When is it too late?
Every so often, the outcome of a criminal case is so unexpected that it triggers a debate about a law that we used to think was working just fine
The tragic case of a mother sentenced this week to serve a prison term for aborting a foetus at 32-34 weeks gestation has aroused widespread concern and several calls for a change in the law. It probably shouldn’t have done. At least, not in the way that many campaigners have suggested.
It is important to acknowledge the underlying human story when it comes to subjects like this and I will do so below. But any change in the law will be too late to help the woman in question, so it makes sense to start a discussion with the legal principles that people are calling to be changed. Anyone trying to follow the debate this past week is likely to have been confused by what they read or heard. I certainly was.
The Abortion Act 1967 made it lawful for medical practitioners to carry out an abortion in circumstances where the health of the mother or child was at serious risk. The Act has been revisited and amended on numerous occasions since 1967, perhaps most notably in 1990 when Parliament introduced different criteria for abortions before and after the end of the 24th week. The most recent change is as current as last year, making permanent the temporary arrangement introduced during Covid by which medication to induce an abortion could be prescribed by a health practitioner without seeing the patient and could then be administered by the patient themselves.
Given all the legislative activity over the past 60 years, it has surprised many observers that last week’s conviction and sentence was under an act of parliament dating back to Victorian times. It is seen by some commentators as a sign that the prosecution must have been hunting around for some arcane rule by which to get the woman.
Actually, not at all. If the use of ancient laws was a sign of a lawyer getting desperate, prosecution for murder would be deprecated. In fact, the outlawing of murder is so old that it pre-dates Parliament. It is a crime under common (ie judge-made) law.
The criminalisation of abortion first appeared in English law in the 13th century, but only for abortions after the baby had started to move in the womb. Up to that stage in the pregnancy, it was legal to abort. Several changes were made in the 19th century, culminating in the Offences Against the Person Act 1861, which made all abortions illegal from that point until 1967 when abortions in certain circumstances were legalised again under the Abortion Act.
But it has never been legal in England for a mother to abort her own child as late as 30-plus weeks. Anyone who was surprised to find last week that it remains a criminal offence today has clearly not given much thought to the subject. That cannot be said about many of the campaigners who have expressed a sense of outrage as though something unexpected had occurred in the court last Tuesday.
One of the first out of the traps with criticism was Stella Creasy, appearing on Sky News and BBC Newsnight to assert that all abortions are still illegal in the UK. The Abortion Act, she claimed, only allows exemption from prosecution. Despite being corrected by BBC Newsnight’s Victoria Derbyshire, Creasy repeated the claim. In her performance on Sky News, she said that the Government didn’t know what the law was if they thought otherwise. What Creasy said is quite wrong. The first line of the 1967 Act says “a person shall not be guilty of an offence under the law relating to abortion when …” Regrettably, Creasy was still repeating this nonsense in the House of Commons on Thursday.1
Also in Parliament, Thangam Debbonnaire MP, Labour’s Shadow Leader of the House, expressed concern that the outcome of the case “will deter women from seeking urgent medical and healthcare support that they need”. If that is the case, I rather suspect it is purely because people keep repeating untruths about the case. One of the real tragedies of the current case is that, if the woman in question had sought medical care as opposed to deliberately lying in a phone call to the British Pregnancy Advisory Service, she would not have gained access to the medication that resulted in her jail term.
But that is far from the only tragedy. If she had pleaded guilty at an earlier stage, her sentence would have been suspended. The law likes to frame it as a lesser sentence for an early plea. But the reality for the woman concerned is that it wasn’t her decision to obtain the drugs illegally that got her a prison sentence. Nor the action of taking the medication and aborting the child. It was the decision not to plead guilty at the first time of asking.
By all accounts, this is a heartbreaking case. The woman has three other children, one with special needs, who will be deprived of her care for the duration of the prison term. Some newspapers have reported the circumstances which drove her to obtain the medication illegally. But I wouldn’t be surprised if the press reports contain only part of a complex set of facts, so I will refrain from commenting on the personal context that led her to seek out the medication illegally.
What, now, is the change that people want to see? There are several.
Stella Creasy says that she wants abortion to be a legal right. But she also wants the law in England and Wales to be on the same basis as Northern Ireland, where permitted abortions are carefully defined (with cut-offs at 12 and 24 weeks) and unauthorised abortions are a criminal offence if carried out by anyone other than the expectant mother herself. So more Creasy confusion there. (If I can look these things up, why can’t our legislators?)
Dame Diana Johnson MP wants to see late abortion moved from the criminal law to regulation. This is largely playing with words. Like Stella Creasy, Dame Diana holds up the position in Northern Ireland as the goal to be emulated here. But whilst it is true that abortion law in the province is now set out in regulations, those regulations don’t remove criminality. Regulation 11 specifically makes it an offence for anyone except the mother to intentionally terminate or procure the termination of a pregnancy in any way other than in the circumstances laid out in the regulations.
If decriminalisation of the expectant mother’s role in an abortion – regardless of how late it is carried out – is what campaigners really want, let them say so expressly. I’m not sure whether their failure to do so this past week is because they haven’t thought it through or because they have thought it through and they fear that there wouldn’t be a majority in Parliament for it.
Whilst some MPs might say that the recent case gives us good reason to decriminalise this whole area, others clearly think that telling an outright lie in order to procure an abortion of a 30-week foetus is not something to be voted through.
The Government’s position? They don’t have one. As the Minister pointed out, “on matters such as abortion and assisted dying, it has been a long-standing approach by Governments of both parties … that those are matters for the House and not for Government”.
Whilst I don’t have any evidence one way or the other, my instinct is that the majority view – in the House and in the country – would be for a re-think of the punishment, rather than a significant change in what is lawful. For the woman in the current case, that will presumably be a matter for the Court of Appeal.
The Hansard notetakers were so confused by what she said that they misreported it as “They do not have a situation where they are exempted from prosecution”, which would have been even more bizarre. But I have watched the exchange on TV and Ms Creasy actually said “it is not a theoretical issue to consider whether women in England and Wales have a legal right to an abortion. They do not. We have a situation where they are exempted from prosecution.”