at risk of prosecution

Any woman in England and Wales who ends a pregnancy without the authorisation of two doctors can face up to life imprisonment. While prosecutions are rare, they do occur – and evidence suggests that increasing numbers of vulnerable women are placing themselves at risk of prosecution.

Data from the Medicines and Healthcare products Regulatory Agency (MHRA) has shown that hundreds of doses of abortion medication were seized on their way to addresses across England, Wales, and Scotland in the past two years as part of Operation Pangea. The MHRA figures also show that numbers of abortion pills seized has grown significantly over recent years, from just 5 pills in 2013 to 375 in 2016 – a 75-fold increase. Given the rising numbers of women using these pills, the need for reform to protect women from prosecution has never been greater.

Abortion may be relatively accessibly for most women, yet women still resort to purchasing medication for a number of reasons. Testimonies released by Women on Web, a not-for-profit online abortion provider which does not routinely send pills to Great Britain, demonstrate why some women feel unable to access legal abortion services.

“I am in the UK but it’s impossible for me to get to a clinic due to having a disabled daughter who I can’t leave and I have no one else I can trust. I’m in a complete mess, clinics said I have to leave my daughter at home but I have no one else at all to have her, due to her disabilities a nursery can’t have her. I’m 1 week late. I’m in good health and have no allergies or medical conditions. Please I’m really desperate for help.”

“I live in [a rural area in England] and have no friends and the relatives I have I am not close to. I was hoping to have a termination in the comfort of my own home without judgmental eyes and without worrying about my husband knowing. I fear what would happen if he did. I have 3 children and my 3rd is 11 months old. I considered an abortion when he was conceived and had a terrible pregnancy and still suffering from post natal depression. I will try to seek help, anonymously if possible. I’m in great need of help.”

“I have visited my GP last week and he referred me to my local NHS service. They can only offer me a medical abortion with three visits to the hospital on separate days. On the second visit I am expected to stay there all day. I work full time and have two young sons so getting all that time off and childcare is going to be very difficult, probably impossible.”

It is clear that for some women the barriers to clinic-based treatment feel insurmountable. These are women in desperate and difficult circumstances. They are not criminals deserving of life imprisonment and we should not support a legal framework which threatens just that.

There is no evidence from countries where abortion has been decriminalised that removing criminal sanction “encourages” women to seek abortion from unregulated providers, just as women do not generally look to unregulated providers for any other medical care. Rather, by removing the barriers to abortion, it makes it less likely that women would need to seek help from unregulated providers.

Unregulated individuals who provided women with abortions could face punishment under existing criminal law for the sale of prescription medications, in the case of medical abortion, and assault, in the unlikely case of an unregulated surgical abortion. This bill would not change that.

c. Women with complex medical conditions are forced to continue with pregnancies as they are unable to find doctors willing or able to treat them.

The fact that abortion continues to sit in the criminal law has a chilling effect on medical practice and doctors’ willingness to authorise abortions, and the threat of prosecution that is unique to abortion can deter doctors from wanting to enter this fundamental area of women’s healthcare. As a result of the lack of doctors willing or able to authorise and perform abortions, on a regular basis, women with complex medical must continue pregnancies they do not want which can pose a risk to their health.

In England & Wales, 70% of NHS-funded abortions are performed in the not-for-profit independent sector. However, many women with co-morbidities, such as uncontrolled diabetes, epilepsy, blood disorders, strokes, and high BMI cannot be treated in a stand-alone community clinic, but must be managed within a hospital setting where there is swift access to back-up care and specific clinical expertise in the event of an emergency.

‎The British Pregnancy Advisory Service’s (bpas) Specialist Placement Team is, on average, unable to find hospital-based treatment for two women a month. As bpas only sees a third of all women presenting for abortion care across the UK, the numbers of women overall will be higher‎ – and it is reasonable to assume that every week a woman with medical conditions is unable to get the abortion she needs.

Here are just two examples from case notes of women who contacted bpas for whom no appointment could be found.

18-year-old who has recently left foster care
22 weeks pregnant
Thyroid condition (risk of life-threatening condition developing during pregnancy) with high blood pressure
No appointment available

31 year-old woman receiving daily treatment for blood clot on lung and asthma
21 weeks pregnant
4 children already (not in her custody)
Current partner abusive
Wants to prove to social services she is stable and in control of her life
No appointment available

It is unacceptable that women in 21st Century Britain – who meet the criteria of the Abortion Act – are compelled to continue pregnancies they do not want and which pose a significant risk to their health because doctors feel unable to authorize terminations or are deterred from training in this field because of our current legal framework.

4. The impact of decriminalisation

a) Regulation

Decriminalising abortion would not lead to the deregulation of abortion services. Abortion provision is already highly regulated and our current law does nothing to make the procedure safer or improve care for women, indeed, as previously noted – it can have the opposite effect.

Outside of the criminal law, clinics are inspected by the Care Quality Commission (CQC), and healthcare workers are bound by their professional bodies, the General Medical Council (GMC) and the Nursing and Midwifery Council (NMC). Healthcare teams work to detailed, evidence-based guidance produced by the Royal College of Obstetricians and Gynaecologists (RCOG).

If specific criminal sanctions relating to abortion were removed, abortion services would remain subject to the very significant body of regulation that governs all other aspects of health care provision, and negligent medical professionals would still face professional sanctions, as well as civil and criminal charges, for providing sub-standard care. Any clinic which does not meet those regulations can be closed down.

b) Non-consensual abortions

There is already a significant body of legislation which would cover non-consensual terminations, including cases of assault which result in the ending of a wanted pregnancy. It would not make sense to continue to criminalise doctors and women in order to ensure perpetrators of violence against women can be prosecuted. Rather if there are any concerns that this bill would inhibit the ability to impose tough sentences on such criminals, parallel changes could be introduced to strengthen the law in this regard.

c) Abortion rates and time limit

There is no evidence that decriminalisation would lead to an increase in the number or rate of abortion. No woman aspires to experience an unwanted pregnancy and undergo an abortion. Our abortion rate is stable, and women try very hard to avoid unplanned pregnancy. Decriminalisation would not change that. Other jurisdictions in Canada and Australia have removed abortion from the criminal law without experiencing an increase in the rate of abortion.

The current bill would have no impact on the abortion time limit. The Infant Life (Preservation) Act 1929 creates a 24-week time limit, with the Abortion Act 1967 would continue to provide exemptions post-24 weeks in cases of severe foetal anomaly or if the woman’s life was at risk. This would not change if this bill became law.

However, even if abortion was decriminalised entirely, there is no evidence removing criminal sanctions leads to an increase in later terminations. Prior to 1990 in Scotland there was no abortion time limit. Despite the legality, there was not a greater proportion of late term abortions performed. Women only request later abortion in exceptional circumstances.

5. Support for decriminalisation

Public opinion in Britain supports women’s access to abortion, and this sentiment is also reflected in the views of politicians. Polling of 104 Members of Parliament conducted by YouGov for bpas found that the majority (65%) of MPs agree with the statement: If a woman does not want to continue with her pregnancy, she should be able to have an abortion, and only a minority (17%) support imprisonment for women who end a pregnancy without legal authorisation.

Fifty years after the 1967 Act was passed, it is time to bring women’s reproductive healthcare into the twenty-first century and remove abortion from the criminal law. By doing so we would remove the clinically unnecessary legal barriers to treatment that make in-clinic care impossible for some women, and protect those who need to use online pills from prosecution and punishment.

We urge all Members of Parliament to support the Reproductive Health (Access to Terminations) Bill on Monday 13th March.