Many people assume that because abortion is relatively accessible in England, it is not a crime. The fact that a woman has now received a 28-month prison sentence for taking abortion pills past the legal time limit shows that this assumption is wrong.
Abortion remains within the criminal law to some extent in almost every country globally, despite the fact that it is a safe and relatively common procedure. Laws can criminalise women and pregnant people, healthcare providers or anyone who helps a woman get an abortion. The sentencing in Poland of activist Justyna Wydrzyńska is one example. In March 2023, she received eight months community service for aiding an abortion seeker.
The 28-month sentence for the 44-year-old mother of three in England reflects the desperate need for a change to the law, in the form of decriminalisation.
In England and Wales, abortion is considered legal when it is performed by a registered medical practitioner, authorised by two doctors and meets certain conditions, such as risk to physical or mental health or risk of fetal anomaly. Abortion can only be performed after 24 weeks gestation in very limited circumstances.
The 1967 Abortion Act determines the situations in which an abortion is not a criminal act and the gestational time limits when one can be performed. The act was written in response to healthcare providers’ concerns about unsafe “backstreet” abortions, rather than out of concern for women’s bodily rights or autonomy.
Lawmakers did not want to make abortion available on request, therefore the sections of the 1861 Offences Against the Person Act which criminalise abortion were not repealed. Sections 58 and 59 make it a criminal offence to administer or supply drugs or use instruments to procure an abortion. The offences carry a maximum sentence of life imprisonment.
While the 1967 Abortion Act applies in Scotland, the Offences Against the Person Act does not. There, abortion is considered a crime in common law, developed by court precedent.
The recent prosecution is not an anomaly. In the past eight years, police in England and Wales have investigated at least 17 people for procuring their own abortion outside the law. The legacy of the 1861 act as a Victorian colonial era law continues to be felt globally, and still applies in countries such as the Gambia, Malawi and Jamaica.
Decriminalising abortion
Northern Ireland is the only region of the UK where abortion is decriminalised. The 1967 act was never extended to Northern Ireland.
After years of activist lobbying and an international inquiry by the UN committee for the elimination of discrimination against women, Westminster repealed sections 58 and 59 of the Offences Against the Person Act in 2019 – but only in Northern Ireland. The Abortion (Northern Ireland) Regulations 2020 now govern abortion access.
But while the law in Northern Ireland is now more liberal, issues remain around access to abortion services. Healthcare providers have had to organise themselves to provide medical abortions, rather than receiving government support and people seeking surgical abortions still have to travel to England.
The World Health Organization (WHO) and international human rights bodies have recommended that, at minimum, abortion be removed from the criminal law and decriminalised around the world.
The WHO defines this as “the complete decriminalisation of abortion for all relevant actors: removing abortion from all penal/criminal laws, not applying other criminal offences (e.g., murder, manslaughter) to abortion, and ensuring there are no criminal penalties for having, assisting with, providing information about or providing abortion”.
This approach recognises that making abortion a crime does not prevent abortion, nor does it protect people from having unsafe abortions. What it does do is impede access and influence how people who have abortions are viewed. Higher levels of stigma are often seen in regions with stricter abortion laws.
Removing abortion from the criminal law does not mean that it is ungoverned, simply that is it governed in the same way as other health procedures. The case of Northern Ireland shows that there is nothing stopping Westminster from repealing sections 58 and 59 of the Offences Against the Person Act. This latest case should make it an issue of political urgency.