The British women being prosecuted for their abortions
There was uproar when the US turned back the clock on women’s reproductive rights – but new cases show access to terminations is under threat here, too
RIGHT NOW, TWO women are facing life sentences for allegedly having illegal abortions. The first, aged 25, has pleaded not guilty to taking misoprostol – routinely prescribed for at-home abortion – at 31 weeks of pregnancy. The second, in her forties, entered a not guilty plea last month to taking abortion medication at 28 weeks. Both will stand trial next year.
Alabama? Missouri? No, the first woman is in Oxford, the second in Staffordshire.
‘After Roe v Wade was overturned, everybody is worried about what’s going to happen in America,’ says Katherine O’brien of the British Pregnancy Advisory Service (BPAS). ‘It’s like – hang on, we’ve still got criminal laws here.’
In fact, abortion in England, Wales and Scotland is illegal. The 1967 Abortion Act partly decriminalised it to allow terminations up to 23 weeks and six days, if signed off by two doctors who agree it would be harmful to the woman’s physical or mental health to continue. After 24 weeks, it’s only if her life is at risk or in cases of serious foetal abnormality.
During the pandemic, legislation was passed allowing ‘pills by post’ – meaning early abortion medication could be taken at home, following a virtual consultation, up to 10 weeks into a pregnancy.
Anything outside these parameters can be criminalised under archaic laws. The Oxford woman is being tried under the Offences Against the Person Act of 1861, intended to tackle backstreet abortionists in Victorian times. The Staffordshire woman has been charged under the Infant
Life Preservation Act of 1929.
They are not the only two. New Home Office data reveals that recorded crimes for abortions rose from eight in 2012 to 40 in 2021. Police figures show that in the past eight years, at least 17 women have been investigated for illegally aborting, or attempting to abort, a pregnancy. ‘It feels like there is an increased interest in seeking to prosecute women,’ says O’brien.
BPAS is now regularly contacted by the police asking for the records of women who have sought abortions. MSI Reproductive Choices UK confirmed that they have also been approached. ‘Increasingly, these seem like fishing expeditions in which the police have no evidence that a woman has committed a crime,’ says O’brien. She is concerned that women may be deterred from seeking medical help following stillbirth or miscarriage, for fear of ending up under investigation – like the woman kept in police custody for 36 hours following a stillbirth and now suffering from PTSD. Or the 15-year-old whose phone was trawled during a year-long investigation, before a coroner ruled she’d had a stillbirth.
O’brien tells me about another woman who contacted BPAS about an abortion, before deciding against it. ‘She then had a stillbirth. In the hospital, she mentioned she’d previously asked about a termination and was reported to the police. The fact she had even considered it is being used as grounds for suspicion. That’s scary.’
There is, say experts, no public interest in prosecuting women who end pregnancies. In August, lawyers, medics and campaigners wrote to the Director of Public Prosecutions, urging him to stop the current court proceedings and ensure no other women are charged. He said future cases will receive additional scrutiny from senior CPS lawyers, but made no allowances for those already facing trial.
‘It’s the ultimate discrimination against women,’ says barrister Charlotte Proudman, who signed the letter. ‘The 1861 Act dates from before women were even allowed to vote.’ BPAS, says O’brien, now includes legal advice in its materials. ‘We have to warn women that you can’t obtain abortion medication on someone else’s behalf – that’s a crime. And you can’t take it later for a different pregnancy if, say, you have a miscarriage before it arrives and then keep it – that’s a crime.’
It’s not known how many women have been imprisoned over abortion in the UK but, where they’ve been prosecuted, the right questions have not always been asked. O’brien cites Durham woman Natalie Towers, 24, who was jailed for two years and six months in 2015 for taking pills after 32 weeks. She collapsed in the dock when sentenced. ‘Is pursuing criminal convictions really the appropriate response to incredibly vulnerable women? Do they deserve prison, or do they need support?’ she asks.
Proudman points out that the UK is starting to fall behind the global trend towards decriminalisation. Abortion is now legal on demand in Spain and France for the first 14 weeks of pregnancy, in Italy up to 90 days, in New Zealand up to 20 weeks and in the Republic of Ireland up to 12 weeks. In Canada, it is legal at any stage, no matter the reason. Since 2020, it has been legalised in Argentina, Colombia and Thailand, and decriminalised in Mexico and South Korea.
By contrast, there was an outcry in July when the UK Government removed commitments to abortion and sexual health rights from a multi-nation statement on gender equality, described as ‘backtracking on women’s rights’ by Caroline Noakes, Women and Equalities Committee chair.
Proudman thinks we may see more women being criminalised here. ‘The fact that women are already on trial sends a strong message that this will be prosecuted,’ she says. ‘Frankly, it’s medieval.’