The Bill to “decriminalise” abortions is legally flawed and would remove the protections women have against non-consensual and unsafe abortions. Both pro-choice and pro-life individuals must oppose it.
On Monday, the House of Commons voted by 172 to 142 to give a first reading to a Bill which would “decriminalise” abortions. This Bill is now at the bottom of the pile for Private Members’ Bills to get a second reading, and so is likely to die for lack of time. Nonetheless, this Bill is incredibly problematic and should be opposed by all; regardless of their stance on abortion. This is because this Bill would remove the protections women have against non-consensual and unsafe abortions.
Abortion in the England and Wales (and Scotland) is lawful when it happens within the terms of the Abortion Act 1967. In theory, this requires two doctors to certify that an abortion is medically necessary but, in practice, the law has been applied to provide for abortion on demand until 24 weeks.
The “Victorian” piece of legislation that the proponents of the Bill seek to repeal are sections 58 and 59 of the Offences Against the Person Act 1861; the same “archaic” piece of legislation that prohibits assault, grievous bodily harm and poisoning. These provisions criminalise unlawful abortions. This means that when people act under the Abortion Act 1967 an abortion is not criminalised. Insofar as the proponents of the Bill describe this as abortion being criminalised, it is legally inaccurate. It would be like saying killing in self-defence is criminalised.
Repealing sections 58 and 59 would remove the possibility of redress in cases of unsafe/unlicensed abortions by third parties and in cases of forced abortions . These points are best illustrated with two examples.
In R. v Scrimaglia (1971) 55 Cr.App.R. 280 the defendants, who were not medically qualified, performed an unsafe abortion on a woman for £35: this had put the woman at risk. This was in circumstances where an abortion could have been lawfully and safely obtained on the NHS. They were convicted of the offence of procuring an abortion and sentenced to 3 years in prison. The woman was not prosecuted.
In R. v Magira  1 Cr.App.R.(S.) 68 the husband wanted his wife to have an abortion. She wanted to keep the baby. So he went online and ordered abortion pills that he gave her without her realising. Fortunately, they did not work and the child was born healthy. He was convicted of attempting to procure an abortion and sentenced to three years in prison.
It is uncontroversial that those convictions were appropriate. Yet repealing sections 58 and 59 will make it much harder to secure such convictions.
When proposing the Bill, Diana Johnson MP said that cases of non-consensual abortions could be prosecuted under the general criminal law. 200 lawyers writing to The Guardian expressed the same view. They are wrong. Such instances would only be criminalised if there was an actual assault on the woman. But in cases where pills are slipped into someone’s food there is no assault. In such cases, a conviction would only be possible under the poisoning offences and these require showing that the woman’s life was endangered or that the person doing it intended to injure her (ss. 23, 24 OAPA 1861). But this is not necessarily the case. It certainly was not in R v Fletcher, another case where a woman was tricked into taking abortion pills. Similarly, repealing these provisions would make it impossible to prosecute those who coerce woman into going to an abortion clinic to have an abortion – as happened in this case.
Even if a conviction in cases of forced abortion can be obtained on the basis that the woman was injured, this might not describe the wrong she felt. She wanted that child. She considered it as her baby. She had already decided on a name. From her point of view in that instance she is not the only victim; her child is as well. Only a conviction on the basis of section 58 reflects that fact. Far from protecting women’s right to choose, this Bill would weaken their protections against being forced to abort.
In addition, repealing sections 58 and 59 would mean that there would no longer be any limits as to what time or on what grounds an abortion can be obtained. The limits set out in the Abortion Act 1967 only work if abortion outside the Act is prohibited. If you remove that prohibition then there would be no limits whatsoever. For example, it is currently unlawful to abort a baby on the ground of sex. By repealing sections 58 and 59, this would mean that there would be no legal prohibition on sex-selective abortions. Indeed this was acknowledged by Diana Johnson MP who said when proposing the Bill “[w]ith decriminalisation, professional bodies that are best placed to take action can continue to prohibit this as a ground for abortion”. This means that if a professional body of doctors wanted to, they could authorise sex-selective abortions without any input whatsoever from Parliament.
The main reason for Johnson’s Bill was that women who self-induce their abortions should not be prosecuted. But it is fanciful to suggest that women who order abortion pills online and take them before 24 weeks are at the risk of prosecution because they did not jump through the hoops of the Abortion Act. There has been no such prosecution in England and Wales (the position was the same in the United States prior to Roe v Wade). The only instance I could find where a woman was prosecuted for inducing her own abortion was R v Catt; but this was a case where the abortion happened at nearly 40 weeks (i.e. when the baby should have been born), that case is indistinguishable from infanticide. Indeed, the Johnson Bill by keeping the Infant Life (Preservation) Act 1929 would not change that outcome.
Valid concerns have been raised about difficulties under the current law which requires two doctors to see the woman and for the pill to be taken at the clinic, especially for women who are unable to leave home. There are good arguments to be made for streamlining the process under the Abortion Act to accommodate those concerns. But that is where those proposals must be made. Repealing sections 58 and 59 is not the way to go. It would weaken the protections women have and open the door for sex-selective abortions. Parliament should not have voted for Johnson’s Bill.
 The text of the Bill has not yet been published on Parliament’s website. But the campaign supporting it says it would “would decriminalise abortions up to 24 weeks of pregnancy through the removal of sections 58 and 59 of the 1861 Offences Against the Person Act.” Similarly, when presenting the Bill in Parliament, Diana Johnson MP said that it was “to repeal certain criminal offences relating to such terminations.” This is corroborated by the comments of Johnson and the 200 lawyers writing to the Guardian relating to prosecution under “general criminal law” for non-consensual abortions. This means that the Bill would indeed seek to repeal sections 58 and 59 rather than merely amending them.
The reference, in the debates, to abortion still being criminalised after 24 or 28 weeks mean that the Bill is not seeking to repeal the Infant Life (Preservation) Act, which criminalises the intentional killing of a viable baby. I do not know what the Bill would do in relation to section 60 of the Offences Against the Person Act. This criminalises concealing the birth of a child. Professor Sally Sheldon – who is the academic brain behind this Bill – has suggested, in an article defending the repeal of sections 58 and 59, that it should also be repealed.
Rajiv Shah is a PhD candidate in Law at the University of Cambridge.
Featured photo by David Iliff. License: CC-BY-SA 3.0.