A turning point: Abortion’s decriminalisation in the UKCaterina Milo | July 30, 2017
On Tuesday the 27th of June, the British Medical association (BMA) voted in favor of a motion, which “decriminalizes” abortion. This motion follows a political bill proposal (i.e. Johnson’s Bill) started this January in the UK Parliament. Such stances raise concerns on the UK’s official position on ethically sensitive issues like abortion.
In the UK, abortion is legal within the terms of the Abortion Act 1967. This requires two doctors to authorise an abortion under the following conditions:
(a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or
(b)that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or
(c)that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or
(d)that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
Thus, according to sections 58 and 59 of the Offences Against the Person Act 1861, abortions under any other circumstances are unlawful. For example, if a woman obtains abortifacient drugs online and uses them at home to terminate a pregnancy, she commits an offence under the 1861 Act.
The proposed “decriminalisation” of abortion in the UK will repeal sections 58 and 59 of the Offences Against the Person Act. According to the BMA, abortion is a crime under this Act. The Abortion Act 1967 creates an exception, making abortion on licensed premises lawful under specific conditions. The proposed “decriminalisation” follows a discussion within the UK on Johnson’s Bill. Such a bill would “decriminalise” abortion in respect of health professionals administering abortions in clinical practice and for women who procure and administer their own abortion, the BMA has said.
Such proposal is legally inaccurate, insofar as the proponents of the motion (and of the bill) describe abortion as being criminalised. Abortion is not a crime in the UK, unless it occurs outside the (broad) terms of the Abortion Act 1967.
More fundamentally, the proposed decriminalisation will not enhance women’s rights, but rather it will carry some inevitable risks.
Repealing sections 58 and 59 would remove the possibility of redress in cases of unsafe/unlicensed abortions by third parties and in cases of forced abortions. For instance in n R. v Scrimaglia (1971) 55 Cr.App.R. 280 the defendants, who were not medically qualified, performed an unsafe abortion on a woman for thirty five pounds, putting the woman at risk. They were convicted of procuring an abortion and sentenced to three years in prison, while the woman was not prosecuted. A similar conviction, although appropriate, might be harder to be secured if sections 58-59 are repealed.
The limits set out in the Abortion Act 1967 only exist if abortion outside the Act is prohibited. Repealing sections 58 and 59 would remove any limits as to what time or on what grounds an abortion can be obtained. For example, it is currently unlawful to abort a baby on the ground of sex. By repealing sections 58 and 59, there would be no legal prohibition on sex-selective abortions. This was acknowledged by a member of Parliament, Diana Johnson, who said when proposing the bill: “[w]ith decriminalisation, professional bodies that are best placed to take action can continue to prohibit this as a ground for abortion”. This means that if a professional body of doctors wanted to, they could authorise sex-selective abortions without any input from Parliament.
The main reason behind the BMA motion was to keep women from being prosecuted for having an abortion. However, there have been no such prosecution in England and Wales. The one and only case was R v Catt in which a woman was prosecuted for inducing her own abortion at nearly forty weeks. That case is indistinguishable from infanticide, which is illegal in the UK under the Infant Life (Preservation) Act 1929.
The proposal to repeal section 58 and 59 of the Offences Against the Person Act will create more problems than it purports to solve. Women will be at more serious risk of unsafe abortions, and there will be no limits as to what time and on what grounds an abortion can be obtained.
 Rajiv Shah, 2017. Respect Women? Regulate Abortion. [online] Available at: < https://the-quadrangle.com/2017/03/14/respect-women-regulate-abortion/>. [Accessed 21 July 2017].