Decriminalisation of Abortion

 

In Favour of Decriminalisation of Abortion in the UK

 

 

 

Introduction

            It has been 50 years since the 1967 Abortion Act was passed. Although the abortion law has proven useful to women, its provisions have come under constant scrutiny on grounds that they are out of tune with the “best practice in abortion care” and the realities of women's lives.  On average 200,000 abortions are procured in Britain every year, meaning that out of every three women, at least one of them with have an abortion in the course of her lifetime. Although the National Health Service (NHS) funds 98% of abortions in Britain, these are usually done at the recommendation of a recognised medical practitioner. Nevertheless, abortion in the UK is only legal if procured under strict medical conditions; otherwise, it remains unlawful. Following the passage of the 1861 Offences Against the Person Act, abortion became a criminal act. This is a flawed and archaic legislation that was crafted in the Victorian era when women did not even have the right to vote. While the 1967 Abortion Act somewhat eased this archaic act, abortion can only be procured under medical grounds. The woman has no say in abortion and still relies on the doctor to make such a decision. The premise of this essay is to argue in favour of a reform of the archaic legal framework of abortion law in the UK, to ensure that it is in tune with the moral values and best clinical practice of the 21st century.     

Current Law on Abortion

The 1861 Offences Against the Person Act (OAPA)

            This particular legislation is applicable in Northern Ireland, England and Wales. Procuring an abortion in Scotland is still an offence based on common law. The specific parts of this legislation relevant to abortion are sections 58, 59, and 60. Section 58 deems it an offence for a pregnant woman to administer an abortion and hence unlawful. If a woman is caught having procured an abortion or attempting to unlawfully procure one, she is guilty of such an offence and risks being jailed for life. Section 59 states that anyone who unlawfully procures or supplies any instrument or noxious substance to aid in the unlawful termination of pregnancy shall be deemed guilty of such an offence, and risks serving a jail sentence of not more than five years. Section 60 states that a person who tries to conceal the birth of a dead child, be it that the child died before, during, or after delivery, is liable to being charged for such a misdemeanor and could serve a jail sentence of no more than two years, based on the court's discretion.

These provisions were passed rather silently, both outside and inside parliament. This was largely the case because there was no mechanism in 1861 to discuss the issue of sexuality in an objective and open manner. In addition, the UK parliament at the time was largely an all-male affair and as such, assumed a paternalistic approach to the issue. Since then, these archaic provisions have remained largely unchanged, save for some minor alterations in the available sentence.  The provisions do not provide room for therapeutic abortion, and neither do they offer any distinction between a third-party abortionist and self-induced miscarriage.  Moreover, the OAPA makes no explicit variations between abortions carried out earlier in pregnancy and those conducted later in pregnancy. In this case, the law considers a procedure that happens even 6 days following implantation as liable for punishment.

The penalties provided by s 58 are among the worst in the entire Europe, which is in keeping with the punitive values characteristics of mid-Victorian Britain. However, there has been a considerable social change in society ever since, but these archaic provisions are still relevant. S 60 also carries a closely related offence to s 58, in that concealment of birth is deemed to carry similar weight to a more serious offence such as the illegal procurement of an abortion. From a moral context, concealment of birth ought to carry a lesser penalty.  

The 1929 Infant Life Preservation Act

            This statute, applicable in England and Wales, was an improvement on the OAPA in that it drew a difference between an abortion procured early in pregnancy and one procured late in pregnancy. The Act deems it illegal to knowingly destroy 'the life of a child capable of being born alive... before it has an existence independent of its mother. The only exception to this particular provision is if an abortion has been procured in good faith with the objective of saving the life of a mother. The goal of this statute, therefore, is not meant to regulation abortion, but to close a legal gap in the OAPA whereby a person deemed to have had a hand in the death of an infant is not be guilty of murder or unlawfully having carried out an abortion should the law establish that child in question was not yet 'a person in being' by virtue of its inability to exist quite apart from its mother.  The Act further aided in the interpretation of the OAPA by considering that in certain circumstances abortion may be regarded as being lawful, especially where the mother’s life is at stake.

The 1967 Abortion Act (AA)

            This Act is applicable in three jurisdictions: Scotland, England and Wales. It provides in-depth therapeutic objection to prosecution for abortion-related offences.  Under the AA, an individual cannot be held liable for abortion-related offences in the event that the pregnancy is not more than 24 weeks old; in case the abortion has been procured on the advice of registered medical practitioners; where two registered medical practitioners are of the view that retaining the pregnancy poses a danger to the mental or physical well-being of the mother; or if it has been established by a qualified medical practitioner that if the woman carries the pregnancy to term, this would endanger the life of the woman in addition to subjecting the unborn child to significant harm such as serious mental or physical handicap. Today, most legal terminations are procured by a registered medical practitioner at or below 24 weeks, and when it has been established that carrying the pregnancy to term is far riskier than if it is terminated. Unlike the OAPA, the AA permits the extensive use of clinical discretion.  

            This provision, along with advances in technology, has made modern pregnancy termination procedures far safer than having to carry a pregnancy to its full term. This offers the medical practitioner a platform to further argue in favour of terminating a pregnancy on grounds that it presents a higher risk to the mother’s health and well-being.  The Act, therefore, acknowledges doctors as key gatekeepers in access to abortion services.  However, the Act places limitations on the location where abortion services are offered, who can perform or authorise procedures, and also spells out notification requirements. These limitations were intended to deal with the issue of backstreet abortions that were rampant in the UK in the late 1960s. However, since then, the Act has only undergone minor amendments, effectively making abortion lawful if retaining the pregnancy leads to significant anomaly for the fetus and mother.

Since the passage of this legislation, the number of lawful abortions in the UK has increased significantly with nearly 200,000 procedures per year now being conducted. Consequently, lawful abortion is the most sought-after gynecological procedure by women of reproductive age from diverse social and economic settings. Mortality due to abortion is almost non-existent in the UK unlike other parts of the world where unsafe abortion is rampant. The NHS also funds nearly 98% of all such procedures. 

            The AA, like the OAPA before it, is outdated. It enforces various clinically indefensible limitations on women who wish to procure an abortion. The Act recognises the opinion of two doctors, as opposed to that of the pregnant woman, in deciding in there is sufficient justification for an abortion. The Act still retains a paternalistic approach to matters of sexuality evident during the Victorian era when women had no voting rights in that a woman has no say on whether they can have an abortion. This runs contrary to the clarion call for equality of women in all spheres of their lives, not to mention that it is in conflict with other clinical procedures.

Time to undertake statutory amendments on laws on abortion

            It has been nearly a century since the British parliament granted women the right to vote. While women have continued to enjoy increased freedom in other avenues of their social, political, and economic lives, they remain mere spectators on decisions regarding the lawful procuring of an abortion. The same archaic provisions that were crafted during the mid-Victorian era when parliament was an all-male affair still regulate abortion services in England, Wales, and Northern Ireland. Although these laws have undergone minor alterations over the years, they do not reflect the clinical values and technological advances of the 21st century. For example, 50 years ago, most of the abortions required technically demanding surgical techniques and were hence risky to perform. However, advances in science and technology have made it possible to perform abortions by low-risk and high-effective procedures (67). It is important therefore that the legal framework relating to abortion in the UK undergo fundamental reforms so that it remains in tune with the current clinical practice.   

            Thanks to the existing abortion laws in the UK, medical practitioners are still charged with the responsibility of making ethical and social decisions that ought to be made by patients themselves if the legislation had kept pace with advances in social and ethical changes in the 21st century.  Moreover, the restrictions put in place by the AA were meant to curb the high level of backstreet abortion procedures are now a thing of the past, given that we now have legal and safe abortion services funded by the state. Although the concealed concerns have mostly faded, the legal framework around which they are based still has a considerable impact on the manner in which abortion services are performed. Concerns have also been raised by human rights groups that the inconsistent, archaic and overlapping nature of UK abortion law places unjustified limitations on best practice, not to mention that it violates international human rights commitments. It is important however to acknowledge the good work done by service providers to weed out the limitations in the existing legislation, with the result that the mainstream healthcare services offer abortion services on request and if there are strong grounds to show that carrying the pregnancy to term would put the physical and mental health of the mother at risk, or the child if born would be subject to considerable mental and physical disability.  For this reason, abortion laws should be updated so that they are in tune with modern moral values and current medical practice.  Decriminalisation would transfer the responsibility of making social and legal decisions about abortion, a role currently played by medical doctors. This responsibility would also entail women having to weigh the ethical dilemma of terminating the pregnancy. By reforming the abortion law, this could be an acknowledgement that women have the capacity to make moral decisions that affect them just like their doctors.  

Conclusion

            Today, nearly 200,000 abortions are conducted every year in the UK, with one in three women likely to procure an abortion in their lifetime. The passage of the AA in 1967 made it possible to lawfully procure an abortion on condition that two doctors have established that carrying the pregnancy to term would risk the health of the mother and that of the infant. The legislation also led to a significant reduction in backstreet abortions, through the adoption of safe abortion services conducted by qualified medical practitioners. Despite these commendable strides, the legal framework that informs the abortion law has not changed much since 1861 when the OAPA was incepted. Considering the dramatic shift in social and ethical values that have occurred since then, abortion laws appear outdated to modern eyes. The woman still has no say in matters regarding the termination of her pregnancies, a paternalistic approach that is largely rooted in the mid-Victorian era law.  Decriminalisation of abortion law in the UK would act as an acknowledgement that women have the capacity to make serious social and ethical decisions in terms of procuring an abortion.  However, abortion services would still be subjected to the same medical and legal legislation that oversees other medical practices.

 

 

 

Bibliography

Books

De Cruz, P, Comparative Healthcare Law (Routledge 2013) 84

Great Britain: Parliament: House of Commons: Science and Technology Committee, Scientific developments relating to the Abortion Act 1967: twelfth report of session 2006-07, Vol. 2: Oral and written evidence, Volume 2 (The Stationery Office 2007) 55.

Potts, Malcolm, Peel, J and Diggory M, Abortion (Oxford Univiersity Press 1977) 403

Stauch M, Wheat K & Tingle, J, Text, Cases and Materials on Medical Law and Ethics (Routledge 2011) 378

Taylor S, Crime and Criminality: A Multidisciplinary Approach (Routledge 2015) 672

Journal articles

Centre for Maternal and Child Enquiries (CMACE), ‘Saving Mothers’ Lives. Reviewing Maternal Deaths to Make Motherhood Safer: 2006–2008’ 118 (2011) BJOG 203.

Nebel, K and  Hurka S, ‘Abortion: Finding the Impossible Compromise’ in C Knill, C Adam and S Hurka (eds), On the Road to Permissiveness? Change and Convergence of Moral Regulation in Europe (OUP 2015).

Norrie, K,’ Abortion in Great Britain: One Act, Two Laws’ [1985] Crim LR 475.

Sheldon S,’The Decriminalisation of Abortion: An Argument for Modernisation’ 36(2016) Oxford Journal of Legal Studies 334.

Sheldon S, ‘The Regulatory Cliff Edge Between Contraception and Abortion: The Legal and Moral Significance of Implantation’ 41 (2015) J Med Ethics 762.

Case Laws

G Williams, The Sanctity of Life and the Criminal Law (Faber and Faber 1958) 24.

Acts

AA 1967, s 2.

ILPA 1929, s 1(1).

J Keown, Abortion, Doctors and the Law (CUP 1988) 167

R v Bourne [1939] 1 KB 687 (CA).

Websites

British Pregnancy Advisory Service,’ Abortion: Trusting women to decide, and doctors to practise’ (2015)

CEDAW ,’Committee on the Elimination of Discrimination against Women (CEDAW Committee), General Recommendation 24, Women and Health’ (1999)

Department of Health,’ Abortion Statistics, England and Wales: 2014’ (2015) 

Hopkins, S,’Abortion ‘Should Be Removed’ From Criminal Law, Campaign By British Pregnancy Advisory Service Urges’ (2016)

Royal College of Midwives,’ Position Statement: Abortion’ (2016). 

Royal College of Obstetricians & Gynaecologists (RCOG), ‘The Care of Women Requesting Induced Abortion’ ( 2011)