Abortion law and decriminalisation
In three of the four nations of the UK, abortion remains a crime under legislation passed in 1861. Abortion has recently been decriminalised in Northern Ireland, meaning that it is now seen as a matter of healthcare rather than criminal law.
In 1861 the Offences Against the Persons Act made it illegal to procure your own abortion and to provide abortions to others. In 1967, Parliament passed the the Abortion Act, which is still in place today. This legislation gives doctors a medical exemption (legal defence) for performing abortions and allows women to access safe, legal abortion if authorised by two doctors. The 1967 act was amended in 1990 when a general time limit of 24 weeks was established, with exceptions for certain circumstances such as when there is a risk of death or serious permanent damage to women or a serious fetal abnormality.
Outside of the restrictions set out in the 1967 Act, abortion remains a crime that carries a sentence of life in prison.
What makes abortion a crime?
The 1861 Offences Against the Person Act ("the 1861 Act") made it a crime for a woman or another person to procure a miscarriage with an instrument or ‘poison or other noxious thing’ under any circumstances, punishable by life imprisonment.
The history of these offences takes us back to 1803, the first instance of legislative prohibition of abortion, when procuring an abortion could result in a potential death sentence if there was quickening or, if without quickening, a 14-year prison sentence or transportation. Those provisions were eventually carried forward into the 1861 Act and were passed without any debate. These provisions have survived until today.
Section 58 is one of the harshest penalties for unlawful abortion found in Europe, with abortion providers as well as women potentially facing life imprisonment. There is no distinction between medical professionals and others, and no consideration of the reasons why a woman might want to end a pregnancy.
There have been several cases in recent years of people being referred to the police under the relevant sections of the 1861 Act, with some successful prosecutions.
In 1929 the Infant Life Preservation Act prohibited the intentional destruction of “the life of a child capable of being born alive … before it has an existence independent of its mother”, stating 28 weeks as the time a baby could exist independently of the mother. It allowed legal abortion provided it was done in good faith "for the purpose only of preserving the life of the mother".
The 28 week gestational limit was carried forward into 1967 Abortion Act, but was later amended to 24 weeks by the 1990 Human Fertilisation and Embryology Act. The 1990 act also allowed for circumstances in which there was no time limit: when there is a risk of death or serious permanent damage to women or a serious fetal abnormality.
What makes abortion lawful?
The 1967 Abortion Act ("the 1967 Act") provides that abortions carried out within the conditions set out in the Act will not be considered a crime under other legislation.
These conditions mean that in practice two doctors must be of the opinion, formed in good faith, that the woman’s circumstances fit one of the following grounds:
the continuance of the pregnancy would involve risk to the life of the pregnant woman greater than if the pregnancy were terminated;
the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman;
the pregnancy has NOT exceeded its 24th 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;
the pregnancy has NOT exceeded its 24th 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 any existing child(ren) of the family of the pregnant woman;
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.
The law sets out broad criteria, but doesn’t provide specific examples of when the grounds of the Act would be met. Decisions about the seriousness of a disability or what constitutes a risk to health are left in the hands of doctors in consultation with the pregnant woman.
Abortions must be carried out by a registered medical practitioner in an NHS hospital or an approved place. The power to define the facilities in which an abortion can be lawfully carried out has been devolved to the Health Secretaries in England, Wales and Scotland. Since 2019, changes made in the definition of the ‘class of place’ where lawful abortions can take place mean that doctors can prescribe the necessary medication and women can take the second abortion pill, misoprostol, at home. This followed a campaign by pro-choice activists that highlighted the impact of these legal requirements on women who had to return to a clinic for the second pill, with the risk of passing the pregnancy on their way home.
The 1967 Act also gives doctors with a conscientious objection to abortion the right to opt out of abortion care.
In July 2019, the UK Parliament voted in favour of two amendments on an otherwise technical parliamentary bill that saw the extension of abortion rights and same-sex marriage to Northern Ireland.
Section 9 of the Northern Ireland (Executive Formation etc) (NIEF) Act 2019 deals with abortion law in Northern Ireland and had two main components:
first, it provided for decriminalisation of abortion in relation to sections 58 and 59 of the 1861 Act, and a moratorium on abortion-related criminal prosecutions from 22 October 2019
second, it placed the UK Government under a duty to bring forward regulations to introduce a new legal framework for abortion in Northern Ireland by 31 March 2020
The Abortion (Northern Ireland) Regulations 2020 allow for:
abortion on request until a gestation of 12 weeks (certification by one registered medical practitioner)
abortion in circumstances where the continuance of the pregnancy would involve risk of injury to the physical or mental
health of the pregnant woman which is greater than if the pregnancy were terminated until a gestation of 24 weeks (certification by two registered medical practitioners)
abortion in cases of severe fetal impairment or fatal fetal abnormality (no gestational limit)
abortion if the pregnancy poses a risk to life or grave permanent injury to physical or mental health of pregnant woman (no gestational limit)