Decriminalising Abortion in Scotland: Why the Debate?
Dr Lynsey Mitchell is an Abortion Rights Executive and Abortions Rights Scotland Steering Group Member.
In June 2022 the US Supreme Court overturned its decision in Roe v Wade that the US constitution protected a woman’s right to abortion on demand in the first trimester. This decision was much anticipated with several US states having passed anticipatory legislation that triggered abortion bans from the day of the judgment. This attracted much media attention inside and outside the US and refocused attention on reproductive rights internationally.
The recent conviction and custodial sentencing of a woman in England for illegally procuring her own abortion has focussed the media spotlight on reproductive rights in the UK and amplified the calls from the pro-choice lobby to decriminalise abortion in the UK. However, much like in the US, where abortion regulation varies vastly by state, there is no uniform criminal regulation in the UK. Abortion remains criminalised in England and Wales under the Offences Against the Persons Act 1861. This legislation dates from Victorian times and calls for ‘penal servitude’ as punishment. Due to Scotland retaining its own legal system, the 1861 statute does not apply to Scotland. Instead, in Scotland, abortion is criminalised under the common law.
The criminalisation of abortion reflects the fact that previously, abortion was a difficult surgical procedure. If carried out by someone unqualified or in unsanitary conditions, there was a very real risk of death. The compromise enacted by David Steel’s Private Member’s Bill created a defence to this crime and so allowed for abortion under very strict circumstances, ensuring they would take place on medical premises and under the direction of a doctor. The UK Parliament acknowledged what the UN still makes clear today — bans on abortion do not stop abortion, they only led to unsafe abortion. The Act achieved its aims though, with the proportion of maternal deaths due to abortion dropping from 25 percent to 7 percent in the years immediately following the introduction of the Act.
The Abortion Act 1967 was never extended to Northern Ireland, meaning that until recently, Northern Ireland had one of the most restrictive abortion regimes in Europe. The lack of abortion access in Northern Ireland was routinely highlighted by UN human rights bodies as infringing women’s human rights. The United Nations Committee on the Elimination of Discrimination Against Women called on the UK Government to amend the legislation that criminalised abortion in England, Wales, and Northern Ireland. Amendments pushed through by individual MPs eventually saw abortion decriminalised in Northern Ireland in 2019, although effective access to abortion remains an issue in Northern Ireland.
While the 1967 Act provided for abortion in England, Scotland, and Wales, it did not decriminalise abortion and abortion remains a criminal offence if carried out in a way that does not adhere to the legislation. Decriminalisation would mean finally removing abortion from the realm of criminal law entirely but continuing to regulate abortion in the same way as other healthcare. The result would be to remove the threat of prosecution from women and abortion providers and permit wider amendments to the current abortion framework.
In England decriminalisation would occur by repealing sections 58 and 59 of the Offences Against the Persons Act 1861. In Scotland the situation is more complex. It would require legislation to make clear that abortion is no longer a common law crime. Since there is no statute criminalising abortion, there is a debate over the full extent of what the law criminalises in Scotland. A recent Holyrood reporter article, stated that: “Prior to 1967 there was no legislation in Scotland so abortion was never rendered a crime.” It is true that the flexibility of the common law meant that therapeutic abortion (usually understood as those deemed necessary, and performed, by a physician) was not criminalised in the same blanket fashion as in England. Certainly, there is agreement that Mr Bourne, the surgeon who instigated his own prosecution to clarify the law after carrying out an abortion on a thirteen-year-old rape victim, would never have been prosecuted in Scotland. The common law requires that it be established that an abortion is carried out with ‘wicked intent’ and so an abortion done for therapeutic reasons would not be understood as criminal and so generally did not attract prosecution.
However, it is an oversimplification to say that abortion has never been a crime in Scotland. In the months prior to the 1967 Act coming into force, Dr Ross was convicted of abortion. He was an Edinburgh doctor with a reputation for providing abortions to young unmarried women. He charged around one hundred pounds for his services. Even though Ross was a qualified doctor, he was convicted and sentenced to four years in prison, perhaps because he was offering abortion on demand. It is also anathema to claim that there is no need to decriminalise abortion in Scotland. While it is true that prosecutions in Scotland were always rare and there have been no recorded prosecutions since the 1967 Act came into force, the fact that a branch of routine healthcare remains under the guise of the criminal law casts a shadow over abortion and differentiates it from other healthcare. This contributes to the stigma around abortion.
The World Health Organisation calls for decriminalisation of abortion and states that removal of criminal sanctions for abortion decreases stigma around abortion and reduces barriers around accessing abortion. While women and pregnant people in Scotland are not subject to the blanket bans on abortion seen in some US states and in other countries, healthcare providers are clear that the current law hampers access to abortion and delays the process. Dr Audrey Brown, former NHS Abortion Care consultant, stated that the procedural requirements necessary to satisfy the provisions of the 1967 Act “can lead to delays in the abortion, until the two signatures are in place. It has been shown that women in remote and rural areas in Scotland are particularly affected due to smaller services with fewer medical staff… Any delay can increase risk of an otherwise very safe procedure.” Amending the criminal law in relation to abortion would allow for much wider reform of abortion procedure that reflects the modern reality of abortion – whereby over 98 percent of abortions are performed medically and before twelve weeks. The need to have two doctors’ signatures and to have mandatory reporting of abortions no longer makes sense. Decriminalising abortion would remove the stranglehold that the 1967 Act places on those seeking abortion and their care providers.