No dilution, no new red tape: it’s time to fully decriminalize abortion in England and Wales | Stella Creasy

WWhen the far right stokes culture wars, women’s bodies are often their battlefield. Those who oppose women’s right to choose are well-funded and well-organized; those who too often support complacent measures such as term limits and telemedicine consider abortion law “settled.” But parliament is currently considering updating the abortion law as part of efforts to amend the Criminal Justice Act and end the Victorian criminalization of basic healthcare. It is essential that we win this battle, but if we do not anticipate the setbacks that are coming, there is a real danger that we will lose more than we gain.

Women in England and Wales are already denied control over our bodies – technically it is still illegal to have an abortion at any time during pregnancy under the 1861 Offenses Against the Persons Act (OAPA). The 1967 Abortion Act stated women and those who helped them are free from prosecution under strict conditions, but the impact of the crime remains. In the past ten years there have been 67 prosecutions, with many more women investigated. In 2021 alone 40 were subdued for such an invasion of their privacy.

Recent examples include a 15-year-old girl who suffered a stillbirth at 28 weeks. She faced a year-long police investigation, but it was only halted after an autopsy revealed her pregnancy loss was due to natural causes. The experience left her with lasting mental health problems.

Many people are aware of sections 58 and 59 of the OAPA, which make abortion itself a crime, but section 60, which covers concealment of the birth of a child, is also being weaponized. That has happened over the past ten years 91 studies in suspected cases of concealment, where those who experience a pregnancy loss report it to the police. The majority were teenagers who did not know they were pregnant, or women who experienced “crisis pregnancies” – patients who needed a counselor, not a police officer, at their hospital bedside.

While the case for decriminalization is clear, the way to do it in our current climate is not. Those opposed to abortion – whether in the NHS, the civil service or parliament – ​​are taking every opportunity to eat away at access to this service by demanding regulation and new guidance in the light of any legal changes.

And this is not an idle threat. The willingness of those opposed to abortion to use their positions to restrict access is reflected in the ongoing debacle over buffer zones – safe zones of 150 meters to prevent women from being harassed outside abortion clinics. Last year, parliament voted to introduce buffer zones around abortion clinics, and then explicitly voted to ban ‘silent prayer’ in these zones. Government draft guideline later claimed that silent prayer should be allowed in these areas. Undermining women’s rights in this way is a strategy that is likely to be far more successful than any attempt to ban abortion entirely.

When Carla Foster was jailed for taking abortion pills at the end of her pregnancy, the response showed that the public is compassionate in believing that no woman should go to prison for abortion, and is aware that this behavior is not something anyone should encourage. Simply repealing existing laws would raise many concerns about those who undergo abortions that fall outside the scope of the 1967 law. And we know that those who oppose abortion are willing to demand service cuts, using the specter of “late-term abortion” as cover. So it’s likely that those who help women having abortions will be the next targets of investigations.

To pre-empt such a response, we must learn from Northern Ireland, which now has the most progressive abortion laws in Britain – sections 58 and 59 have been withdrawn and instead there is now regulation and legislation governing access to abortion, based on human right. Crucially, the Secretary of State has a direct responsibility to ensure access on this basis. This has meant that even ministers who oppose this service have had to argue for its provision or face sanctions in court. The Northern Ireland Lock requires them to ensure that facilities comply with international human rights obligations, so nothing “punitive” can be done to prevent access – and that is why why buffer zones already exist there.

Replicating this lock – which requires our laws to comply with international human rights – would be an essential safeguard against the growing evidence of anti-abortion activism behind the scenes, as we have seen with buffer zones. It would mean that whatever regulations, guidance or legislation is produced, none can be used to restrict access in England and Wales without express democratic consent. Without this, we run the risk that any reform of abortion law will be used by those who oppose this service to restrict backdoor access.

With the Criminal Justice Bill – our best chance for a generation to address the injustice of criminalizing abortion – we cannot leave an open target for those who want to use reproductive rights to control women. With an approach similar to Northern Ireland’s, we can stop locking up women and instead enshrine our human right to choose.

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