A Criminal Legacy: The Offences Against the Person Act 1861
Historically, the Offences Against the Person Act 1861 (OAPA 1861) made abortion illegal and punishable by imprisonment. This drove many women towards unsafe backstreet procedures. Public concern and increasing recognition of women’s autonomy led to the Abortion Act 1967, which liberalised access to abortion. However, OAPA 1861 was never repealed, meaning abortion remains criminal unless performed within the narrow statutory exceptions.
Under the Abortion Act 1967, a termination is lawful only if carried out by a registered medical practitioner and approved in good faith by two registered medical practitioners who believe the woman’s circumstances fall within one of four exceptions under section 1(1)(a to d). These include the twenty four week gestational limit, risks to the mother’s physical or mental health, life threatening danger to the mother and substantial risk of serious handicap in the child.
These criteria are deliberately broad, reflecting a protective stance towards reproductive autonomy. This approach has been reinforced by buffer zones introduced under section 9 of the Public Order Act 2023, designed to shield patients from harassment outside clinics.
International comparisons highlight this trend. France is considering constitutional protection for abortion rights. Northern Ireland, when legalising abortion in 2019, simultaneously removed all criminal penalties. In contrast, Poland’s de facto ban has led to increased clandestine abortions and a falling birth rate.
Birth Rates, Public Policy and the Ultima Ratio Principle
Some argue that falling birth rates justify re-criminalising abortion. These narratives often blame feminism or capitalism for declining family sizes. Yet abortion is a straw man in this debate. Increasing birth rates requires social reform, not criminal punishment. Measures such as abolishing the pink tax, improving childcare affordability and addressing misinformation about hormonal replacement therapy would have far greater impact.
As Nils Jareborg famously stated, criminal law should be a last resort: the Ultima Ratio principle.
Supporters of OAPA 1861 claim that criminalisation prevents coerced abortions. Opponents respond that coercion can be prosecuted under other offences, such as grievous bodily harm or poisoning, without criminalising women seeking healthcare.
Pills by Post, Recent Cases and Judicial Compassion
During the COVID-19 pandemic, the pills by post scheme allowed medical abortions at home following teleconsultation. In 2023, Carla Foster took abortion pills after the ten-week limit. In the Court of Appeal, Dame Victoria Sharp emphasised that such cases should be treated with compassion, not punishment, when reducing her sentence.
Similarly, Bethany Cox was charged under section 58 of OAPA 1861 but acquitted. These cases illustrate the difficulty of proving unlawful abortion beyond reasonable doubt. Women suspected of wrongdoing may have experienced late miscarriages or miscalculated gestational age. The burden of proof rests with the prosecution, which helps explain the low conviction rate.
From this perspective, OAPA 1861 appears weaponised against vulnerable women. Yet complete decriminalisation is not a perfect solution. Italy demonstrates this, where most gynaecologists refuse to perform abortions despite legality, citing moral or religious objections.
Punishment, Autonomy and International Comparison
Some argue that because the UK permits legal abortion, women’s autonomy is protected. However, the maximum sentence for unlawful abortion in England and Wales is life imprisonment. This is harsher than in Sudan, where the penalty is up to five years, Afghanistan, where it is up to seven years, and Texas, where women rarely face criminal liability at all. England and Wales therefore impose the most severe punishment for unlawful abortion in the world.
The Royal College of Obstetricians and Gynaecologists has advised healthcare workers not to report suspected unlawful abortions to police, arguing that such prosecutions are not in the public interest.
In England and Wales, there is generally no legal obligation to report crime unless a duty of care applies. The NHS confidentiality code permits disclosure only to prevent a serious crime. Still, the lack of a definition of serious crime and the requirement for explicit consent or a robust public interest justification suggest that voluntary reporting contradicts public policy. This practice also wastes police resources.
Surveillance, Miscarriage and the Weaponisation of Criminal Law
As long as abortion remains within criminal law, police can investigate unexplained pregnancy losses. This includes testing for abortion drugs, seizing phones, reviewing search histories and accessing data from period tracking apps. These methods have already been used against women and risk criminalising natural miscarriages.
Conclusion
The legislation governing abortion in England and Wales is outdated and increasingly weaponised against women. The concept of illegal abortion encourages unnecessary reporting, traumatises women experiencing miscarriage and undermines the original purpose of OAPA 1861, which was to protect women from unsafe procedures.
Complete decriminalisation is not a standalone solution, but removing criminal penalties, as Northern Ireland has done, is essential. The punitive nature of OAPA 1861 deters women from seeking aftercare and fosters fear. Abortion should be regulated medically, not criminally, in line with proposals from the Royal College of Obstetricians and Gynaecologists.
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