What are the Abortion Laws in England & Wales?

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Do you know your rights to an abortion under Law in England and Wales?

Having an Abortion Today

Before we dive into abortion in the legal sense, let’s look at the process for undertaking an abortion today.

The process of having an abortion is dependent on gestational age. Gestational age is the measure for how far along the pregnancy is.

The options?

In attempt to promote choice and autonomy, an individual can choose to have a medical or surgical abortion. Factors influencing this include your individual circumstances and gestational age.

A medical abortion involves taking two different medications to end the pregnancy, usually 1 or 2 days apart. The pregnancy is passed in a similar way to menstruation and typically occurs several hours after you have taken the second dose of medicine.

  • If the gestational age is below 10 weeks, you can take the second dose of pills at home. Although, currently because of COVID, the whole procedure can occur at home.
  • If the gestational age is 10 weeks or over the medication is usually given at a clinic or hospital, where the women waits to pass the pregnancy.

A surgical abortion involves an operation. A suction tube or specialised instruments are used to remove the pregnancy from the womb. Most women go home the same day.

For more information on the process of undergoing an abortion visit Nice.

Women holding a poster about pro choice
Abortion Laws in England & Wales

Now: The Law

There are three legal statutes that we will have to consider to fully understand abortion rights.

This is an overview of the legal instruments in place which regulate abortion laws in England & Wales. Scotland’s laws are held in Common Law. The Laws stated do not extend to Northern Ireland. I will explore Northern Irish Abortion Laws in a future blog.

Offences Against the Person Act 1861

The OAPA states that “every woman, being with child, who, with intent to procure her own miscarriage” administers drugs or uses instruments to procure an abortion is liable to life in prison. OAPA also goes on to say that procuring drugs to cause an abortion is also a criminal offence.

However, the OAPA Act has been overridden by the Abortion Act 1967 (AA) but it still maintains that abortion is a criminal offence.

There are issues around the criminalisation of abortion. There are many arguments in favour of abortion being decriminalised. These range from the law being outdated, discriminating against women, change in public opinion, at odds with legal principle of bodily autonomy and the punishment being disproportionate. Abortion becoming a legal practice, with certain limitations, does not mean deregulation of abortion, rather, limits will be set at a profession standard in accordance with clinician’s views.

Abortion Act 1967 (AA) amended by Human Fertilisation and Embryology Act 1990 (HFEA)

The AA 1967 provides a framework of circumstances where an abortion can be lawfully performed. This Act was amended by the HFEA 1990.

The law states that an abortion is legal if it is performed by a medical practitioner and is authorised by two doctors in good faith. In addition, one of these doctors must agree one or more of the following grounds applies, as laid out in HFEA 1990:

  1. The pregnancy has not exceeded 24 weeks and that the continuance of the pregnancy would involve risk, greater than if the pregnancy was terminated, of injury to physical or mental health of the pregnant woman or her family; or
  2. that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or
  3. that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or
  4. 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.

Whilst, an abortion is founded on choice, it can only be granted under a gestational age of 24 weeks for purely social grounds, such as not wanting to have a child. Over 90% of abortions are carried out under 14 weeks and in 2019, 98% of abortions (202,975) were performed under ground C. A vast amount of the abortions carried out under ground C were because of a risk to the woman’s mental health.

In 1967, when the AA was written into law, medical advances were not as sophisticated and not centred around making abortion easily accessible. Initially, only a surgical abortion was possible. But this was rightly amended, in my opinion, by the HFEA, when medical abortions were possible and removed the requirement for all abortions to be surgical in nature. The amendment did not only respond to technological advancements but allowed for women’s rights to be fulfilled in a less physically invasive manner, although it is recognised that medical abortions still have a significant mental toll on women. It did this, in part, by expanding the premises allowing abortions to take place outside of NHS premises. Further advances have allowed women to take the second drug necessary for a medical abortion outside a clinical setting, for example at home.

Since COVID this has been temporarily expanded and the government is allowing both drugs to be taken at home for abortions below 10 weeks. I will explore this topic further in another blog on home abortions, specifically whether this provision should be extended after COVID.

An area that continues to be problematic in terms of the law on abortion is the fact that AA 1967 is silent as to the definition of handicapped, which is a ground for abortion. A pregnancy may be terminated at any gestational age if 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 impact of this is that the decision as to whether to administer abortions is left entirely to clinicians, without any legal oversight. Although, I would argue that clinicians are best placed to make this medical decision.

Infant Life (Preservation) Act 1929 (ILPA)

Although the ILPA 1929 has since been updated through changes to the AA 1967 and HFEA 1990, its effect is still maintained to some extent, at least in a theoretical sense, because it has not been repealed.  The impact of this is that technically, there are still valid laws of England and Wales that make it illegal to “destroy the life of a child capable of being born alive”. Much like the OAPA 1861, the ILPA is an outdated statute which no longer matches the majority of societal wishes.

The law is now in a state that resembles a disjointed caterpillar of contradictions, with the AA 1967 now allowing termination to be undertaken at any gestational age under specific grounds.

The issues and ethics around abortion, whilst considerably more socially accepted is tempered with the ethics of individual circumstances. Whilst some people name themselves “pro-choice” and others “pro-life”, these are often as simply disconnected in reality. One may feel sympathy for the 16-year-old rape victim and protective of the mother whose life would be put at risk through giving birth, but still refuses to allow a woman the dignity of choice and ultimate bodily autonomy to choose if and when they bring a child into their life. I would argue that the disparity between ethics and sympathy could be solved first by the decriminalisation of abortion in the eyes of the law, and then complete decriminalisation in the eyes of society.

Sources

fpa abortion laws

Parliament Publication, accessed 29th January 2021

bma, the law and ethics of abortion

bma, the removal of criminal sanctions for abortion position paper, accessed 5th February 2021

nice, resources on abortion for gestation periods before 14 weeks.

bpas, 10 reasons to decimalise abortion, 5th February 2021.

*Also thank you to Dr Jean McHale for her help and advice when writing this series.

 

 

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