‘This Victorian-era law isn’t fit for purpose’: Is abortion finally going to be decriminalised?

Abortion could soon be decriminalised in England and Wales, as MPs consider overhauling a “cruel” 162-year-old law.

People who get an abortion beyond legal time limits can face criminal prosecution in England and Wales.

Five women have faced this charge in English courts over the past year – up from four in total over the previous 55 years.

Advocates have decried the “alarming” increase. But amendments to the new Criminal Justice Bill tabled by Labour MPs could see such criminal sanctions removed entirely.

“Women who are ending their pregnancies outside of the existing law are often immensely vulnerable and doing so under desperate circumstances,” said Diana Johnson, the MP for Kingston Upon Hull North and one of the MPs who plans to table an amendment.

“It is in nobody’s best interests to threaten these women with outdated Victorian criminal laws that are now 161 years old.”

At least 52 women have been investigated by police over the past eight years on the basis of suspicions that abortions have taken place after the legal limit, Johsnon said.

What is the abortion law in the UK?

Most of the time, accessing an abortion in the UK is fairly straightforward. One-in-three women in the UK will have an abortion before they turn 45.

Under the 1967 Abortions Act, abortion is legal before 24 weeks in England, Scotland and Wales, provided two doctors authorise the procedure.

Abortions after 24 weeks are only permitted if the woman is at risk of severe physical or mental injury, or there is a severe foetal abnormality.

Late-term abortions are extremely rare – but if a woman gets an abortion after 24 weeks, she is at risk of criminal prosecution under the Offences against the Person Act 1861. Abortion is decriminalised in Northern Ireland, after a 2019 referendum repealed this 19^th century legislation.

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The Victorian-era law isn’t fit for purpose, said Jemima Olchawski, chief executive of the Fawcett Society.

“It’s beyond belief that our legal system allows women to be prosecuted or imprisoned for ending their pregnancy,” she said. “The law that allows this to happen is so old it predates women’s suffrage and it’s in no way fit for purpose in modern-day Britain. It wasn’t written by us, and it doesn’t work for us.

In July, a mother of three was sentenced to more than two years in prison after she took abortion pills at 32 weeks’ gestation.

And in 2021, a 15-year-old girl spent more than six months waiting to know whether she would face criminal charges after going through a natural stillbirth.

Such tragic cases are the tip of the iceberg, warns Clare Murphy, chief executive at the British Pregnancy Advisory Service.

“For every woman who ends up in court, many others are subjected to prolonged police investigations,” she said.

“Now, more than ever, we owe it to women to put an end to the threat of distressing police investigations, prosecution, and jail time for ending their pregnancies.”

What would the amendment to the Criminal Justice Bill do?

The new amendment would not change the rules around abortion. As now, doctors would still only provide abortions up to 24 weeks, except in cases where the woman is at risk of severe physical or mental injury or a severe foetal abnormality is detected.

But women who procured an abortion after this time period would no longer face the threat of prosecution. The Criminal Justice Bill does not apply to Scotland, so these amendments will make no difference to women north of the border.

“Decriminalisation would not change time limits or the regulation of abortion but make it a medical, not criminal matter, with a secretary of state charged with ensuring women can access this basic right,” said Stella Creasy, a Labour MP who has made several bids to pass legislation decriminalising abortion.

Creasy also called for the implementation of buffer zones around abortion clinics to prevent protesters harassing women.

MPs voted in favour of an amendment to introduce such zones more than a year ago, but as yet they haven’t been built. In Northern Ireland buffer zones were introduced as part of the legislation to decriminalise abortion.

“It cannot be right that in one part of the UK women have more human rights than another,” Creasy said.

The Criminal Justice Bill is currently at the second-reading stage; debate will progress over the next few weeks.