Uk Abortion Law: Understanding The Current Legal Landscape

Abortion law in the UK has been the subject of much debate and discussion in recent years, with campaigners calling for reforms to the current legislation. The foundation of the UK's abortion laws lies in the 1861 Offences Against the Person Act, which criminalised all abortions unless performed to save the life of the mother. The 1967 Abortion Act legalised abortions with an authorised provider and allowed terminations up to 28 weeks, later reduced to 24 weeks in 1991. This means that abortions in England, Scotland and Wales can currently be carried out legally up to 24 weeks and must be approved by two independent doctors. There are very limited circumstances in which an abortion can be carried out after 24 weeks, for example, if the mother's life is at risk or the child would be born with a severe disability. In 2019, abortion was decriminalised in Northern Ireland, allowing women to request an abortion up to 12 weeks without proving a risk to their physical or mental health.

The 1967 Abortion Act

The Act made it lawful to have an abortion up to the 28th week if two registered medical practitioners agreed that continuing the pregnancy would pose a risk to the life of the pregnant woman, or harm her physical or mental health, or that of her family members. The Act did not initially extend to Northern Ireland, where abortions were only allowed if the pregnant woman's life was at risk or if there was a risk of permanent and serious damage to her mental or physical health.

In 1990, the Human Fertilisation and Embryology Act amended the Abortion Act, reducing the time limit for abortions from 28 to 24 weeks for most cases. This change was made on the grounds that advances in medical technology justified it. The 1990 Act also removed restrictions for late abortions in cases of risk to life, fetal abnormality, or grave physical and mental injury to the woman.

In 2018, the Labour Party, under Jeremy Corbyn's leadership, committed to extending the Abortion Act to Northern Ireland. In 2019, the Northern Ireland (Executive Formation etc) Act repealed sections of the Offences Against the Person Act, decriminalising abortion in Northern Ireland. The current abortion law in Northern Ireland allows abortions within the first 12 weeks of pregnancy for any reason and for a broader range of reasons after 12 weeks.

Decriminalisation in Northern Ireland

Abortion in the United Kingdom is now legal across the country for the first time, following the decriminalisation of abortion in Northern Ireland in October 2019. This change in the law was brought about by MPs in London, who voted for legislation requiring abortion laws to be changed unless Northern Ireland's power-sharing executive was restored by 22 October 2019.

The decriminalisation of abortion in Northern Ireland is a significant development, as the region previously had highly restrictive abortion laws. An 1861 law made it a criminal offence to procure a miscarriage, with an exception added in 1945 stating that abortion could be permitted to preserve the mother's life. Rape, incest, and diagnoses of fatal fetal abnormality were not grounds for a legal abortion.

The change in the law in Northern Ireland came about due to a combination of factors, including legal challenges, political pressure, and public opinion. In 2013, Sarah Ewart challenged Northern Ireland's abortion laws in the High Court after being denied a legal abortion despite doctors stating that her fetus would not survive outside the womb. The Supreme Court of the United Kingdom held that the law was incompatible with the right to respect for private and family life in cases of rape, incest, and fatal fetal abnormality. Additionally, in 2018, the United Nations Committee on the Elimination of Discrimination against Women published recommendations to liberalise abortion law in Northern Ireland.

The decriminalisation of abortion in Northern Ireland has been welcomed by many as a step towards recognising abortion as a human right and healthcare. However, it is important to note that despite the change in law, barriers to accessing abortion care remain. Amnesty International UK has highlighted that commissioned abortion services are still not established in Northern Ireland, and the fight for full access continues.

The new legal framework for abortion services in Northern Ireland was introduced by the UK Government in March 2020, following a 6-week consultation. The Abortion (Northern Ireland) Regulations 2020 allow access to abortions up to 12 weeks of gestation without conditionality and for abortions beyond 12 weeks in specified instances, including severe fetal impairment and fatal fetal abnormalities. While this marks a significant shift towards improving access, concerns have been raised about the full commissioning of abortion services, with legal action taken against the Secretary of State for Northern Ireland for failing to ensure the provision of abortion and post-abortion care in public health facilities.

The Offences Against the Person Act 1861

The Act created two offences related to abortion:

Section 58: Administering Drugs or using Instruments to procure Abortion

"Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for life or for any term not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement."

Section 59: Procuring Drugs, etc. to cause Abortion

"Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanour, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for the term of three years, or to be imprisoned for any term not exceeding two years, with or without hard labour."

In England and Wales, 37 sections of the Act remain in force, while different subsets of its provisions remain in force in Northern Ireland. The Act was the basis for a ban on abortion in Northern Ireland until 2019, when sections 58 and 59 were repealed by the Northern Ireland (Executive Formation etc.) Act 2019.

Abortion as a healthcare matter

Abortion is a healthcare procedure that involves ending a pregnancy either by taking medicines or through a surgical procedure. In the UK, abortions are carried out under the Abortion Act 1967, which allows abortions to be performed legally up to 24 weeks of pregnancy. The procedure must be approved by two independent doctors and carried out in an NHS hospital or a licensed clinic. While abortion is legal, it is still written into criminal law, meaning that abortions outside the parameters of the Abortion Act can lead to police investigation, prosecution, or even jail time.

Abortion laws in the UK have evolved over time, initially criminalising all abortions under the 1861 Offences Against the Person Act. However, amendments and revisions have been made to provide exceptions and expand access. The foundation of the UK's abortion laws is saving the life of the mother, which was introduced as a caveat in 1929. In 1938, a court case involving a 14-year-old rape victim led to a revision of the law, allowing abortions if the procedure was deemed necessary to protect the physical and mental health of the woman.

The major overhaul of abortion laws came in 1967 with the Abortion Act, which legalised abortions with authorised providers. This Act specified that abortions must be performed by a registered medical practitioner and authorised by two doctors acting in good faith. The criteria for abortion include risks to the physical or mental health of the pregnant woman, the risk to existing children, and the potential for the child to be born with serious disabilities.

While the Abortion Act provided legal grounds for abortion, it did not establish abortion as a right. Instead, it provided an exemption from prosecution in certain circumstances. This approach differs from many other European countries, which allow abortions "on demand".

In recent years, there have been calls for further reform and decriminalisation of abortion laws in the UK. Campaigners argue that abortion should be treated as a healthcare matter rather than a legal one. They seek to remove abortion from criminal law altogether, emphasising that abortion is a safe and common form of healthcare. Additionally, the COVID-19 pandemic highlighted the need for flexibility, with the government approving at-home abortion pills and telemedical support during the early stages of pregnancy.

The impact of abortion laws extends beyond legal and ethical considerations. Abortion is a common procedure, with approximately one in three women likely to experience it in their lifetime. It is essential to recognise that abortion can be a complex and challenging decision for women, and ensuring access to accurate information, compassionate care, and support is crucial.

Punishments for breaking the law

The Offences Against the Person Act 1861 criminalises all abortions. Under this Act, anyone who provides or uses poison or an instrument to end a pregnancy can be imprisoned. The Act carries a maximum life sentence.

In 2023, a woman was sentenced to over two years in prison for inducing an abortion after the legal limit. This sentence was later reduced to 14 months.

In 2022, 67 cases of procuring an illegal abortion were recorded by police in England and Wales in the previous 10 years. Prosecutions are rare.

Campaigners are calling for abortion to be decriminalised so that it is a healthcare matter rather than a legal one.

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