Gibraltar has voted to change the territory’s strict abortion ban, which held that abortion was punishable by “imprisonment for life” for the pregnant person and anyone who helped them get an abortion.
Just over half of Gibraltar’s 23,343 eligible voters took part in the referendum on June 24, with 62% voting in favour of reforms to make abortion legally available. The success of the referendum will mean important changes for people in Gibraltar who urgently need access to safe, legal and local abortion.
Originally planned for March 2020, the vote was delayed by the pandemic until June 2021. The referendum asked voters whether to approve a set of reforms to Gibraltar’s Crimes Act, to allow abortion in the following circumstances:
where termination is needed to prevent “grave permanent” injury to mental or physical health
where there is a substantial risk of fatal foetal abnormality
where the pregnancy would risk the life of the pregnant person
and where the pregnancy involves risk to the mental or physical health of the person, greater than the risk if the pregnancy were terminated (no later than 12 weeks into the pregnancy).
Permitting abortion in the case of risk to health, risk to life, and fatal foetal abnormality are relatively common abortion allowances. The last requires more explanation: it permits abortion, up to 12 weeks, based on doctors’ assessment of the relative risk of ending or continuing the pregnancy.
This is the same test established in the Abortion Act of 1967 that regulates abortion in England, Scotland and Wales. That law permits abortion where two doctors certify 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” up to 24 weeks.
In practice, doctors in Britain interpret this provision broadly and use it to permit abortion on request, because carrying pregnancy to full term is almost always more medically risky than ending it. In 2019, 98% of abortions in England and Wales were performed on this ground.
An important note: this is not the same as permitting abortion on request, because it requires abortion seekers to give reasons that comport with the existing legal reasons to end a pregnancy. It also gives doctors the authority to refuse if they judge that the reasons do not satisfy the legal test.
By contrast, Ireland’s new abortion law, passed in 2018, allows abortion on request up to 12 weeks, without the requirement that the abortion seeker provides reasons to explain their decision. As lawyers Fiona de Londras and Mairead Enright have noted, Gibraltar’s new regulations maintain some of the shortcomings of the outdated 1967 Abortion Act.
Gibraltar’s unique political geography has made travel to access abortion especially complicated for residents, but the new law will make safe services available locally for many people. Historically, some have travelled by car or bus to Spain, where abortion is legal up to 14 weeks, while others have gone to England where abortion is legal to 24 weeks, but only if they had the money and documentation to make the long journey. The COVID-19 pandemic, of course, made this infinitely more difficult.
The number of abortion travellers is notoriously difficult to estimate, because anti-abortion stigma means people may conceal their identity or nationality. Nonetheless, based on UK government data, over the last ten years, the number of people from Gibraltar who obtained abortions in England or Wales has varied between zero and six annually. Similar national-level data on Gibraltarian abortion seekers in Spain is not available but a Spanish clinic very close to the border with Gibraltar reported 21 Gibraltar residents sought treatment there in 2019.
As happens elsewhere in Europe, people in Gibraltar who cannot or do not want to travel for abortion obtain safe but illegal medication online. A Gibraltarian pro-choice campaign group reported 29 pill requests in the first half of 2020, when abortion travel was especially impacted by the pandemic.
Abortion has been highly stigmatised among Gibraltar’s small community of 33,000, according to Mara Clarke from the Abortion Support Network, a charity that supports people from Gibraltar (and other countries) travelling for abortion. Some of the network’s clients reported that they feared even being seen buying a pregnancy test in a pharmacy because word might get back to their friends and family. Clarke says being able to “speak openly and publicly” to healthcare providers about abortion in Gibraltar will be transformative.
Gibraltar joins Ireland, Northern Ireland, and the Isle of Man among the European states and territories that have recently liberalised their abortion laws. Reforms in these places are a significant improvement for the reproductive health and rights of people living there.
Nonetheless, some of the limitations of Gibraltar’s reforms illustrate the familiar pattern of “two steps forward and one step back” on abortion rights. For Gibraltarians who need an abortion after 12 weeks, and do not fall into the very narrow circumstances outlined in the law, they will continue to be forced to travel abroad.
After this long-overdue reform in Gibraltar, abortion rights advocates will continue to push for liberalisation in Malta, which maintains a total abortion ban, and Poland, which recently tightened its already highly restrictive law.