Abortion in the United Kingdom

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Abortion is legal throughout the United Kingdom of Great Britain and Northern Ireland, under the Abortion Act 1967, if there is:

  • risk to the life of the pregnant woman;
  • preventing grave permanent injury to the physical or mental health of the pregnant woman;
  • risk of injury to the physical or mental health of the pregnant woman or any existing children of her family (up to a term limit of 24 weeks of gestation); or
  • substantial risk that if the child were born, it would "suffer from such physical or mental abnormalities as to be seriously handicapped".[1][2]

In law, abortion policy is devolved in Scotland and Northern Ireland but not in Wales. The law in Northern Ireland changed on 21 October 2019 to allow abortion, hitherto banned, under the provisions of the UK Parliament's Northern Ireland (Executive Formation etc) Act 2019, as the Northern Ireland Assembly was not operating at the time. Abortion services will be provided in Northern Ireland by 31 March 2020, and until then Northern Irish women can access abortion services in other parts of the UK without a fee and without committing a criminal offence.[3]

Pro-life protesters in London

Great Britain[edit]

In Great Britain, abortion is generally allowed for socio-economic reasons during the first twenty-four weeks of the pregnancy (the highest such limit in the EU, together with the Netherlands), and beyond for medical reasons.[4]

Abortion Act 1967[edit]

As indicated above, in England and Wales and Scotland, section 1(1) of the Abortion Act 1967 now reads in full:[5]

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 of the pregnancy 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 a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.

Subsections (a) to (d) were substituted for the former subsections (a) and (b) by section 37(1) of the Human Fertilisation and Embryology Act 1990.[6][7]

The following terms in the legislation may be interpreted as follows (references are to the 1967 Act unless otherwise stated):

  • The law relating to abortion - in England and Wales, this means sections 58 and 59 of the Offences against the Person Act 1861 and any rule of law relating to the procurement of abortion.[8] and in Scotland, this means any rule of law relating to the procurement of abortion;[8]
  • Terminated by a registered medical practitioner - see Royal College of Nursing of the UK v DHSS [1981] AC 800, [1981] 2 WLR 279, [1981] 1 All ER 545, [1981] Crim LR 322, HL;
  • Place where termination must be carried out - see sections 1(3) to (4);
  • The opinion of two registered medical practitioners - see section 1(4);
  • Good faith - see R v Smith (John Anthony James), 58 Cr App R 106, CA;
  • Determining the risk of injury in ss. (a) & (b) - see section 1(2);
  • Risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman - In R v British Broadcasting Corporation, ex parte ProLife Alliance, Lord Justice Laws said: "There is some evidence that many doctors maintain that the continuance of a pregnancy is always more dangerous to the physical welfare of a woman than having an abortion, a state of affairs which is said to allow a situation of de facto abortion on demand to prevail." [9]

England and Wales[edit]

Offences against the Person Act 1861[edit]

Section 58 of the Offences Against the Person Act 1861 reads as follows and prohibits administering drugs or using instruments to cause a miscarriage:

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 unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable ... to be kept in penal servitude for life ... [10]

Section 59 of that Act reads as follows and prohibits the procurement of drugs or other items to cause a miscarriage:

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 misdemeanor, and being convicted thereof shall be liable ... to be kept in penal servitude ...[11]

The following terms in the legislation may be interpreted as follows:

  • Unlawfully - for the purposes of sections 58 and 59 of the Offences against the Person Act 1861, and any rule of law relating to the procurement of abortion, anything done with intent to procure a woman's miscarriage (or in the case of a woman carrying more than one foetus, her miscarriage of any foetus) is unlawfully done unless authorised by section 1 of the Abortion Act 1967 and, in the case of a woman carrying more than one foetus, anything done with intent to procure her miscarriage of any foetus is authorised by the said section 1 if the ground for termination of the pregnancy specified in subsection (1)(d) of the said section 1 applies in relation to any foetus and the thing is done for the purpose of procuring the miscarriage of that foetus, or any of the other ground for termination of the pregnancy specified in the said section 1 applies;[12]
  • Felony and misdemeanor - see the Criminal Law Act 1967;
  • Mode of trial - the offences under section 58 and 59 are indictable-only offences;
  • Sentence - an offence under section 58 is punishable with imprisonment for life or for any shorter term [13] and an offence under section 59 is punishable with imprisonment for a term not exceeding five years.[14]

Infant Life (Preservation) Act 1929[edit]

Other legal provisions[edit]

A death of a person in being which is caused by an unlawful attempt to procure an abortion, is at least manslaughter.[15][16]

As to the effect of section 6(1)(a) of the Broadcasting Act 1990 in relation to broadcasting pictures of an abortion, see R v British Broadcasting Corporation, ex parte ProLife Alliance [2003] UKHL 23, [2004] 1 AC 185, [2003] 2 WLR 1403, [2003] 2 All ER 977, [2003] UKHRR 758, [2003] HRLR 26, [2003] ACD 65, [2003] EMLR 23, reversing R v British Broadcasting Corporation, ex parte ProLife Alliance [2002] EWCA Civ 297, [2002] 3 WLR 1080, [2002] 2 All ER 756, CA. That section was repealed by the Communications Act 2003.

Scotland[edit]

Abortion was reserved to the UK Parliament under the Scotland Act 1998[17] but was subsequently devolved to the Scottish Parliament via the Scotland Act 2016.[18] The Abortion Act 1967 remains in place.

Wales[edit]

Abortion was not devolved under Government of Wales Act 1998[19] and was specifically reserved to the UK Parliament via the Government of Wales Act 2006.[20]

Northern Ireland[edit]

Devolution[edit]

The Offences against the Person Act 1861 originally applied to the whole of Ireland.[21][22] Civil and criminal law was devolved to Northern Ireland under the Government of Ireland Act 1920[23] and the Northern Ireland Parliament enacted the Criminal Justice Act (Northern Ireland) 1945, which allowed for abortion "in good faith for the purpose only of preserving the life of the mother."[24] This reflects the Infant Life (Preservation) Act 1929. An integrated health and social care service was established in 1948.

The Northern Ireland Parliament was suspended in 1972 and direct rule from Westminster continued until the devolution of a range of powers, including health, to the Northern Ireland Assembly in 1999.[25][26] Criminal law, including abortion, continued to be reserved to Westminster until the devolution of policing and justice powers in 2010.[27] Between 1993 and 1999, a series of court cases interpreted the law as also allowing for abortion in cases where, for the pregnant woman, "there is a risk of real and serious adverse effect on her physical or mental health, which is either long term or permanent".[28]

Statute law[edit]

The law on abortion in Northern Ireland was radically changed by the Northern Ireland (Executive Formation etc) Act 2019. Until then there were two main laws on abortion in Northern Ireland:

A person convicted of administering drugs or using instruments to procure an abortion (section 58, 1861 Act) or child destruction (section 25, 1945 Act) is liable to "penal servitude for life"; a person convicted of the lesser offence of procuring drugs or other items to cause an abortion (section 59, 1861 Act) is "liable ... to be kept in penal servitude" but not for life.

As with the penalties for other offences, life imprisonment is a maximum and not a requirement. The law allows for shorter sentences at the discretion of the court but the potential for imprisonment reflects the seriousness of an offence against a person (and acts as a deterrent). For example, section 5 of the Offences Against the Person Act also provides for a life imprisonment or shorter sentence in cases of manslaughter.

Abortion and child destruction offences are only occasionally recorded in Northern Ireland (a possible effect of the deterrent provided by the law). Between 1998 and 2018, the Police Service of Northern Ireland (PSNI) recorded 17 cases of 'procuring illegal abortion' and three cases of 'intentional destruction of a viable unborn child'. In several years within that time frame, no offences of this type were recorded.[29]

Legal cases before 2020[edit]

Abortion law in Northern Ireland has also been extensively considered in a number of legal cases.[30][31]

In Northern Ireland Health and Social Services Board v A and Others ([1994] NIJB 1), Lord Justice MacDermott said that he was "satisfied that the statutory phrase, 'for the purpose only of preserving the life of the mother' does not relate only to some life-threatening situation. Life in this context means that physical or mental health or well-being of the mother and the doctor's act is lawful where the continuance of the pregnancy would adversely affect the mental or physical health of the mother. The adverse effect must however be a real and serious one and there will always be a question of fact and degree whether the perceived effect of non-termination is sufficiently grave to warrant terminating the unborn child."

In Western Health and Social Services Board v CMB and the Official Solicitor ([1995] unreported), Mr Justice Pringle stated that "the adverse effect must be permanent or long-term and cannot be short term ... in most cases the adverse effect would need to be a probable risk of non-termination but a possible risk might be sufficient if the imminent death of the mother was a risk in question".[32]

In Family Planning Association of Northern Ireland v Minister for Health, Social Services and Public Safety (October 2004), Lord Justice Nicholson stated that "it is unlawful to procure a miscarriage where the foetus is abnormal but viable, unless there is a risk that the mother may die or is likely to suffer long-term harm, which is serious, to her physical or mental health."[33] In the same case, Lord Justice Sheil stated that "termination of a pregnancy based solely on abnormality of the foetus is unlawful and cannot lawfully be carried out in this jurisdiction."[34]

In November 2015, Lord Justice Horner made a declaration of incompatibility under the Human Rights Act 1998 to the effect that Northern Ireland's law on abortion (specifically its lack of provision in cases of fatal foetal abnormality or where the pregnancy is the result of rape or incest) could not be interpreted in a manner consistent with Article 8 of the European Convention on Human Rights i.e. a right to respect for his private and family life, his home and his correspondence; the Convention also protects a right to life in Article 2.[35]

In June 2017, the declaration of incompatibility was quashed by the Court of Appeal on the grounds that "a broad margin of appreciation must be accorded to the state" and "a fair balance has been struck by the law as it presently stands until the legislature decides otherwise".[36][37]

In June 2018, the Supreme Court of the United Kingdom held that the law of Northern Ireland was incompatible with the right to respect for private and family life, insofar as the law prohibited abortion in cases of rape, incest and fatal foetal abnormality. However, the court did not restore the declaration of incompatibility as it also held that the claimant did not have standing to bring the proceedings and accordingly the court had no jurisdiction to make a declaration of incompatibility reflect its view on the compatibility issues.[38][39]

The judgments of the Supreme Court acknowledged that the court lacked jurisdiction to issue a declaration of incompatibility but included a non-binding opinion that an incompatibility existed, and that a future case in which the applicant had the necessary standing would be likely to succeed. It also urged the authorities "responsible for ensuring the compatibility of Northern Ireland law with the Convention rights" to "recognise and take account of these conclusions ... by considering whether and how to amend the law".[40][41]

Northern Ireland (Executive Formation etc) Act 2019[edit]

The Northern Ireland (Executive Formation etc) Act 2019, enacted on 24 July 2019, extended the deadline for the restoration of the Northern Ireland Executive to 21 October 2019. Under an amendment introduced by Stella Creasy, a Labour MP, if an Executive were not restored by that date—in the event it was not—the Act would:[42][43][44]

  • require the Secretary of State for Northern Ireland to implement recommendations regarding abortion made in the 2018 [United Nations] CEDAW report (which is known in full as the Report of the Inquiry concerning the United Kingdom of Great Britain and Northern Ireland under Article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women);[45]
  • repeal sections 58 and 59 of the Offences Against the Person Act 1861 under the law of Northern Ireland, and require that no investigation may be carried out, and no criminal proceedings may be brought or continued, in respect of an offence under those sections under the law of Northern Ireland (whenever committed);[46] and
  • require the Secretary of State, by regulation, to make whatever other changes to the law of Northern Ireland appear ... to be necessary or appropriate for complying with the CEDAW report's recommendations, including "provision for the purposes of regulating abortions" and "the circumstances in which an abortion may take place" with these regulations made to come into force by 31 March 2020.[47]

The Act would also require the Secretary of State to "carry out the duties imposed by this section expeditiously" and allow him or her, by regulations, to "make any provision that appears ... to be appropriate" (in view of the proposal to repeal sections 58 and 59 of the Offences Against the Person Act 1861 and to prohibit investigations or criminal proceedings under those sections).[48]

Protection for the life of a child which is "capable of being born alive"—defined as the unborn child in a pregnancy where a women has been pregnant for 28 weeks or more—would continue under the Criminal Justice Act (Northern Ireland) 1945. This reflected fetal viability in the United Kingdom at the time of the legislation and the relevant law has not been amended since 1945.[49]

In 2017-2018, a total of 81 children in Northern Ireland were born alive at less than 28 weeks of gestation.[50]

The repeal of sections 58 and 59—without replacement—would decriminalise the following actions, in situations where a pregnancy has not reached 28 weeks of gestation:

  • a woman administering drugs, or using an instrument or ‘other means whatsoever’, with intent to cause (procure) her own miscarriage;[51]
  • any person (whosoever) taking any of the same actions with intent to cause the miscarriage of any woman (including cases with no consent from the pregnant woman);[52] or
  • any person supplying or procuring drugs, any instrument or anything whatsoever, with intent, to cause the miscarriage of any woman.[53]

The law would provide for wider access to abortion than in Great Britain, where abortions are generally permitted up to 24 weeks of gestation.[54]

Sections 58 and 59 would remain part of the law in England and Wales.[55] The intention of the Act, when it was passed by Parliament, was to consolidate and amend the statute law of England and Ireland relating to offences against the person.[56]

Political party positions[edit]

The positions of the political parties contesting elections in Northern Ireland regarding abortion can be summarised as follows:

Abortion policy is regularly an issue of political debate in Northern Ireland.

In September 2014, the then Democratic Unionist Party Health Minister, Jim Wells, was quoted by The Guardian regarding abortion in cases of rape. Mr Wells stated: "That is a tragic and difficult situation but should the ultimate victim of that terrible act - which is the child - should he or she be punished for what has happened by having their life terminated? No." [60]

At its 2012 conference, Sinn Féin adopted a policy of allowing abortion in both parts of Ireland under certain circumstances; this was superseded by a newer policy adopted at its 2018 conference.[61] The then deputy First Minister, Martin McGuinness, had stated: "Sinn Féin is not in favour of abortion, and we resisted any attempt to bring the British 1967 Abortion Act to the North."[62]

During his tenure as leader of the Ulster Unionist Party, Mike Nesbitt remarked: "My view is that we need a consultation and that a woman's voice should be stronger by a long way in that consultation."[63] An SDLP representative at that time, Fearghal McKinney, stated that he was fundamentally opposed to any extension of the Abortion Act 1967 to Northern Ireland.[63]

While the Alliance Party considers abortion a matter of conscience, its former leader, David Ford, introduced the Abortion (Fatal Foetal Abnormalities) Bill in December 2016. This would have allowed terminations up to 24 weeks of gestation in those cases. The Bill fell with the collapse of the Northern Ireland Executive in January 2017.[64]

Under Dawn Purvis, the Progressive Unionist Party provided strong support for the establishment of an independent Marie Stopes abortion clinic in Belfast.[62]

Abortion has also been discussed by representatives of UK-wide political parties (although the Labour and Liberal Democrat parties do not contest elections in Northern Ireland). Following a United Nations report in July 2013, a Liberal Democrat junior minister in the then UK Coalition Government, Jenny Willott, stated that the Government was obliged to submit a report on the steps taken to implement recommendations on abortion laws and services in Northern Ireland by November 2014.[65]

Church positions[edit]

The Catholic Church's position on abortion is based upon the Fifth Commandment which prohibits intentional killing. The Church holds the view that every human from conception has an inalienable right to life, and thus considers abortion a mortal sin, the procuring of which automatically incurs, for any Catholic, the penalty of excommunication latae sententiae (i.e. "by the very commission of the offence"). The Catechism of the Catholic Church (1992) states: "Since the first century the Church has affirmed the moral evil of every procured abortion. This teaching has not changed and remains unchangeable. Direct abortion, that is to say, abortion willed either as an end or a means, is gravely contrary to the moral law."[66]

The Presbyterian Church in Ireland is strongly anti-abortion, and maintains that abortion should only be permitted in exceptional circumstances (e.g. where there is a real and substantial risk to the life of the mother) subject to the most stringent safeguards. The church has affirmed the sanctity of human life, that human life begins at conception, and that complex medical and social issues such as abortion need to be handled with sensitivity and compassion.[67]

The Church of Ireland affirms the right to life as a fundamental ethical value from which all other values derive and therefore places value on the right to life of an unborn child and of the mother. However, the church also believes that in circumstances of "strict and undeniable medical necessity", the care that medical professionals need to give to the mother may result in the termination of her pregnancy. In cases of "lethal foetal abnormality", a church committee responding to a consultation on abortion has objected to feticide as a form of termination but accepted an option of expediting birth and providing perinatal palliative care and support, i.e. when the child is viable outside the womb. In keeping with its position on the value of life, the response affirmed that the circumstances of the conception do not alter the value of the child's life. Alongside this, it contended that it is self-evident that ongoing support for victims of sexual crime must be "readily available and of the highest standards".[68]

The Methodist Church in Ireland believes that a foetus should progressively be accorded rights, as it develops through its stages of gestation, culminating with full respect as an individual at birth. It maintains that abortion is a permissible choice in a small number of very specific cases, namely where the mother's life is at risk, where there is risk of "grave injury" to the physical or mental health of the mother, in cases of rape or incest, or where the foetus is "incapable of survival" whether due to the "gross abnormality" of the foetus (e.g. anencephaly) or otherwise. However, the church is opposed to "abortion on demand" and contends that a foetus cannot be regarded as "just an appendage of the mother's body".[69]

The smaller Protestant churches are generally conservative on the issue of abortion and include the Free Presbyterian Church, formerly led by Ian Paisley (Lord Bannside), also founder of the Democratic Unionist Party, who opposed abortion except where the life of the mother was in danger. In the House of Commons in 1993, Paisley stated: "My views on abortion are well known. In the historic Protestant tradition, I totally oppose it, except where the life of the mother is in danger."[70]

The Reformed Presbyterian Church of Ireland explains its pro-life position through a biblical narrative of the human status of the unborn child. It also acknowledges that women facing a crisis pregnancy often are confronted with the most difficult decision of their lives and encourages support which helps women to choose an alternative to abortion. The church has expressed a particular concern about abortions for minor abnormalities such as club foot, cleft lip or cleft palate.[71]

Churches and their members support women in crisis pregnancies and/or who have experienced a miscarriage or abortion through practical support and advice and counselling services, either through personal initiative, the pastoral ministries of individual congregations and parishes, or through specific pro-life charities.

Campaign groups[edit]

There are a range of campaign groups, operating in either Northern Ireland or across the United Kingdom or the island of Ireland as a whole, with policy positions on abortion in the region.

Prominent campaign groups which are supportive of a conservative policy include:

Prominent campaign groups which are supportive of a liberal policy include:

The English left-wing journalist Polly Toynbee has described the law in Northern Ireland as discriminatory against women as it "forbids them from having an abortion in their own home country."[72] However, Bernadette Smyth, the leader of the Precious Life group, has said: "Women's health is not in danger. Women are not dying because they cannot get abortion."[73]

In March 2013, a DUP representative in the Northern Ireland Assembly, Jim Wells, proposed an amendment to the law "to restrict lawful abortions to NHS premises, except in cases of urgency when access to NHS premises is not possible and where no fee is paid".[74] In response, Amnesty International asked the Assembly's Justice Committee to reject the full amendment, claiming that "the restrictive abortion laws and practices and barriers to access safe abortion are gender-discriminatory, denying women and girls treatment only they need".[75] An Amnesty International poll in 2014 indicated that a majority of people in Northern Ireland appeared to agree with changes in abortion law in three particular situations i.e. where a pregnancy has occurred due to rape, or incest, or where a fatal foetal abnormality (or life-limiting condition) has been diagnosed in the unborn child.[76]

The Justice Minister in the Northern Ireland Executive, David Ford (a member of the Alliance Party) subsequently issued a public consultation on amending the criminal law on abortion; the consultation opened in October 2014 and closed in January 2015. The call for consultation took into consideration cases where "there is a diagnosis in pregnancy that the foetus has a lethal abnormality".[77] and cases where "women have become pregnant as a result of sexual crime".[77] However, Mr Ford also wrote that "it is not a debate on the wider issues of abortion law – issues often labelled as 'pro-choice' and 'pro-life'".[77]

Crown dependencies[edit]

Although Jersey, Guernsey, and the Isle of Man are not part of the United Kingdom, as they are part of the Common Travel Area, people resident on these islands who choose to have an abortion have travelled to the UK since the Abortion Act 1967.[78]

Jersey[edit]

It is lawful in Jersey to have an abortion in the first 12 weeks of pregnancy[79] so long as specific criteria are met; it is still lawful but with more stringent criteria between 12 and 24 weeks. The criteria were established in the Termination of Pregnancy (Jersey) Law 1997.[80]

Guernsey[edit]

It is lawful in Guernsey to have an abortion in the first 12 weeks of pregnancy[81] so long as specific criteria are met; it is still lawful but with more stringent criteria between 12 and 24 weeks. The criteria were established in the Abortion (Guernsey) Law 1997.[82] Other Channel Islands which are part of the Bailiwick of Guernsey (including Alderney, Sark and Herm) also come under the articles of this Law.

Isle of Man[edit]

From 24 May 2019,[83] it is lawful in the Isle of Man to have an abortion during the first 14 weeks of pregnancy at will, then until the 24th week, so long as criteria specified by the act are met, and then onwards if there is a serious risk of grave injury or death. Abortion is governed by the Abortion Reform Act 2019.[84]

History[edit]

Abortion was dealt with by the Ecclesiastical Courts in England, Scotland and Wales. Until the Reformation it was dealt with under the laws of the Catholic Church. The Ecclesiastical Courts dealt mainly with the issue due to problems of evidence in such cases. The Ecclesiastical Courts had wider evidential rules and more discretion regarding sentencing.[85] Although the Ecclesiastical Courts heard most cases of abortion, some cases such as the Twinslayers Case were heard in the Secular Courts. The old Ecclesiastical Courts were made defunct after the Reformation.

Later, under Scottish common law, abortion was defined as a criminal offence[citation needed] unless performed for "reputable medical reasons", a definition sufficiently broad as to essentially preclude prosecution.[when?]

The law on abortion started to be codified in legislation and dealt with in the courts of the state under sections 1 and 2 of Lord Ellenborough's Act (1803). The offences created by this statute were replaced by section 13 of the Offences Against the Person Act 1828. Under section 1 of the 1803 Act and the first offence created by section 13 of the 1828 Act, the crime of abortion was subject, in cases where the woman was proved to have been quick with child, to the death penalty or penal transportation for life. Under section 2 of the 1803 Act and the second offence created by section 13 of the 1828 Act (all other cases), the penalty was transportation for 14 years.

Section 13 of the 1828 Act was replaced by section 6 of the Offences Against the Person Act 1837. This section made no distinction between women who were quick with child and those who were not. It eliminated the death penalty as a possible punishment.

Transportation was abolished by the Penal Servitude Act 1857, which replaced it with penal servitude.

Section 6 of the 1837 Act was replaced by section 58 of the Offences against the Person Act 1861. Section 59 of that created a new preparatory offence of procuring drugs or instruments with intent to procure abortion.

From 1870, there was a steady decline in fertility, linked not to a rise in the use of artificial contraception but to more traditional methods such as withdrawal and abstinence.[86] This was linked to changes in the perception of the relative costs of childrearing. Of course, women did find themselves with unwanted pregnancies. Abortifacients were discreetly advertised and there was a considerable body of folklore about methods of inducing miscarriages. Amongst working-class women, violent purgatives were popular: pennyroyal, aloes and turpentine were all used. Other methods to induce miscarriage were very hot baths and gin, extreme exertion, a controlled fall down a flight of stairs, or veterinary medicines. So-called "backstreet" abortionists were fairly common, although their efforts could be fatal. Estimates of the number of illegal abortions varied widely; by one estimate, 100,000 women made efforts to procure an abortion in 1914, usually by drugs.

The criminality of abortion was redoubled in 1929, when the Infant Life (Preservation) Act 1929 was passed. The Act criminalised the deliberate destruction of a child "capable of being born alive". This was to close a lacuna in the law, identified by Lord Darling, which allowed for infants to be killed during birth, which would mean that the perpetrator could neither be prosecuted for abortion or murder.[87] There was included in the Act the presumption that all children in utero over 28 weeks' gestation were capable of being born alive. Children in utero below this gestation were dealt with by way of evidence presented to determine whether or not they were capable of being born alive. In 1987, the Court of Appeal refused to grant an injunction to stop an abortion, ruling that a foetus between 18 and 21 weeks was not capable of being born alive.[88][89] In May 2007, a woman from Levenshulme, Manchester, who had an illegal late-term abortion at ​7 12 months in early 2006 was convicted of child destruction under the Infant Life (Preservation) Act 1929.[90]

The pro-choice group the Abortion Law Reform Association was formed in 1936.

In 1938, the decision in R v. Bourne[91] allowed for further considerations to be taken into account. This case related to an abortion performed on a girl who had been raped. It extended the defence to abortion to include "mental and physical wreck" (Lord Justice McNaghtan). The gynaecologist concerned, Aleck Bourne, later became a founder member of the anti-abortion group Society for the Protection of Unborn Children (SPUC) [92] in 1966.

In 1939 the Birkett Committee recommended a change to abortion laws, but the intervention of World War II meant that all plans were shelved. Post-war, after decades of stasis, certain high-profile tragedies, including thalidomide, and social changes brought the issue of abortion back into the political arena.

The 1967 Act[edit]

The Abortion Act 1967 sought to clarify the law. Introduced by David Steel and subject to heated debate, it allowed for legal abortion on a number of grounds, with the added protection of free provision through the National Health Service. The Act was passed on 27 October 1967 and came into effect on 27 April 1968.[93]

Before the Human Fertilisation and Embryology Act 1990 amended the Act, the Infant Life Preservation Act 1929 acted as a buffer to the Abortion Act 1967. This meant that abortions could not be carried out if the child was "capable of being born alive". There was therefore no statutory limit put into the Abortion Act 1967, the limit being that which the courts decided as the time at which a child could be born alive. The C v S case in 1987 confirmed that, at that time, between 19 and 22 weeks a foetus was not capable of being born alive.[88] The 1967 Act required that the procedure must be certified by two doctors before being performed.

Later laws[edit]

Since 1967, Members of Parliament have introduced a number of private member's bills to change the abortion law. Four resulted in substantive debate (1975,[94] 1976,[95] 1979,[96] 1988,[97] and 1990[98]) but all failed. The Lane Committee investigated the workings of the Act in 1974 and declared its support.

Human Fertilisation and Embryology Act 1990[edit]

Changes to the Abortion Act 1967 were introduced in Parliament through the Human Fertilisation and Embryology Act 1990. The time limits were lowered from 28 to 24 weeks for most cases on the grounds that medical technology had advanced sufficiently to justify the change. Restrictions were removed for late abortions in cases of risk to life, foetal abnormality, or grave physical and mental injury to the woman. Some Members of Parliament claimed not to have been aware of the vast change that the decoupling of the Infant Life Preservation Act 1929 would have on the Abortion Act 1967, particularly in relation to the unborn disabled child.[citation needed]

Politicians from the unionist and nationalist parties in Northern Ireland joined forces in June 2000 to block any extension of the Abortion Act 1967 to Northern Ireland where terminations were allowed on a restricted basis.[99]

Human Fertilisation and Embryology Act 2008[edit]

There was widespread action by pro-choice groups to oppose any attempts to restrict abortion[100][101][102] via the Human Fertilisation and Embryology Bill (now Act) in Parliament (Report Stage and Third Reading, 22 October 2008[103]). MPs voted to retain the current legal limit of 24 weeks. Amendments proposing reductions to 22 weeks and 20 weeks were defeated by 304 to 233 votes and 332 to 190 votes respectively.[104]

A number of pro-choice amendments were proposed by the Labour MPs Diane Abbot,[105] Katy Clark and John McDonnell,[106] including NC30 Amendment of the Abortion Act 1967: Application to Northern Ireland.[107] However, it was reported that the Labour government at the time asked MPs not to table these amendments (and at least until Third Reading) and then allegedly used parliamentary mechanisms in order to prevent a vote.[108]

50th anniversary of the Abortion Act 1967 (UK)[edit]

In May 2017, the Labour Party under Jeremy Corbyn's leadership made a commitment to extend the Abortion Act 1967 to Northern Ireland.[109][110] In June 2017, the UK Government revealed plans to provide some type of free abortion services in England for women from Northern Ireland in an attempt to avoid a Conservative rebellion in a vote on the Queen's Speech in the context of the Conservative–DUP agreement.[111]

Statistics[edit]

Number of abortions[edit]

Percentage of abortions by gestational age in 2004.

In England and Wales, legal abortion statistics are published by the Department of Health and Social Care. The total number for 2018 was 205,295:[112]

  • 191,555 for residents of England;[113]
  • 9,053 for residents of Wales;[114] and
  • 4,687 for non-residents.[115]

Legal abortions were carried out on the following grounds in England and Wales:

  • 196,083 (97.7%) - risk of injury to physical or mental health of the pregnant woman;
  • 3,269 (1.6%) - substantial risk of serious physical or mental abnormality in the unborn child;
  • 1,104 (0.6%) - risk of injury to physical or mental health of any existing children of the family of the pregnant woman;
  • 145 - risk to life or to prevent grave permanent injury (non-emergency);
  • 7 - risk to life or to prevent grave permanent injury (emergency).[116]

Statistics for Scotland are published by NHS Scotland. The total for 2018 was 13,286.[117] A small number of women travel to Scotland from countries where terminations are not so accessible and may be counted as Scottish residents if they provide a temporary Scottish postal address.[118]

Legal abortions were carried out on the following main grounds in Scotland:

  • 13,121 (98.8%) - risk of injury to physical or mental health of the pregnant woman; and
  • 159 (1.2%) - substantial risk of serious physical or mental abnormality in the unborn child.[119]

Where there is only a small number of abortions for a particular ground, the number is suppressed by statisticians to avoid the risk of disclosing the identity of the persons involved, especially in smaller jurisdictions.

Statistics for Northern Ireland are published by the Department of Health. The total for 2017-2018 was 12.[120] As indicated, abortions are permitted in Northern Ireland if the act is to save the life of the mother, or if there is a risk of permanent and serious damage to the mental or physical health of the mother.

In 2018, 1,053 women from Northern Ireland travelled to England or Wales for an abortion; these were undertaken on the following grounds:

  • 1,034 (98.2%) - risk of injury to physical or mental health of the pregnant woman; and
  • 19 (1.8%) - substantial risk of serious physical or mental abnormality in the unborn child.[121]

In the same year, 2,879 women from the Republic of Ireland travelled to England or Wales for an abortion. The main reasons for those abortions were as follows:

  • 2,788 (96.8%) - risk of injury to physical or mental health of the pregnant woman; and
  • 84 (2.9%) - substantial risk of serious physical or mental abnormality in the unborn child.[122]

The Republic introduced limited legislation on abortion through the Protection of Life During Pregnancy Act 2013. The Eighth Amendment of the Constitution of Ireland, which had (since 1983) acknowledged the right to life of the unborn child with due regard to the equal right to life of the mother, was repealed by a referendum in May 2018 and new abortion legislation was introduced through the Health (Regulation of Termination of Pregnancy) Act 2018.

Post 1967 there was a rapid increase in the annual number of legal abortions, and a decline in sepsis and death due to illegal abortions.[123] In 1978 121,754 abortions were performed on women resident in the UK, and 28,015 on non-resident women.[124] The rate of increase fell from the early 1970s and actually dipped from 1991-95 before rising again. The age group with the highest number of abortions per 1000 is amongst those aged 20–24. 2006 statistics for England and Wales revealed that 48% of abortions occurred to women over the age of 25, 29% were aged 20–24; 21% aged under 20 and 2% under 16.[125]

In 2004, there were 185,415 abortions in England and Wales. 87% of abortions were performed at 12 weeks or less and 1.6% (or 2,914 abortions) occurred after 20 weeks. Abortion is free to residents,[123] 82% of abortions were carried out by the public tax-paid National Health Service.[126]

The overwhelming majority of abortions (95% in 2004 for England and Wales) were certified under the statutory ground of risk of injury to the mental or physical health of the pregnant woman.[126]

By 2009 the number of abortions had risen to 189,100. Of this number, 2,085 are as a result of doctors deciding that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.[127]

In a written answer to Jim Allister, the Northern Ireland health minister Edwin Poots disclosed that 394 abortions were carried out in Northern hospitals for the period 2005/06 to 2009/10 with the footnote that reasons for abortions were not gathered centrally.[128]

190,800 abortions were notified as taking place in England and Wales in 2013. 0.2% fewer than in 2012; 185,331 were to residents of England and Wales. The age-standardised rate was 15.9 abortions per 1,000 resident women aged 15–44 years; this rate increased from 11.0 in 1973, peaked at 17.9 in 2007, and fell to 15.9 in 2013.[129] For comparison, the EU average is only 4.4 abortions per 1,000 women in child-bearing age.[130]

Since approval of abortion in the UK in 1967 to 2014, 8,745,508 abortions have been performed.

In 2018, the total abortions in England and Wales was 205,295. In this year, the abortion rate was highest for those of the age of 21, and 81% were for those who were single.[131]

Attitudes to abortion (Great Britain)[edit]

2004 Times/Populus poll[edit]

According to a 2004 The Times/Populus survey, Britons' feelings on abortion were:[132]

  • 75% of Britons believe abortion should be legal
    • 38% of Britons believe abortion should "always" be legal
    • 36% of Britons believe abortion should "mostly" be legal
  • 23% of Britons believe abortion should be illegal
    • 20% of Britons believe abortion should "mostly" be illegal
    • 4% of Britons believe abortion should "always" be illegal

NB: The survey compares the results to respondents' voting habits for mainland parties, indicating the possibility that Northern Ireland was not included in this survey.

2005 YouGov/Daily Telegraph poll[edit]

According to an August 2005 YouGov/Daily Telegraph survey, Britons' feelings toward abortion by gestational age were:[133]

  • 2% said it should be permitted throughout pregnancy
  • 25% support maintaining the current limit of 24 weeks
  • 30% would back a measure to reduce the legal limit for abortion to 20 weeks
  • 19% support a limit of 12 weeks
  • 9% support a limit of fewer than 12 weeks
  • 6% responded that abortion should never be allowed

2011 MORI poll[edit]

A 2011 poll by MORI[134] surveyed women's attitudes to abortion.

Asked if a woman wants an abortion, she should not have to continue with her pregnancy:

  • 53% Agreed
    • 15% Agreed very strongly
    • 12% Agreed strongly
    • 27% Agreed
  • 22% Neither agreed nor disagreed
  • 17% Disagreed
    • 8% Disagreed
    • 3% Disagreed strongly
    • 5% Disagreed very strongly
  • 5% Did not know
  • 3% Preferred not to answer

Asked if too many women do not think hard enough before having an abortion

  • 37% Agreed
    • 8% Agreed very strongly
    • 8% Agreed strongly
    • 21% Agreed
  • 26% Neither agreed nor disagreed
  • 28% Disagreed
    • 16% Disagreed
    • 7% Disagreed strongly
    • 5% Disagreed very strongly
  • 6% Did not know
  • 3% Preferred not to answer

Asked if it should be made more difficult for women to obtain abortions

  • 23% Agreed
    • 7% Agreed very strongly
    • 4% Agreed strongly
    • 12% Agreed
  • 23% Neither agreed nor disagreed
  • 46% Disagreed
    • 25% Disagreed
    • 9% Disagreed strongly
    • 12% Disagreed very strongly
  • 6% Did not know
  • 2% Preferred not to answer

Approved methods[edit]

Methodology is time-related. Up to the ninth week medical abortion can be used (mifepristone was approved for use in Britain in 1991); from the seventh up to the fifteenth week suction or vacuum aspiration is most common (largely replacing the more damaging dilation and curettage technique); for the fifteenth to the eighteenth weeks surgical dilation and evacuation is most common. Approximately 30% of abortions are performed medically.[123]

In 2011, BPAS lost a High Court bid to force the Health Secretary to allow women undertaking early medical abortions in England, Scotland and Wales to administer the second dose of drug treatment at home.[135]

See also[edit]

Bibliography[edit]

  • Ormerod, David; Hooper, Anthony (2011), "Homicide and related offences: abortion", in Ormerod, David; Hooper, Anthony (eds.). Blackstone's criminal practice, 2012. Oxford: Oxford University Press. pp. 226–230. ISBN 9780199694389.
  • Richardson, P.J., ed. (1999). Archbold: criminal pleading, evidence and practice. London: Sweet & Maxwell. ISBN 9780421637207. Chapter 19. Section III. Paras 19-149 to 19-165.
  • Ormerod, David C. (2011), "Section 16.5 Further homicide and related offences: Child destruction and abortion", in Ormerod, David C. (ed.), Smith and Hogan's criminal law (13th ed.), Oxford New York: Oxford University Press, pp. 602–615, ISBN 9780199586493.
  • Card, Richard (1992), "Abortion law", in Card, Richard; Cross, Rupert; Jones, Philip (eds.), Criminal law (12th ed.), London: Butterworths, pp. 230–235, ISBN 9780406000866.

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External links[edit]