Is Abortion Legislation Being Weaponised Against Women?

Article by Sydney Kowalczyk

In recent years, the number of women (and girls) subjected to police investigations over abortion has increased, sometimes leading to prosecutions. This observation has led to discussions around the legislation governing abortion rights and how the law is being weaponised by law enforcement. Accordingly, many people are advocating for the decriminalisation of abortion in the UK.

Historically, under the Offences Against the Person Act 1861 (OAPA), abortions were illegal and punished with imprisonment. Consequently, during this time, many women turned to unlawful and unsafe ‘backstreet’ abortions. Growing public concern and increasing recognition of women’s autonomy led to the implementation of the Abortion Act 1967, which liberalised the rules surrounding the deliberate termination of a pregnancy. However, the OAPA has never been repealed. 

Under the Abortion Act, a pregnancy terminated by a “registered medical practitioner” is legal provided that “two registered medical practitioners” believe that her situation fits into one of the four exceptions and make this finding “in good faith”. The four permissible circumstances are outlined under s.1(1)(a-d). Namely, that the twenty-four-weeks from gestation limit has not yet been reached; having a child is deemed to negatively impact the mother’s health (either physical or mental) or pose a life-threatening risk to the mother; there is a “substantial risk” that the child would be “seriously handicapped” when born. 

Evidently, these four circumstances are deliberately vague, reflecting society’s generally protective attitude towards women’s reproductive rights. This has been further reinforced by the implementation of abortion clinic buffer zones (as per s.9 Public Order Act 2023), which were introduced in response to groups of protestors gathering outside abortion clinics in an attempt to discourage and shame female patients out of getting an abortion. This protective stance has been reflected in both France, which is considering enshrining abortion rights in its constitution this year and Northern Ireland, where when abortion was finally legalised (just in 2019), it simultaneously removed all associated criminal penalties.

These tolerant approaches can be contrasted with those of Poland, for example. Poland implemented a de facto ban on abortions. Consequently, the number of clandestine abortions increased, and the birth rate significantly decreased to reflect women’s clear opposition to these restrictions. 

Certain people are alarmed by the falling birth rate (a trend witnessed all over the world) and wish to scrap abortion in hopes of securing a stable population rate. Many people blame couples refusing to have children on feminism; others prefer to blame capitalism. These rhetorics lead me to believe that abortions are the straw man in this debate. Therefore, I reject the argument that re-criminalising abortion is in the public interest, and instead, I assert that decriminalising them completely works in favour of public policy.

I am convinced that an increase in the birthrate would not come about as a result of enforcing criminal penalties for illegal abortions but rather as a consequence of promoting social change (such as abolishing the pink tax, stopping the spread of misinformation regarding hormonal replacement therapy and making childcare more affordable). As Nils Jareborg famously asserted, criminal law should be implemented “as last resort”, the Ultima Ratio principle.

An argument some supporters of OAPA make is that there is a risk of third parties coercing women to have abortions. However, people who oppose OAPA pointed out that coerced abortion could be prosecuted under other laws which still protect access to abortion whilst not criminally punishing women (laws relating to GBH or poisoning, for example).

Back in 2020, during the COVID-19 pandemic, the “pills-by-post” scheme was trialled, whereby medical abortions were authorised to be carried out at home after a teleconsultation (rather than having to take the pills in a clinic). In 2023, Carla Foster took abortion pills after the cut-off point (there is a 10-week limit for a medical abortion at home). In the Court of Appeal, Dame Victoria Sharp asserted that cases like this should be treated with “compassion” and “not punishment” when reducing her prison sentence. Similarly, Bethany Cox was charged with using drugs to abort (contrary to s.58 OAPA) but was ultimately acquitted. 

It appears that when the defendant pleads “not guilty”, the prosecution often struggles to put forward the necessary evidence before the court. Some women suspected of deliberately ending their pregnancy in a way contrary to the legal criteria could have been victims of late miscarriages or genuinely mistaken as to how far along they were pregnant (not realising they surpassed the time limit). In criminal cases, the burden of proof weighs on the prosecution; this would explain why there are so few convictions in relation to illegal abortions. From this angle, it does seem that the Act is being weaponised against vulnerable women, but I would argue that completely decriminalising abortion is not a magic bullet solution; Italy illustrates this argument well. In Italy, the majority of gynaecologists refuse to perform abortions (on either moral or religious grounds) despite abortions being legal. 

On the contrary, some people might argue that since the UK permits legal abortions, the law safeguards women`s autonomy. Whilst I acknowledged this point by contrasting UK laws with those in Poland or Italy, I would emphasise the fact that the punishment in England and Wales for an illegal abortion carries a maximum sentence of life imprisonment. For context, in Sudan, those who abort can be punished with up to five years in prison; in Afghanistan, she might face up to seven years of incarceration, and in Texas, a woman is rarely at risk of facing criminal penalty (since the punishment falls onto the person performing the abortion). Juxtaposing the punishment for an illegal abortion in England and Wales with that of these significantly more conservative and strict places highlights the fact that England and Wales have the most severe punishment for an illegal abortion in the entire world.

The Royal College of Obstetricians and Gynaecologists has been gaining significant media attention when it was revealed that their healthcare workers were told not to report patients to the police when suspecting them of having had an illegal abortion. This has been justified predominantly on the grounds that these prosecutions are not being made in the public interest. 

In England and Wales, generally, there is no legal obligation to report a crime to the police (unless one is under a duty of care or in very specific cases). The NHS confidentiality code states that “staff are permitted to disclose personal information” to prevent a “serious crime”. However, the fact that a definition of “serious crime” has not been included, coupled with the code asserting the need for “either explicit patient consent or a robust public interest” being in place to justify reporting as well as the general law surrounding reporting crimes, suggests that by volunteering this information to the police, the medical staff are acting against public policy. I would further add that this witch hunt also leads to an enormous waste of police resources.

As long as abortion is governed by criminal law, the police can test suspects following unexplained pregnancy losses. The police test for abortion drugs and seize women`s phones in search of evidence; they look through Google searches, messaging history and data from period-tracking apps, which could be (and was) weaponised against women.

In conclusion, I argued that the legislation governing abortion in England and Wales is outdated and is being weaponised against women. The concept of “illegal abortions” existing in criminal law has the inherent effect of encouraging medical staff to volunteer information to the police and forcing traumatised women who fell victim to potentially natural miscarriages to attend a trial. Evidently, the original purpose of the Act (to guide women away from unsafe ‘backstreet’ abortions) has been defeated. In response, I held that although completely decriminalising abortion might seem like the be-all and end-all solution, it is not enough. Following Northern Ireland’s example, all the criminal penalties related to illegal abortions ought to be removed. This is significant because the punitive nature of OAPA often deters women from seeking aftercare following an unlawful termination. Further, The Royal College’s proposals should be implemented whereby abortion would be placed under medical regulation, as opposed to being governed by criminal law.