Abolish this archaic law that makes criminals of innocent women

According to one leading provider of abortion services in the UK, police investigations into women suspected of unlawfully ending their own pregnancy have increased substantially in recent years.

Earlier this year, MSI Reproductive Choices reported that this type of criminal investigation was very rare before 2018, but that it was aware of many more happening since then. While the number of women prosecuted for this offence remains small – four in the past 20 years – these police investigations can be traumatic for women, some of whom may have lost their babies, and the risk of prosecution can hang over them for months.

MPs have an important opportunity to decriminalise abortion in England and Wales this week when they vote on a number of amendments to the criminal justice bill. Abortion remains a criminal offence under the Offences Against the Person Act 1861, but the Abortion Act of 1967 provides that it is lawful when carried out in accordance with its conditions: when two doctors are of the opinion that continuing with a pregnancy of up to 24 weeks’ gestation would risk physical or mental injury to a pregnant woman or her existing children; or, in the case of pregnancies over 24 weeks, when two doctors believe that termination is necessary to prevent grave permanent injury to the woman, or if not doing so would be to risk her life, or that if the child were born it would suffer serious handicap.

Abortion is a vital form of healthcare for women and should be regulated as such. One likely reason for the increase in police investigations is as an unintended consequence of making abortion available via telemedicine since the pandemic. This is an important innovation that allows women with pregnancies of less than 10 weeks’ gestation to be sent the two abortion pills after a remote consultation. As a result, some women who have miscarriages or stillbirths may experience suspicion because in theory it is easier to mislead the medical practitioner conducting the remote consultation, whether intentionally or unintentionally.

Women who have faced criminal investigation include one who gave birth at home more than three months prematurely. She performed CPR on the boy; her husband called an ambulance and her son survived. However, she had previously explored the option of an abortion, only to be told she was over the 24-week limit. Her husband was arrested on suspicion of procuring an illegal abortion and they were both the subject of a year-long police investigation.

Another case dealt with by the abortion provider BPAS involved a woman under 18 who could not access an abortion during lockdown and was later refused a termination because she was over the legal limit; when she later delivered a stillborn baby she was subject to a police investigation.

Women should not have to face this. Among the tabled amendments to the criminal justice bill, which will be subject to a free vote, is the option to decriminalise abortion up to 24 weeks – meaning that no woman, or doctor acting with her consent, could be prosecuted in relation to abortions carried out before this time limit. This amendment would also ensure that no woman ending her own pregnancy would ever receive a prison sentence. In addition, the director of public prosecutions would have to give their personal consent for any prosecution of a woman who ends her own pregnancy after the 24-week limit.

Reform is long overdue, and MPs must act this week.