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Opinion
“This week’s abortion jail case is complex. Reforming the law is still the right thing to do”
2 years ago
6 min read
Sometimes, people need abortions in situations that are complicated, traumatic and chaotic. The answer should never be prison, says Moya Crockett.
It is shocking, nauseating, enraging. That a woman could be sent to prison in England in 2023 for an illegal abortion – prosecuted under a law introduced in the Victorian era – feels like a step back into the dark. This week, the 44-year-old woman was jailed after pleading guilty to an offence under Section 58 of the Offences Against the Person Act 1861. The law states that women who unlawfully procure abortions could be “kept in penal servitude for life”; the woman in this case received a sentence of 28 months, 14 of which will be spent in custody. The case has sparked a national outcry.
It is shocking. But this case is also complex. The court heard that the woman – who has three children, including one with special needs – ended her pregnancy via medication in May 2020, following a telephone consultation with an abortion provider. This was midway through the first lockdown, when abortion clinics were shuttered up and down the country and a temporary “pills by post” scheme (made permanent last summer) meant people could legally take abortion medication at home up to 10 weeks’ gestation. However, BBC News reports that the woman “was not honest” with the abortion service about how far along her pregnancy was. She first learned she was pregnant in December 2019, months before Covid-19 forced abortion clinics to close. Doctors concluded she eventually terminated the pregnancy when the foetus was between seven and eight months’ gestation, a stage at which it is possible for babies to be born prematurely and survive.
She will likely be judged harshly in the court of public opinion, in addition to the punishment meted out by the criminal justice system. Society doesn’t tend to treat women with much empathy when they make choices that seem incomprehensible to others – particularly when they’re mothers, who are supposed to be endlessly sensible and self-sacrificing, or if there is a suggestion their romantic or sexual relationships may have been complicated. (The court heard that the woman had moved back in with her estranged partner at the start of lockdown in 2020; she was pregnant by another man.) The reality, though, is that difficult, chaotic and traumatic contexts often surround cases where women seek abortions outside the law. In an open letter last year, more than 60 clinicians, organisations, unions and legal professionals noted that women who need abortions beyond the existing legal framework “are often vulnerable”, and many have “a complicated obstetric history or a history of mental health problems”.
It’s offensive that reproductive rights in Britain are still shaped by a law introduced in the 19th century
The experts – who included leading barristers and representatives of the Royal College of Obstetricians and Gynaecologists, the Royal College of Midwives and Amnesty International UK – said that these women “represent a tiny minority” of those who seek abortions. (Almost 90% of legal abortions were performed under 10 weeks in 2021, well below the standard legal limit of 24 weeks.) Women who are ending pregnancies outside of the law “are doing so out of sheer desperation”, the letter continued. In other words: sometimes people need abortions in dire, ugly and dangerous situations. If someone is less terrified by potential criminalisation than they are by the prospect of having a baby they feel they can’t cope with, they might break the law to end their pregnancy. It’s not nice or comfortable to think about. But it is reality.
So what should happen now? Our abortion laws are in urgent need of reform – not because we should have no limits on terminations, but because jail is so obviously not the right place for vulnerable, traumatised women who pose no threat to the general public. Currently, abortion access in England and Wales is regulated by the 1967 Abortion Act and the Offences Against the Person Act 1861; for a visual metaphor, imagine a creaking, outdated, 50-year-old house built on dangerous Victorian foundations. The 1967 act made abortion legal in Great Britain if the procedure meets a number of conditions, including that it be approved by two doctors. If these conditions aren’t met or abortion takes place after 24 weeks, it remains a crime. And all the sanctions contained in the 1861 act – which says abortion can be punished by life in prison – can still be applied.
On a symbolic level, it’s offensive that reproductive rights in Britain are still shaped by a law introduced in the 19th century, when women could not vote and had no legal protection against marital rape. But medical experts have been calling for reform for years, too – not because they’re standard-bearers for radical feminist legislation, but because the current system is outdated and impractical. According to the World Health Organization (WHO), criminalising abortion doesn’t make people less likely to have abortions, but it is linked to increased maternal deaths. The British Medical Association (BMA) believes “abortion is, and should be treated as, a medical issue”: that it should be regulated, but without the threat of criminal sanctions. That abortion remains a criminal offence “is stigmatising for both women and healthcare professionals” and hampers doctors’ ability to “provide supportive care and treatment”, says the BMA.
Unacceptable waiting times are already creating barriers to legal abortion access in many parts of the UK
It’s not just the 1861 law that experts want to reform. When the Abortion Act was passed in 1967, the BMA argues, having an abortion came with “significant” health risks – but the procedure has become much safer over the years, meaning all those conditions for legal access are now “restrictions which do not reflect the current evidence base”. Meanwhile, campaign group Doctors for Choice UK says the mandatory requirement for two doctors’ signatures before someone can have an abortion can “cause unnecessary delays” and “restrict access”. If you know someone who’s needed an abortion recently – if you, yourself, have needed one – you’ll likely be aware that unacceptable waiting times are already creating barriers to legal access in many parts of the UK. Abortion services in the UK are in crisis, with some women being forced to travel hundreds of miles for appointments or waiting weeks to be seen. A recent report found women trying to access abortion in many parts of the country are “being denied the rights they should expect”, with factors including insufficient funding leading to poorer standards of care. When seeking a legal abortion requires the stressful navigation of a broken healthcare system, that stress should never be compounded by the threat of criminalisation.
Change is unlikely to come immediately; Rishi Sunak has made clear he has no intention of changing the law. But politicians are not immune to public pressure. We should make clear that the status quo cannot stand – and ahead of the next election, we can make abortion law reform a key voting issue in the UK. Women should never be sent to prison for having an abortion. We deserve reproductive rights that treat abortion for what it is: essential healthcare, not a crime.
Images: Getty
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