Many people are surprised to learn that abortion is still a crime in the UK, despite how widely it’s accessed. Let’s break down what the law actually says, why it’s so outdated, and what the recent vote to decriminalise it really means.
On 17th June this year, MPs voted in favour of decriminalising abortion in the UK. The vote, put forward by Labour MP Tonia Antoniazzi, added an amendment to the Crime and Policing Bill, which specifically sought to remove the legislation which criminalises abortion. The vote saw a considerable victory, with 379 MPs voting in favour of the amendment, and only 137 opposing.
But what does this vote actually mean? In this context, decriminalisation means the removal of specific criminal sanctions related to abortion. Decriminalisation has already taken place in some countries, such as Canada, where the criminal law framework was removed in 1988, and abortion is now regulated by the Canadian Medical Association. While the specifics of decriminalisation vary from country to country due to differing legal systems, the core definition remains broadly consistent.
Regardless of the particulars of decriminalisation, it may come as a shock to many that abortion is even technically a crime in the UK – today, abortions are relatively easy to access, with 252,122 abortions taking place in England and Wales in 2022. So, why do we need to decriminalise abortion if we can already easily access them? The legislation which governs abortion in the UK is complex and confusing, and so it is not as simple as it may seem in practice.
The legislation is often misunderstood, meaning that some of the dangers that it poses to women are hidden under this mask of abortion ‘on demand’. In this article, we will look at what the legislation actually says about abortion, why it is more dangerous than it may first appear, and why this vote for decriminalisation is so important.
What is the law?
Abortion is governed by two main pieces of legislation in the UK: the Offences Against the Person Act (OAPA) from 1861, and the Abortion Act of 1967. The OAPA is the legislation which makes abortion a crime – sections 58 and 59 of this act make it a criminal offence to procure, or assist in procuring, a miscarriage. The Infant Life Preservation Act (ILPA) (1929) also makes abortion a criminal offence, but it is relatively similar to the OAPA.
The Abortion Act was introduced in 1967, and it functions alongside the OAPA and ILPA. But, it carves out exceptions from the existing legislation, creating certain circumstances in which abortion is legal. The Act requires an abortion to have been approved by two doctors, and the pregnancy must not have exceeded 24 weeks. The Act also provides a set of grounds for legal abortions – if someone’s reason for seeking an abortion fits with at least one of these conditions, then it is legally permissible. These circumstances include situations where continuing the pregnancy would damage the pregnant person’s physical or mental health. But, if for any reason, an abortion does not adhere to these requirements, then it is considered a criminal offence.
Since the legislation was introduced, a lot has changed – both in the medical field and within society more broadly. Abortion is now a much safer procedure than it was then, and it is also much more widely accepted – it is now considered a normal part of everyday healthcare. Because of this general acceptance of abortion, medical and legal practitioners tend to interpret the circumstances of the Abortion Act in a way that means abortion is effectively available to anyone who requests one. This means that abortion healthcare is relatively accessible in the UK today. However, that does not mean that the existing legislation is entirely unproblematic.
What is wrong with it?
A core problem with the legislation today is the stark contradiction between its reliance on a criminal law framework and the far more liberal interpretation used in modern abortion care. This contradiction stems largely from the fact that the legislation has hardly been updated since its introduction, despite significant changes in society and medical practices since the 1800s, and even since the introduction of the Abortion Act only 58 years ago.
At the time, abortion was a far more invasive and risky procedure than it is today. Because of those medical risks, restricting access through legislation was seen as a way to potentially protect women’s health and safety. However, abortion healthcare has advanced massively since then. The invention and introduction of the abortion pills, mifepristone and misoprostol, in the 1970s and 80s have transformed how abortions are carried out – abortions are now safer, less invasive, and more accessible, especially in the early stages of pregnancy. There has been a rise in the use of these pills since they were first approved in the UK in 1991, with 86% of total abortions in the UK in 2022 being carried out using these pills.
However, the issue is that the legislation still reflects a time when abortions were dangerous, rather than a common, simple part of healthcare. There have been some minor updates to the legislation – for example, a 2020 change (made permanent in 2022 through the Health and Care Act) which allowed for abortion pills to be taken at home, rather than in an approved clinic. But the legislation remains largely unchanged.
Two doctors are also required to approve the abortion – the ‘two doctor rule’. This was introduced for the reason of gatekeeping a potentially dangerous procedure, but also because ethical views in medicine were different from today.
Throughout history, doctors have been viewed as the ones who should decide what is best for their patients – an ethos referred to as ‘medical paternalism’. This ethical approach is evident within the abortion legislation, as the final decision regarding whether to grant an abortion lies with the two doctors. However, since the introduction of the legislation, the medical landscape has been changing, including its governing ethics. Medicine has been moving away from medical paternalism, in favour of an emphasis on patient autonomy – the patient is best-placed to make decisions about their own body and healthcare.
Despite this shift across the medical field, abortion healthcare is still stuck in the past, and the abortion decision is technically not the woman’s to make. Even with today’s liberal interpretation and application of the legislation, the law still outlines that the woman’s role is to state her case, and the doctors must decide. These limits to access, such as the two-doctor rule, are now unnecessary formalities and no longer serve to protect women from potential harm. Instead, they simply represent control over women’s bodies and a disregard for their right to choose.
Not only is the legislation dangerous in terms of what it represents, but it also poses a threat to women through the threat of criminal investigation and prosecution. In recent years, there has been a noticeable rise in the number of women investigated and prosecuted under the OAPA, in relation to abortion. According to a Freedom of Information request for Sky News, 17 cases reached court between 2010 and 2019, resulting in six convictions. But, between 2020 and 2023, 11 cases went to court, with five ending in conviction. Such investigations can be invasive, distressing, and traumatic for those involved. Jonathan Lord, the co-chair of the British Society of Abortion Providers, spoke about the significant effects of these investigations in an interview with The Guardian:
“Just being accused is life changing. Everyone is hard-wired to feel shame and stigma when a late pregnancy loss happens; they lost this healthy baby and it’s their fault. To then get called in by the police and interviewed under caution on suspicion of murder, to start going down the route of child destruction [which carries a life sentence], it just destroys people’s ability to cope and heal. We’ve had several reports of patients with quite severe PTSD – not from the pregnancy loss, but from the police investigation afterwards.”
Not only do these investigations cause severe emotional distress for those involved, but the threat of potential investigation and prosecution may deter people from seeking the appropriate medical care if any complications arise. The growing number of investigations and prosecutions has been feeding a culture of unnecessary suspicion surrounding abortion, which can be detrimental to anyone who has had an abortion, and to anyone who is seeking one.
The restrictive nature of the legislation and the rising number of prosecutions also sustain an already significant level of stigma surrounding abortion, even despite the liberal application of the legislation. By framing abortion as a crime, with a few exceptions, the law is asserting that abortion is morally wrong. Although disapproval may have been the dominant opinion at the time of the legislation’s introduction, public attitudes towards abortion have shifted drastically since then, with 71% of British individuals agreeing that abortion should be legal, according to a 2023 poll by Ipsos. So, the legislation’s restrictions are feeding a culture of stigma surrounding abortion, which no longer represents public attitudes – instead, they merely serve to make women feel guilty for wanting to access abortion.
And, finally, the differences between the legislation and abortion provision in practice begs the question – what is the point of keeping legislation in place, if it is effectively redundant? Regardless of all of these dangers we have looked at, the fact that abortion provision today manipulates many of the specific requirements of the legislation, to the point where it is arguably no longer recognisable, then what actual purpose does it serve? Not only does the legislation endanger women, but it is now merely a relic from a very different era.
Why do we need decriminalisation?
However, this vote raises the question – does decriminalisation mean deregulation? It is easy to think that, by removing criminal sanctions for abortion, the procedure will become unregulated, and all crimes surrounding abortion will go unpunished. But, in reality, it is not as simple as that – abortion is already rigorously regulated by external governing bodies, and will continue to be, following decriminalisation. Any instances of dangerous conduct surrounding abortion – such as cases of attempting to procure an abortion without consent, or illegal supply of abortifacients – would also still be subject to prosecution under other existing laws. Essentially, decriminalisation would not change the safety of abortion, but would instead shift governance from abortion-specific criminal law framework to independent regulators, and broader existing healthcare legislation.
So, why is this vote to decriminalise abortion so important? Even though this change is unlikely to have much impact on abortion rates, it represents something much deeper than simply greater access to abortion – it is handing women back their autonomy. They no longer have to feel fear of criminal prosecution for seeking a routine aspect of healthcare. And, even though we arguably have access to abortion upon request, this change will enshrine this right in law, which is a massive step forward for women’s autonomy and the right to choose. Decriminalising abortion is not just about changing the law – it is about restoring trust, dignity and autonomy to those who deserve to have control over their own bodies.
