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13 March 2017

If the United States can decriminalise abortion, so can we

Why MPs should repeal a 150-year-old criminal law in England and Wales.

By Diana Johnson

Early last year, in the heat of the US Republican  Presidential primaries, Donald Trump was asked whether he thought American women should be punished for having an abortion.

Since a historic Supreme Court judgement in 1973 (Roe v. Wade), American women have not been criminalised for having abortions. Many states in the US operate highly restrictive abortion policies to prevent access, but abortion itself is not a criminal act.

So when Trump answered by saying “there has to be some form of punishment”, his comments rightly caused a political firestorm. Even anti-abortion campaign groups and fellow Republicans rushed to join the chorus of people condemning his remarks.

In Britain, even the Daily Mail’s outspoken columnist Katie Hopkins disagreed with him. “I absolutely reject”, she said, “The views of those who think abortion should be illegal or someone should be prosecuted for helping a woman take control of her life.”

In a rare move, Trump was forced to backtrack.

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But it may surprise many of Trump’s British critics to discover that in England and Wales, abortion remains a criminal offence, with limited exceptions under the 1967 Abortion Act. Under a 150-year-old criminal law, women and doctors could be sentenced to life imprisonment – if, for example, a woman obtains pills bought online to procure a miscarriage. This is the harshest criminal penalty in Europe.

Under the Abortion Act 1967, as since amended, women can have access to an abortion up to 24 weeks’ gestation provided they obtain the signatures from two doctors who confirm that specified conditions as set out in the Act are met. There are much stricter conditions after 24 weeks. But this law does not fundamentally stop women from being criminals for having an abortion: it merely set out the circumstances in which they can avoid breaking the law.

As the US example illustrates, the debate around “decriminalisation” of abortion is more complex than many British critics claim. Some think it is synonymous with “deregulation”, and will lead to a free-for-all. In doing so, they unwittingly adopt a view that is to the right of many US Republicans who are anti-abortion.

Even in relatively more liberal countries, which have decriminalised, such as Canada and parts of Australia, the change did not lead to an increase in the late-term abortions some have claimed would happen. In fact the most robust academic evidence available found no evidence of an increase in late-term terminations.

That is why on Monday 13 March I am proposing a Ten-Minute Rule Bill on the decriminalisation of abortion in England and Wales. In proposing this, I want Parliament to have a long-overdue debate on whether our abortion laws should continue to be underpinned by a Victorian criminal law.

My bill does not propose to do away with any necessary safeguards. Like other countries which have decriminalised, I want abortion to continue to be subject to a wide body of regulation and robust professional standards which those who practice in the field would be required to adhere to.

There are already a range of laws which protect women from unscrupulous practitioners – from Acts prohibiting unlicensed doctors from operating, to legislation criminalising the selling of prescription-only drugs without a prescription.

The Bill does not intend to make it easier to access abortion after 24 weeks. Regulations can ensure that women are only able to obtain abortions beyond 24 weeks’ under the same circumstances as now, as set out in the Abortion Act 1967. Professional bodies like the General Medical Council will be required to enforce these rules. Abortions should, as now, only be carried out by licensed health professionals, underpinned by a robust code set by their professional bodies.

It is also not true to state, as some have, that decriminalisation would allow people to terminate pregnancies solely on the grounds of gender or legalise non-consensual abortions. As now, abortion would not be allowed on the grounds of gender and there are other laws which criminalise non-consensual abortions. Opponents argue that the only way we can restrict these practices is to apply the criminal law to everyone – a claim that needs only to be examined to be refuted.

This year marks the 50th anniversary of the passage of the Abortion Act 1967. It is right that Parliament takes this opportunity to look at decriminalising abortion, moving from a situation where abortion is inherently illegal with exceptions to one where it is inherently legal, but with exceptions and safeguards where necessary.

The evidence from other countries shows that none of the criticisms marshalled against decriminalisation stand up to scrutiny. This means that on 13th March, MPs should cast their votes by asking themselves one simple question: is abortion an inherently criminal act which should be punishable by life imprisonment?

If they feel that it isn’t, they should join me in calling for a change in the law.