Posted by When the far right stokes culture wars, so often women’s bodies are their battlefields. Those who oppose a woman’s right to choose are well funded and well organised; those who support too often complacent measures such as time limits and telemedicine consider abortion law to be “settled”. But currently parliament is considering updating abortion law as part of backbench efforts to amend the Criminal Justice Act, and end the Victorian criminalisation of basic healthcare. It’s essential that we win this battle, but if we don’t get ahead of the backlash that will come, there is a real danger we may lose more than we gain.
Women in England and Wales are already denied agency over our bodies – it’s still technically illegal to have an abortion at any point in pregnancy under the 1861 Offences Against the Persons Act (OAPA). The 1967 Abortion Act exempted women and those who assist them from prosecution under stringent conditions, but the impact of the offence endures. In the past 10 years there have been 67 prosecutions, with many more women investigated. In 2021 alone, 40 were subjected to such an invasion of their privacy.
Recent examples include a 15-year-old girl who suffered a stillbirth at 28 weeks. She faced a year-long police investigation, only dropped after a postmortem found that her pregnancy loss was the result of natural causes. The experience left her with lasting mental health problems.
Many people know about sections 58 and 59 of OAPA, which make abortion itself a crime, but section 60, regarding the concealment of the birth of a child, is also being weaponised. Over the past decade, there have been 91 investigations into suspected cases of concealment, with those who face pregnancy loss being reported to the police. A majority were teenagers who were unaware they were pregnant, or women facing “crisis pregnancies” – patients who needed a counsellor, not a police officer, at their hospital bed.
While the case for decriminalisation is clear, how to do it in our current climate is not. Those who oppose abortion – whether they work in the NHS, the civil service or parliament – relish every chance to eat away at access to this service by demanding regulations and new guidance in the light of any legal changes.
And this is no idle threat. The willingness of those who oppose abortion to use their positions to restrict access can be seen in the ongoing debacle over buffer zones – 150-metre safe zones to stop women being harassed outside abortion clinics. Last year, parliament voted to introduce buffer zones around abortion clinics, then explicitly voted to prohibit “silent prayer” in these zones. The government draft guidance later claimed that silent prayer should be allowed in these areas. Chipping away at women’s rights in this way is a strategy likely to be much more successful than any attempt to ban abortion outright.
When Carla Foster was jailed for taking abortion pills at the end of her pregnancy, the reaction showed that the public are both compassionate in believing no woman should go to prison for abortion, and aware that this is not behaviour anyone should encourage. Solely repealing existing laws would raise many concerns about those who do have abortions outside the scope of the 1967 act. And we know that those opposed to abortion altogether are ready to demand service restrictions, using the spectre of “late-term abortion” as cover. So it is likely that those who assist women who have abortions will become the next target of investigations.
To get ahead of such a backlash we should learn from Northern Ireland, which now has the most progressive abortion laws in the UK – sections 58 and 59 have been repealed and in their place now exists regulation and legislation guiding access based on a human right to abortion. Crucially, the secretary of state has a direct responsibility to ensure access on this basis. That has meant that even those ministers who oppose this service have had to argue for its delivery because otherwise they face sanction in court. The Northern Ireland lock requires them to ensure provision is compliant with international human rights obligations, and so nothing can be done that is “punitive” to prevent access – which is why buffer zones already exist there.
Replicating this lock – requiring our laws to be international human-rights compliant – would be vital protection against the growing evidence of anti-abortion activism behind the scenes, like we have seen with buffer zones. It would mean that whatever regulations, guidance or legislation are produced, none could be used to reduce access in England and Wales without explicit democratic consent. Without it, we risk any reform of abortion law being used by those who oppose this service to restrict access by the back door.
With the criminal justice bill – our best chance for a generation to address the injustice of criminalising abortion – we must not leave an open goal for those who wish to use reproductive rights to control women. With an approach similar to Northern Ireland’s, we can stop locking up women and instead lock in our human right to choose.
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