8 October 2015
Abortion is still illegal in the UK, thanks to this Victorian law
Sally Sheldon, Professor of Law at the University of Kent and a founding member of Lawyers for Choice, writes on The Conversation.
You probably know that abortion services are available in Britain on the National Health Service. What you may not know is that abortion is still potentially punishable by life imprisonment. That includes terminations very early in a pregnancy.
Abortion is still a criminal offence in the UK under the Offences Against the Person Act 1861. It is legal only when carried out under conditions of strict medical control.
As things stand, a terrified teenager, who takes abortion drugs that she has bought over the internet rather than tell anyone that she is pregnant, is committing a crime that is punishable by life imprisonment.
The 1861 act is an archaic, badly flawed piece of legislation, which is ripe for reform. It includes specific offence such as failing to feed one’s servants properly.
The act is so widely recognised as out of date that the Law Commission is conducting a major review of its content. Yet this review does not include those sections of the act that deal with abortion.
The 1861 act is grounded in the moral concerns and medical realities of mid-Victorian Britain. It was the product of an all-male parliament and was passed almost 60 years before the first women won the right to vote. This was a time when the mere fact of publishing a book on contraception was reason enough for a woman to be deemed morally unsuitable as a mother and to have her child removed from her care.
This effects of this harsh, punitive statute have been mitigated by legislation introduced in 1967, which permits abortions under medical control, but this second law is out of date too. It imposes a range of clinically unjustifiable restrictions on women seeking an abortion – most notably by requiring two doctors, rather than the pregnant woman herself, to decide if an abortion is justified. It also fails to offer any protection to the terrified teenager described above.
It is true that women are seldom charged for getting an abortion – but the fact that an archaic law is not enforced is not justification for retaining it.
Time for change
It is high time abortion was decriminalised in the UK. That would not leave abortion services unregulated. Non-consensual, dangerous or negligent practice would be caught by the same mass of criminal, civil, administrative and disciplinary provisions that regulate other areas of medical practice.
But it would mean recognising that the threat of prison is no fit response to the pregnant teenager above or, indeed, to any woman who feels unable to access formal health care services. Neither are these provisions the best way of policing the boundaries of acceptable medical practice.
Sweeping away criminal prohibitions on abortion would also begin to address the stigma associated with a procedure sought by one in three British women at some point in their lives, and the health professionals that care for them.
It would offer the chance to remove clinically unnecessary barriers to the provision of high quality, compassionate services. It would address the curious legal anomaly that requires doctors in all contexts save for this one, to recognise that patients are adults, capable of “accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices”.
Removing criminal prohibitions on abortion would undoubtedly be fiercely opposed by those who believe that the embryo or fetus is a full moral person, of equal worth to the woman who carries it. But very few modern Britons (including those who identify as Christian) appear to take this extreme view. And while the moral beliefs of the minority should be respected in making decisions about their own healthcare, they should not dictate the shape of services for the majority.
Today, 92% of abortions are performed in the first 12 weeks of pregnancy. Most British people believe that, at least in these very early stages, it is up to the woman to decide whether or not to continue a pregnancy. Most also believe that the government has no business interfering with that right.
For many of us, this is not because we believe that the growing, human fetus has no moral significance. It is because we trust women to make morally significant decisions. And we understand that women cannot participate equally in society unless we have the fundamental right to control our own fertility.
The onus should be on those who wish to retain the threat of a prison sentence to explain why criminal sanction offers a useful and appropriate part of a modern response to addressing the problem of unwanted pregnancy.
It is almost 100 years since the British parliament recognised that women should have the right to vote. Now it should recognise that they should equally have the right to make fundamental decisions about their own fertility.
This piece is based on Professor Sheldon’s longer article, ‘The Decriminalisation of Abortion: An Argument for Modernisation’, published in the Oxford Journal of Legal Studies and available to read in full here.
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