The Reality of Abortion Rights in England
In June 2022, the US Supreme Court ruled in favour of Mississippi’s prohibition of abortion after fifteen weeks and overturned the case of Roe v Wade. The Supreme Court had been considering the case of Dobbs v Jackson Women’s Health Organization which challenged a law enacted by Mississippi, criminalising most abortions after 15 weeks of pregnancy. This law was a direct challenge to Roe v Wade and therefore, by ruling in favour of the state and approving the law, the Court effectively ended the constitutional right to abortion in the US.
The decision has sparked outrage across England with many appalled that one of the world’s most advanced countries has taken a significant step backwards in the fight for women’s reproductive rights. However, contrary to popular belief, there is no inherent right to abortion within English law.
The Legality of Abortion in England
Despite an overwhelmingly pro-choice population, England still criminalises abortion. Whilst many believe the 1967 Abortion Act legalised abortion, that is simply incorrect [1]. The Act partially decriminalised abortion in England, Scotland and Wales, so long as specific conditions are met, such as confirmation from two medical practitioners that the pregnancy has not exceeded 24 weeks [2]. The framework for legal abortion is governed by section 1 of the Act with subsection 1(a) permitting a termination if the continuation of a pregnancy, not exceeding 24 weeks, would involve greater risk than termination. Due to scientific advancements, the ‘statistical argument’ asserts that undergoing an abortion is always considered to be safer than carrying the pregnancy to term. This ensures anyone requesting a termination, prior to 24 weeks gestation, should satisfy the test under 1(a).
However, England’s legal framework still provides that abortion is a crime, by virtue of the Offences Against the Person Act. Section 58 of the Act states that those who administer drugs or utilise instruments to procure an abortion have committed a criminal offence. Yet, whilst police investigations into illegal abortions are rare, there are currently two women awaiting trial in England. Both women allegedly took the drug misoprostol (one of the two pills doctors routinely prescribe to terminate a pregnancy) and face charges that carry a maximum sentence of life in prison [3]. The Royal College of Obstetricians and Gynaecologists has repeatedly called on ministers to legalise abortion, expressing that there is absolutely no public interest in sending vulnerable women to prison for terminating pregnancies. They indeed suggest that these prosecutions will only serve to deter women from seeking help, pushing more women into unsafe and underground options [4].
Decriminalisation:
The Offences Against the Person Act was implemented in England during the Victorian era, before the invention of the lightbulb, and at a time when women were unable to vote. Over 150 years later, and with significant scientific developments, abortion has progressed from a risky surgery to a highly effective and low-risk procedure. Unfortunately, the law has not changed to reflect this. The legislation governing abortion is archaic and although in practice very little would change if abortion were decriminalised, it would allow women to control their own lives and bodies. Although the majority of women are able to receive a termination under the defences provided by the Abortion Act, this should not be seen as a sufficient justification not to abolish a legislation that is outdated and has no purpose [5].
Recent Legal Developments
That said, despite no action being taken by ministers to decriminalise abortion, arguably England’s laws are becoming increasingly liberal. In a recent press release, MP Maggie Throup announced that provisions allowing for early telemedical abortions at home would be made permanent from the 30th of August 2022 [6]. This move follows the temporary introduction of the ‘pills by post’ service during the Covid-19 pandemic to ensure people could access the healthcare they needed in a safe manner, without needing to visit a clinic. Originally the government announced that England would be returning to the pre-pandemic system at the end of August but after an outcry from abortion providers and medical groups, the measures have now been made permanent.
Whilst this decision has been welcomed by pro-choice activists it is also importantly supported by medical evidence. The World Health Organisation recommended in their recent guidelines that for abortions under 12 weeks gestation, alternatives to in-person care should be offered including “self-administration of abortion medicines outside of a health-care facility and without the direct supervision of a trained health worker” [7]. These measures grant people more choice in how they access abortion services and are both safe and effective according to medical research [8]. Therefore, even though there is no right to a termination in England, changes are being made to make abortions more accessible.
Nevertheless, decriminalisation remains the ultimate aim for many medical institutions including the Royal College of Obstetricians and Gynaecologists and the British Pregnancy Advisory Service. Their eventual hope is that abortion will be removed from the criminal law sphere and will be governed solely under general medical regulations, like any other procedure [9].
………………………………………………………………………………………………………………………………………..[1] BMJ, ‘We’re horrified by the rejection of Roe v Wade—but abortion is not a universal right in the UK’ https://doi.org/10.1136/bmj.o1945 (Published 17 August 2022)
[2] Charlotte Proudman (The Guardian), Think abortion is legal in Great Britain? Ask the two women currently facing life sentences’ https://www.theguardian.com/commentisfree/2022/aug/19/abortion-legal-great-britain-women-life-sentences-roe-v-wade
[3] Al-Othman and Al-Khalaf, ‘British women taken to court over abortions’ (Times, 17 July 2022) https://www.thetimes.co.uk/article/2d9c2058-0501-11ed-bcb4-08dbdb6c5639
[4] Charlotte Proudman (The Guardian), Think abortion is legal in Great Britain? Ask the two women currently facing life sentences’ https://www.theguardian.com/commentisfree/2022/aug/19/abortion-legal-great-britain-women-life-sentences-roe-v-wade
[5] S. Sheldon ‘The decriminalisation of abortion: an argument for modernisation’ (2016) 36 Oxford Journal of Legal Studies 334, 356
[6] Department of Health and Social Care, ‘At home early medical abortions made permanent in England and Wales’ https://www.gov.uk/government/news/at-home-early-medical-abortions-made-permanent-in-england-and-wales
[7] World Health Organisation, ‘Abortion Care Guidelines’ (human reproduction programme, Geneva: WHO, 2022) p98
[8] World Health Organisation, ‘Health worker roles in providing safe abortion care and post-abortion contraception’ (Geneva: WHO, 2015), p. 41.
[9] BMJ, ‘We’re horrified by the rejection of Roe v Wade—but abortion is not a universal right in the UK’ https://doi.org/10.1136/bmj.o1945 (Published 17 August 2022)
