The Royal College of Obstetricians and Gynecologists’ call to decriminalize abortion – and the announcement that it will tell its members not to report women to the police if they believe they may have ended their pregnancies illegally – is a major intervention in debate.
Concerns about existing laws in England and Wales emerged last year when a woman was sentenced to more than two years in prison. in prison for obtaining drugs to induce an abortion after the legal limit, which is typically 24 weeks.
The 28-month sentence, which was halved and suspended on appeal – with a judge saying it called for ‘compassion, not punishment’ – sparked outrage and calls for a change in the law, dating back to the Offenses Against the Person Act 1861 ..
Carla Foster, who pleaded guilty, is alleged to have knowingly misled the British Pregnancy Advisory Service (BPAS) by saying she was under the ten-week limit for a medical abortion at home, when she thought she was about 28 weeks pregnant. .
Doctors later concluded that the fetus was between 32 and 34 weeks pregnant at the time of the termination. Earlier this month, another woman, Bethany Cox, was found not guilty of using drugs to procure an illegal abortion after prosecutors decided not to present evidence following a three-year investigation.
While such prosecutions are uncommon, they are on the rise. Only three women were convicted of having an illegal abortion between 1861 and November 2022, but in addition to Foster and Cox’s cases, three more women accused of illegal abortions will appear in court this year. In addition, police investigated at least 67 cases of illegal abortion in the ten years to April 2022.
Terminations up to 28 weeks – later reduced to 24 weeks – were legalized under the 1967 Abortion Act, but only if two doctors agreed that continuing the pregnancy would be risky to the woman’s physical or mental health.
The investigations into women occurred because the 1861 law was never repealed, so anyone who has an unregulated abortion or attempts to terminate a pregnancy without medical supervision is acting unlawfully. Anyone who helps them can also be prosecuted.
In contrast, while Northern Ireland only legalized abortion in 2019, all associated criminal penalties were simultaneously abolished.
RCOG, along with the Faculty of Sexual and Reproductive Health (FSRH), the British Society of Abortion Care Providers and the Faculty of Health, have joined campaigners and MPs in calling for change to the ‘outdated and outdated’ law.
There is no general legal obligation to contact the police about a crime (whether for the public or healthcare professionals), so the RCOG has the right to actively tell its members not to do so.
The NHS code of practice that governs patient and doctor confidentiality states that “staff may disclose personal information to prevent and assist the detection, investigation and punishment of serious crimes.” However, serious crime is not defined and the code says that “there must be explicit patient consent or robust public interest justification”.
There are a number of laws that require disclosure to police, for example when healthcare professionals encounter cases of female genital mutilation (FGM) in girls under the age of 18, as highlighted by RCOG. But RCOG says such cases for healthcare professionals working in women’s health are rare and, in line with the NHS Code of Conduct, it tells healthcare professionals that they must “adhere to their professional responsibility to avoid any disclosure of confidential patient information, otherwise they will be faced with possible suitability to practice procedure”.
So while what RCOG and others have said may seem radical at first glance, it has a strong basis in the law around crime reporting in England and Wales, as well as the NHS code of practice. They were likely prompted to draw up the guidelines at this time because of fears that “deeply traumatized” and vulnerable women, as they put it, are increasingly exposed to harrowing investigations and prosecutions.
Ultimately, RCOG and others believe that abortion care should be removed from criminal law and instead placed under medical supervision.