12 June 2014
Four good reasons for Britain to decriminalise abortion altogether
The most recent national abortion statistics confirm that abortion is integrated into public health policy, and provided safely and effectively to women who continue to need it. So why do we still have a criminal law?
Since 1990, when the abortion law was last amended, governments and their civil servants have done their best to keep abortion out of Parliamentary politics. It’s easy to understand why. Abortion is a complex and polarising topic, which confers political advantage on no party. Abortion is something that policymakers, like most people, accept but don’t want to talk about. And the way in which the Abortion Act was drafted has allowed services to develop as society has needed them.
But this situation cannot go on indefinitely. Recent attacks on the 1967 Abortion Act by opponents of abortion have shown that, when abortion is framed in the context of a criminal offence, legal manipulations and misinterpretations can have unsettling consequences for doctors. At the same time, some of the stipulations within the Abortion Act are making it impossible for services to give women the best care they should be able to expect. Here are four good reasons why it is time to revisit Britain’s abortion law, and consider taking abortion out of the criminal statute altogether.
1) Victorian legislation continues to frame abortion as a crime
Many people are surprised to find that abortion in Britain is still a criminal offence. They are even more surprised that the law criminalising abortion is 150 years old. The 1861 Offences Against the Person Act (OAPA) legislates that any pregnant woman ‘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 anyone who helps her – will be ‘kept in penal servitude for life’.
The OAPA did not mean that women stopped having abortions, merely that they were more likely to suffer complications from illegal ‘backstreet’ procedures. Indeed, the terrible consequences for women’s health of their reliance on illegal abortion was the key reason why parliamentarians, doctors and campaigners in the middle of the twentieth century lobbied hard for a law that would allow women to have abortions safely and legally.
When Parliament passed the 1967 Abortion Act, it was estimated that the number of illegal abortions ranged from 100,000 to 150,000 per year, and that about one in five of these would result in women ending up in hospital suffering from complications.
The 1967 Abortion Act made abortion legal in Britain, but with some important caveats. The 1967 Act brings legalisation rather than decriminalisation, in that it creates an exemption from prosecution under the OAPA for women and doctors who comply with the law. This means that if the woman or her doctor do not meet the conditions laid out in the Act, they can still end up in ‘kept in penal servitude for life’.
The legality of each abortion is decided on by doctors not women, and is framed in terms of medicine rather than choice. Women have no right to abortion – the procedure has to be authorised by two doctors on the grounds that it is better for her mental health than carrying the pregnancy to term. The relevant sections of the 1967 Abortion Act read:
Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion formed in good faith –
(a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or
(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or
(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or
(d) that there is substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph a) or b) of subsection (1) of this section, account may be taken of the pregnant woman’s actual or reasonably forseeable environment.
In terms of reducing the mortality and morbidity of abortion, the 1967 Act has had a huge impact. The serious complication rate from abortion is small in comparison with other procedures; in 2013, complications were reported in 235 cases, a rate of about one in every 800 cases.
In practical terms, the 1967 Act has allowed most women access to the abortions that they need – as discussed below. However, there are both principled and practical problems with the 1967 Act. In principle, the 1967 Act frames the abortion decision as belonging to doctors rather than women. In practice, many of its stipulations are out of step with the way that abortion is provided today.
2) Abortion today is an accepted part of public health
Despite liberal interpretation and permissive practice, the Abortion Act 1967 (as amended by the Human Fertilisation & Embryology Act 1990) remains, on paper, one of the most restrictive in the developed world. Formally, the decision about whether a woman can end her pregnancy is placed in the hands of her doctors, with two doctors required to certify that certain medical conditions are met. In practice, most doctors accede to a woman’s request for abortion, understanding that forcing a woman into unwilling motherhood is going to be damaging to her mental health; also abortion is less risky than childbirth.
Britain does now have a situation where the law is interpreted to allow abortion when a pregnancy is unwanted. Policymakers today recognise this situation as acceptable: as evidenced by the fact that there has been no serious attempt to revisit the law since it was last amended in 1990. And insofar as it is possible to measure public opinion, the public seems comfortable with it. A poll carried out by IpsosMORI in 2011 found that 70% believed a woman should have the right to choose free of government interference.
Demand for abortion remains high. In 2013, for women resident in England and Wales, the total number of abortions was 185,331, and the age-standardised abortion rate was 15.9 per 1,000 resident women aged 15-44. One woman in three will seek a termination of pregnancy before the age of 45. Although abortion is still stigmatised, it is now widely accepted as ‘part of life’.
Today’s social expectations create a climate where liberal access to abortion is a necessary part of healthcare. We expect to be able to plan our families. As the recent National Survey of Sexual Attitudes and Lifestyles (Natsal) confirmed, we regard sex as a celebration of love, comfort, intimacy, and fun – and not necessarily a means of procreation. We know that contraception methods and their users are not infallible and so if we are to achieve planned parenthood, abortion is a necessary back-up to birth control. Society regards parenthood as a significant responsibility to be undertaken with forethought and consideration. This view of parenthood does not easily sit alongside the idea that women with unwanted pregnancies should have no choice other than to broach unwanted motherhood.
And government ministers have quietly embraced this view. Abortion is funded as a mainstream part of healthcare and regulated as a clinical procedure. From 2001, the Royal College of Obstetricians and Gynaecologists (RCOG) has defined abortion as a ‘healthcare need’ and developed an evidence-based guideline around clinical best practice.
The previous, New Labour government included abortion within a wider sexual health policy, bringing in targets:
Women considering or seeking abortion should:
• have direct access to, or be referred for, an abortion assessment within five working days of initial contact with an abortion provider or other healthcare provider
• receive comprehensive, accurate and unbiased information
• be able to access an abortion ideally within two weeks, but within a maximum of three weeks, of initial contact with healthcare providers
• be offered a choice of abortion methods clinically appropriate for their gestation and individual circumstances
• be offered screening for chlamydial infection, and treatment as necessary, with prophylactic treatment provided when results are not available prior to the procedure
• be able to access screening for other STIs, including HIV
• have individualised support and access to specialist counselling if needed at any time during or after the abortion process.
The current Conservative-Liberal Democrat Coalition government, which is rhetorically much less committed to the pro-choice cause, has also included abortion in its sexual health policy. The 2013 Department of Health document A Framework for Sexual Health Improvement in England notes approvingly that ‘Access to abortion has improved in recent years. In 2011, 96% of abortions carried out on residents of England and Wales were provided free on the NHS; of these, 91% were carried out before the thirteenth week of gestation.’ It also states that ‘For those women who request an abortion it is important that they have early access to services, as the earlier in pregnancy an abortion is performed the lower the risk of complications’.
In practice, then, access to abortion has increased dramatically over the years, while the law has remained the same. In 1990, the last time that the law was subject to substantial Parliamentary scrutiny, the National Health Service (NHS) paid for less than half (48%) of abortions to women entitled to NHS care. Today the NHS funds 98% of all abortions.
The biggest shift in abortion provision over the past 20 years has been towards the NHS funding of abortions that are provided by independent sector clinics – for the most part, those run by British Pregnancy Advisory Service (bpas) and Marie Stopes International (MSI). In 2013, 64% of all abortions were performed in approved independent sector places under NHS contract, and 34% in NHS hospitals.
The fact that abortion care is outsourced from the NHS in this way indicates that policymakers recognise it is a relatively uncomplicated procedure that is best provided by organisations with the flexibility to work around the best available methods, and what women want and need. But the fact that abortion remains a criminal offence means that independent sector clinics, like their colleagues in the NHS, are continually having to satisfy requirements that have nothing to do with the clinical care of women – and in many cases, actually contradict standards of best care.
3) The legal requirements run counter to best practice
The requirement that abortions may only be performed by doctors is ludicrous given the extended role of nurses. It may have seemed a sensible safeguard in the 1960s, when the procedure was regarded as complicated and potentially dangerous, but the modern vacuum aspiration used in early suction abortions could easily be carried out by nurses, as is the case in some US states and in South Africa.
And the abortion pill can just as easily be issued by a nurse as by a doctor. This is evidenced by the fact that in the UK, nurse practitioners can issue women with misoprostol when they have undergone a miscarriage, but are barred from prescribing that very same drug for early abortions.
Restrictions on where abortions can be performed limit the number of premises able to deliver services and leads to the pantomime where a doctor assessing a woman’s suitability for abortion in a family-planning clinic has to make a separate appointment to see her at an approved clinic to give her the drugs (which she has to take on site). And, of course, women and doctors in Northern Ireland are still excluded from the provisions of the Act, meaning they are forced to travel to mainland Britain, which can put them at risk of further delay in obtaining the procedure.
In 2008, the Parliamentary Science and Technology Committee (STC) conducted a comprehensive review of the evidence around abortion, in an effort to allow for a debate about how the law could be improved. The committee’s recommendations included the removal of the requirement for two doctors’ signatures before an abortion can be carried out, on the grounds that this requirement ‘may be causing delays in access to abortion services’ and that there is ‘no evidence of its value in terms of safety’.
The Committee recommended that nurses and midwives with suitable training and professional guidance should not be prevented by law from carrying out all stages of early medical and early surgical abortion, noting that ‘There is no evidence that this would compromise patient safety or quality of care’.
It also found that there is no evidence relating to safety, effectiveness or patient acceptability that should deter Parliament from passing regulations which would enable women, who chose to do so, taking the second stage of early medical abortion at home. Early medical abortion (EMA), or the ‘abortion pill’, involves taking two drugs, which have the effect of inducing a miscarriage. This method has been gaining in popularity since it was developed in the 1990s, and today 61% of abortions up to 9 weeks’ gestation used the EMA method.
The first drug is given to women following their consultation and medical assessment, while the second is administered by women themselves 48 hours afterwards. In most cases, it is this second drug that will cause the pregnancy to be expelled. In the USA and many European countries, ‘home use’ of the second stage of early medical abortion is common practice, but because of the wording of Britain’s abortion law, women here have to make a second trip to the clinic just to take the second medication, before going home again.
As well as being inconvenient and unpleasant, this puts women at risk of bleeding on the way home, and denies them the level of comfort and control that they could otherwise have. For this reason, in 2011 BPAS brought a legal challenge, heard at the High Court, calling for the law to be interpreted such that women could take the second EMA drug at home. The case was rejected. This highlighted the extent to which the law, written at a time when the EMA method did not even exist, is not fit for purpose in 21st century abortion care.
The STC inquiry provided an opportunity to take the discussion forward towards a law that would explicitly allow abortion at the request of a woman because her pregnancy is unwanted; permit suitably qualified healthcare providers other than doctors to carry out abortions; remove ‘class of place’ restrictions; require the NHS to fund services to meet local demand; and remove the geographical anomaly that excludes Northern Ireland from the reach of the Abortion Act.
Yet unfortunately, when the issue last came up in Parliament, the government of 2008 refused to debate these progressive amendments. One effect of this has been to leave the abortion law vulnerable to attacks and misinterpretation by MPs, media organisations and campaigners determined to restrict access to abortion.
In 2011, the MP Nadine Dorries launched an ill-informed attack on abortion clinics’ ability to provide information and counselling to their clients. The following year, a carefully-orchestrated sting operation conducted by the Daily Telegraph accused two doctors working in private practice of authorising abortions for reason of fetal ‘sex selection’. The then Health Secretary Andrew Lansley then instructed the Care Quality Commission (CQC) to conduct a sudden wave of inspections on all abortion providers – not to find evidence of bad clinical practice, but to uncover ways in which providers may not be satisfying the legal requirements.
At all points, official sources have made pronouncements about the abortion law that were factually inaccurate and out of step with the way that the law has been interpreted for the past 40 years. These recent events have made doctors working in the abortion service understandably nervous that their best attempts at clinical best practice and legal compliance might still fall foul of a change in interpretation.
4) Why not trust women and doctors?
With the Abortion Act over half a century old, it is surely time that we created a form of regulation that reflects contemporary knowledge and social values, ending the hypocrisy that pretends abortion is rare and the attempts to ‘ghettoise’ it. We should not have to work around an Act that stigmatises abortion, setting it aside from other procedures and privileging doctors’ opinions about unwanted pregnancy above those of the women who experience them. Women deserve better: a flexible, fit-for-purpose regulation accepting that restrictions on abortion should be solely to protect health.
And why not? The evidence of the past 40 years should reassure policymakers that, the more acceptable abortion has become, the better provision has been. It is not the criminal law that creates this situation, but the improvement of services and procedures. For example, abortion is legally available up until 24 weeks’ gestation, but the vast majority (92%) take place at under 13 weeks, with access to later procedures reserved for that small proportion of women in difficult circumstances. There is no reason to believe that if the legal ‘time limit’ were removed, large numbers of women would start accessing abortion at later gestations.
Given that the abortion law is already interpreted to allow women to have abortions if they feel they need them, what would change if ‘abortion on request’ was simply allowed? Women do not ‘want’ to have abortions in the way they might ‘want’ to go on exotic holidays, and there is no reason to believe that if they were formally allowed to request abortions they would do so in greater numbers, or for different reasons, than they already do.
As for abortion doctors – the notion that they need a criminal law to keep their practice in check is as insulting as it is bizarre. As in every other area of healthcare, abortion doctors are regulated by clinical standards and their professional bodies; there is nothing in the Abortion Act that improves the care that they give to women. So why are these doctors marked out as less trustworthy than others, when they give a particular kind of procedure? There is no other field of healthcare where patients and doctors have to jump through legal hoops before they can even have a medical consultation.
Abortion will always be a contentious moral, ethical and political issue. But the criminal law does not help any attempt to debate the rights and wrongs of abortion, or prevent abortions from happening. All it does is to put hurdles in the way of doctors attempting to provide the best care for their patients. bpas supports women’s pregnancy choice whatever they are, and we trust women to decide for themselves. It is time for policy makers to do the same and make the legal change to allow it.
UK: Annual abortion statistics released. Reproductive Review, 12 June 2014
A chance to create an abortion law that’s fit for purpose - let’s take it. Clare Muphy, Director of External Affairs at BPAS, writes on the Huffington Post UK, 11 June 2014.