Abortion has been legal on a wide number of grounds in England and Wales and Scotland since the Abortion Act 1967 was passed. At the time, this legislation was one of the most liberal laws regarding abortion in Europe. However, the situation in Northern Ireland is somewhat different (see below).
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In England and Wales and Scotland, section 1(1) of the Abortion Act 1967 now reads:
Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith -
- (a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or
- (b) that the termination of the pregnancy is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or
- (c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated
- (d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.[1]
Subsections (a) to (d) were substituted for the former subsections (a) and (b) by section 37(1) of the Human Fertilisation and Embryology Act 1990.
"The law relating to abortion"
In England and Wales, this means sections 58 and 59 of the Offences against the Person Act 1861 and any rule of law relating to the procurement of abortion.[2]
In Scotland, this means any rule of law relating to the procurement of abortion.[2]
"Terminated by a registered medical practitioner"
See Royal College of Nursing of the UK v DHSS [1981] AC 800, [1981] 2 WLR 279, [1981] 1 All ER 545, [1981] Crim LR 322, HL.
Place where termination must be carried out
See sections 1(3) to (4).
The opinion of two registered medical practitioners
See section 1(4).
"Good faith"
See R v Smith (John Anthony James), 58 Cr App R 106, CA.
Determining the risk of injury in ss. (a) & (b)
See section 1(2)
"Risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman", s. 1(1)(a)
In R v British Broadcasting Corporation, ex parte ProLife Alliance, Lord Justice Laws said:
Section 58 of the Offences against the Person Act 1861 provides:
Section 59 of that Act provides:
"Unlawfully"
For the purposes of sections 58 and 59 of the Offences against the Person Act 1861, and any rule of law relating to the procurement of abortion, anything done with intent to procure a woman's miscarriage (or in the case of a woman carrying more than one foetus, her miscarriage of any foetus) is unlawfully done unless authorised by section 1 of the Abortion Act 1967 and, in the case of a woman carrying more than one foetus, anything done with intent to procure her miscarriage of any foetus is authorised by the said section 1 if the ground for termination of the pregnancy specified in subsection (1)(d) of the said section 1 applies in relation to any foetus and the thing is done for the purpose of procuring the miscarriage of that foetus, or any of the other ground for termination of the pregnancy specified in the said section 1 applies.[6]
"Felony" and "misdemeanor"
See the Criminal Law Act 1967.
The offences under section 58 and 59 are indictable-only offences.
An offence under section 58 is punishable with imprisonment for life or for any shorter term.[7]
An offence under section 59 is punishable with imprisonment for a term not exceeding five years.[8]
A death, of a person in being, which is caused by an unlawful attempt to procure an abortion is at least manslaughter.[9][10]
As to the effect of section 6(1)(a) of the Broadcasting Act 1990 in relation to broadcasting images of an abortion, see R v British Broadcasting Corporation, ex parte ProLife Alliance [2003] UKHL 23, [2004] 1 AC 185, [2003] 2 WLR 1403, [2003] 2 All ER 977, [2003] UKHRR 758, [2003] HRLR 26, [2003] ACD 65, [2003] EMLR 23, reversing R v British Broadcasting Corporation, ex parte ProLife Alliance [2002] EWCA Civ 297, [2002] 3 WLR 1080, [2002] 2 All ER 756, CA. That section was repealed by the Communications Act 2003.
The Abortion Act 1967 does not apply to Northern Ireland. The pieces of legislation governing abortion in Northern Ireland are sections 58 and 59 of the Offences against the Person Act 1861 and sections 25 and 26 of the Criminal Justice Act (Northern Ireland) 1945 (which are derived from the corresponding provisions of Infant Life (Preservation) Act 1929).
The Act allows abortion when necessary to protect the mother's physical and mental health. But, performing an abortion in Northern Ireland is an offence except in specific cases.[11] Abortion in Northern Ireland is only legal in exceptional circumstances where the life of the pregnant woman is at immediate risk and if there is a long term or permanent risk to her physical or mental health.[12] In a written answer to Jim Allister the Northern Ireland health minister Edwin Poots disclosed that 394 abortions were carried out in Northern hospitals for the period 2005/06 to 2009/10 with the footnote that reasons for abortions were not gathered centrally.[13]
An offence under section 58 is punishable with imprisonment for life or for any shorter term.[14]
Politicians from the unionist and nationalist parties in Northern Ireland joined forces on 20 June to block any extension of the Abortion Act 1967 to Northern Ireland where terminations are allowed on a restricted basis.[11]
Ultimately the current situation is that women from Northern Ireland have to travel to Britain or other European countries to access a safe and legal abortion. They then have to pay for procedure and also any associated costs such as travel and accommodation, having to pay anywhere up to the region of £2,000 depending on stage of pregnancy. Approximately 80,000 women have travelled from Northern Ireland to England or other European countries to access a safe and legal abortion since the enactment of the Abortion Act 1967.
The Northern Ireland Assembly has the authority to change the law to bring it in line with the rest of the UK. However, this unlikely to happen with the current membership of the Assembly as the majority of members are against any liberalisation in the law.
Although Jersey, Guernsey, and the Isle of Man are not part of the United Kingdom, as they are part of the Common Travel Area, people resident on these islands who need to have an abortion have traveled to the mainland UK since the Abortion Act 1967.[15]
It is lawful in Jersey to have an abortion in the first 12 weeks of pregnancy[16] so long as specific criteria are met: more stringent criteria between 12 and 24 weeks. The criteria were established in the Termination of Pregnancy (Jersey) Law 1997.[17]
It is lawful in Guernsey to have an abortion in the first 12 weeks of pregnancy[18] so long as specific criteria are met: it is still lawful but with more stringent criteria between 12 and 24 weeks. The criteria were established in the Abortion (Guernsey) Law, 1997.[19]
It is lawful in the Isle of Man to have an abortion in the first 24 weeks of pregnancy[20] so long as specific criteria are met. The criteria were established in the Termination of Pregnancy Act 1995.
Abortion was dealt with by the Ecclesiastical Courts in England, Scotland and Wales until the reformation. It was dealt with under the laws of the Catholic Church. The Ecclesiastical Courts dealt mainly with the issue due to problems of evidence in such cases. The Ecclesiastical Courts had wider evidential rules and more discretion regarding sentencing.[21] Although the Ecclesiastical Courts heard most cases of abortion, some cases such as the Twinslayers Case were heard in the Secular Courts. The old Ecclesiastical Courts were made defunct after the Reformation.
Later, under Scottish common law, abortion was defined as a criminal offence unless performed for 'reputable medical reasons,' a definition sufficiently broad as to essentially preclude prosecution.
The law on abortion started to be codified in legislation and dealt with in government courts under sections 1 and 2 of Lord Ellenborough's Act (1803). The offences created by this statute were replaced by section 13 of the Offences against the Person Act 1828. Under section 1 of the 1803 Act and the first offence created by section 13 of the 1828 Act, the crime of abortion was subject, in cases where the woman was proved to have been quick with child to the death penalty or transportation for life. Under section 2 of the 1803 Act and the second offence created by section 13 of the 1828 Act (all other cases) the penalty was transportation for 14 years.
Section 13 of the 1828 Act was replaced by section 6 of the Offences against the Person Act 1837. This section made no distinction between women who were quick with child and those who were not. It eliminated the death penalty as a possible punishment.
Transportation was abolished by the Penal Servitude Act 1857, which replaced it with penal servitude.
Section 6 of the 1837 Act was replaced by section 58 of the Offences against the Person Act 1861. Section 59 of that created a new preparatory offence of procuring poison or instruments with intent to procure abortion.
From 1870 there was a steady decline in fertility, linked not to a rise in the use of artificial contraception but to more traditional methods such as withdrawal and abstinence (Szreter; Fisher). This was linked to changes in the perception of the relative costs of childrearing. Of course, women did find themselves with unwanted pregnancies. Abortifacients were discreetly advertised and there was a considerable body of folklore about methods of inducing miscarriages. Amongst working class women violent purgatives were popular, pennyroyal, aloes and turpentine were all used. Other methods to induce miscarriage were very hot baths and gin, extreme exertion, a controlled fall down a flight of stairs, or veterinary medicines. So-called 'backstreet' abortionists were fairly common, although their bloody efforts could be fatal. Estimates of the number of illegal abortions varied widely: by one estimate, 100,000 women made efforts to procure a miscarriage in 1914, usually by drugs.
The criminality of abortion was redoubled in 1929, when the Infant Life (Preservation) Act 1929 was passed. The Act criminalised the deliberate destruction of a Child "capable of being born alive". This was to close a lacuna in the law, Identified by Lord Darling, which allowed for infants to be killed during birth, which would mean that the perpetrator could neither be prosecuted for abortion or murder.[22] There was included in the Act the presumption that all children in utero over 28 weeks gestation were capable of being born alive. Children in utero below this gestation were dealt with by way of evidence presented to determine whether or not they were capable of being born alive. In 1987, the Court of Appeal refused to grant an inunction to stop an abortion, ruling that a fetus between 18 and 21 weeks was not capable of being born alive.[23][24] In May 2007, a woman from Levenshulme, Manchester who in early 2006 had an illegal late-term abortion at 7½ months was convicted of child destruction under the Infant Life (Preservation) Act 1929. The case is believed to be the first of its kind in Britain.[25][26][27]
In 1938, the decision in Rex v. Bourne[28] allowed for further considerations to be taken into account. This case related to an abortion performed on a girl who had been raped. It extended the defence to abortion to include "mental and physical wreck" (McNaghtan LJ)
The gynaecologist concerned, Aleck Bourne, later becomes a founder member of the anti-abortion group SPUC (Society for the Protection of Unborn Children) in 1966. The pro-choice group, the Abortion Law Reform Association, was formed in 1936.
In 1939 the Birkett Committee recommended a change to abortion laws but the intervention of World War II meant that all plans were shelved. Post-war, after decades of stasis certain high profile tragedies, including thalidomide, and social changes brought the issue of abortion back into the political arena.
The Abortion Act 1967 sought to clarify the law. Introduced by David Steel and subject to heated debate it allowed for legal abortion on a number of grounds, with the added protection of free provision through the National Health Service. The Act was passed on 27 October 1967 and came into effect on 27 April 1968.[29]
The Act provided a defence for Doctors performing an abortion on any of the following grounds:
Before the Human Fertillisation and Embryology Act 1990 amended the Act, the Infant Life Preservation Act 1929 acted as a buffer to the Abortion Act 1967. This meant that abortions could not be carried out if the child was "capable of being born alive". There was therefore no statutory limit put into the Abortion Act 1967, the limit being that which the courts decided as the time at which a child could be born alive. The C v S case in 1987 reconfirmed that at 19–22 weeks a foetus was not capable of being born alive.[23]
The Act required that the procedure must be certified by two doctors before being performed.
The Act was amended in 1990 by the Human Fertillisation and Embryology Act 1990. The effect was that the Infant Life Preservation Act was decoupled from the Abortion Act thus allowing abortion to full term for disability, life of the mother and health of the mother. Some Members of Parliament claimed not to have been aware of the vast change the decoupling of the Infant Life Preservation Act 1929 would have on the Abortion Act 1967, particularly in relation to the unborn disabled child.[30] There was a failed attempt to revisit the amendment and have it overturned.[31]
Changes to the Abortion Act 1967 were introduced in Parliament through the Human Fertilisation and Embryology Act 1990. The time limits were lowered from 28 weeks to 24 for most cases to reflect alleged improvements in medical technology justifying the lowering. Restrictions were removed for late abortions in cases of risk to life, fetal abnormality, or grave physical and mental injury to the woman.
Since 1967, members of Parliament have introduced a number of private member's bills to change the abortion law. Four resulted in substantive debate (1975, 1977, 1979 and 1987) but all failed. The Lane Committee investigated the workings of the Act in 1974 and declared its support.
In May 2008, MPs voted to retain the current legal limit of 24 weeks. Amendments proposing reductions to 22 weeks and 20 weeks were defeated by 304 to 233 votes and 332 to 190 votes respectively.[32]
Post 1967 there was a rapid increase in the annual number of legal abortions. The rate of increase fell from the early 1970s and actually dipped from 1991-95 before rising again. The age group with the highest number of abortions per 1000 is amongst those aged 20–24. 2006 statistics for England & Wales revealed that 48% of abortions occurred to women over the age of 25, 29% were aged 20–24; 21% aged under 20 and 2% under 16.[33]
In 2004, there were 185,415 abortions in England and Wales. 87% of abortions were performed at 12 weeks or less and 1.6% (or 2,914 abortions) occurred after 20 weeks. 82% of abortions were carried out by the National Health Service.[34]
The overwhelming majority of abortions (95% in 2004 for England and Wales) were certified under the statutory ground of risk of injury to the mental or physical health of the pregnant woman.[34]
Five years on to 2009, and the number of abortions has risen to 189,100. Of this number, 2,085 are as a result of doctors deciding that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
According to a 2004 The Times/Populus survey, Britons' feelings on abortion are:[35]
NB: The survey compares the results to respondents' voting habits for mainland parties, indicating the possibility that Northern Ireland was not included in this survey.
According to an August 2005 YouGov/Daily Telegraph survey, Britons' feelings toward abortion by gestational age are:[36]
A 2009 poll by MORI[37] surveyed women's attitudes to abortion. Asking if all women should have the right of access abortion
Asked whether the limit should extend to the period 20–24 weeks of gestation regardless of her circumstances
Methodology is time related - up to the ninth week medical abortion can be used (mifepristone was approved for use in Britain in 1991), from the seventh up to the fifteenth week suction or vacuum aspiration is most common (largely replacing the more damaging dilation and curettage technique), for the fifteenth to the eighteenth weeks surgical dilation and evacuation is most common.
In 2011, BPAS lost a High Court bid to force the Health Secretary to allow women undertaking early medical abortions in England, Scotland and Wales to administer the second dose of drug treatment at home.[38]
http://www.publications.parliament.uk/pa/ld201011/ldhansrd/text/100719w0001.htm
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