Could abortion really be banned in the UK?

Roe v Wade was a ground-breaking ruling by the US Supreme Court that recognised the constitutional right to abortion.

After 50 years, this landmark decision was overturned in June, putting power into the hands of individual states.

Now, more people are looking into the way abortion access is decided in the UK to see if something similar to Roe v Wade could happen here.

It may surprise you to hear that, despite more than 200,000 terminations being performed in England and Wales in 2021, women there can technically be prosecuted for terminating a pregnancy.

That’s because of an act that dates back to the Victorian era – the 1861 Offences Against the Person Act.

It criminalised abortions, using archaic language in sections 58 and 59 to decree that: “Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanour, and being convicted thereof shall be liable… to be kept in penal servitude.”

Just over a hundred years later the 1967 Abortion Act was passed. It was this that legalised abortions with an authorised provider – but the deliberate ending of a pregnancy remained illegal.

The law is framed in a way that means abortion is not a right. Instead, it gives an exemption from prosecution in certain circumstances – when two doctors agree it would be risky for the mental or physical health of the woman.

Former justice secretary Robert Buckley says it’s extremely rare for anyone to be criminalised under these laws – but it’s certainly possible.

In fact, two British women are facing charges for having an abortion, including one who obtained the pills from an authorised provider. These alleged crimes fall under the Offences Against a Persons Act. It carries a maximum sentence of life in prison.

That is why Labour MP Stella Creasy says she’s campaigning to change the law by making an amendment to the Bill of Rights.

This new bill aims to replace the Human Rights Act. Justice Secretary Dominic Raab says it will “revise and reform the flaws” in our current protections concerning freedom of speech and the right to trial by jury.

Currently, the right to abortion is not included in that bill – but Ms Creasy plans to table an amendment that would seek to protect the right to abortion, thereby rendering sections 58 and 59 of the Offence against the Persons Act obsolete.

Ms Creasy tabled a similar bill in Northern Ireland in 2019 that had cross-party support. It means women in Northern Ireland have the human right to abortion – unlike in England and Wales, where that original Victorian law still applies.

Sam Leimanis agrees. She has had two abortions and is now an activist challenging the stigma surrounding the subject. She says that the right to abortion does need to be protected in England and Wales.

“I think it needs an update. We can’t be governed by laws from 1861 – it doesn’t make any sense. It’s time to update (the law), especially because these medical procedures have been updated.

“They’re a lot safer now and this is a routine thing to go through. We shouldn’t be governed by laws from the past.”

But Mr Raab said the current laws in place actually prevent UK courts from having to consider new cases concerning abortion. Such cases could seek to redefine abortion and lead to a court ruling in favour of getting rid of or limiting abortion.

Mr Raab said that putting this power in the hands of the courts instead of elected MPs puts the current abortion access at greater risk of being lowered.

But Ms Leimanis disagrees with this – she thinks MPs cannot always be trusted to make the right decisions.

“I don’t think MPs always make decisions in the interests of the public. When you look at the attitudes in the UK it’s pro-choice and they really advocate for abortion. I’m not sure that’s always the case in parliament. We’ve seen MPs push against that.”

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One of those MPs is Conservative Danny Kruger, who has voiced his belief that abortions concern the welfare of another living being – the unborn – and that abortion is a topic that should be up for political debate.

He isn’t the only MP to agree with the US’s decision to overturn Roe v Wade – DUP MP Carla Lockhart has said she “welcomes the clear recognition of unborn life”.

Of course, not everyone wants to see abortion enshrined in law. There are some who would rather see the whole procedure become illegal or at the very least changed to limit access.

One of those people is pro-life medical doctor Calum Miller. He believes enshrining the right to abortion would be a mistake as it would lead to abortions being carried out based on sex or up until the point of birth.

He uses Canada as an example – calling it a “haven” for sex selective abortion.

“The reality would be sinister. Making abortion a right would be very dangerous and an overwhelming number of women would reject this.”

But he said the UK should not catastrophise about abortion being banned here. He argues that some steps need to be taken to limit current access. Like Ms Leimanis, he thinks current laws are outdated, but for very different reasons.

“Of course, abortion is not going away. We can have a sensible conversation where the public thinks the abortion law is outdated and should follow science.

“There’s no realistic chance of anywhere in the UK banning abortion. We aren’t having that conversation. The one we should have (is) about whether our current limits are too extreme.

“We’ve seen ultrasounds develop. Science has prepared us for another conversation for this and we need to put the law in line with the science.”

It does not look as though the UK will ban abortion any time soon. However, there could be more debate by MPs asking for the current laws in place to be reconsidered and changed.

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