As France enshrines abortion access in its constitution, the UK is facing a sharp rise in abortion convictions. A law dating from 1861 is being used to prosecute women in England and Wales, in at least one case leading to incarceration.
France has become the only country in the world to protect the right to terminate a pregnancy in its constitution after abortion access was officially added to the freedoms guaranteed in the French constitution on Monday. The move was a direct reaction to the rollback of abortion rights in the United States and elsewhere.
But across the English Channel, women are still at risk of prosecution for having the procedure because abortion in the UK has not been decriminalised. Britain is facing a sharp rise in abortion convictions, with a law dating from 1861 being used to prosecute women and in at least one case leading to incarceration.
Between 1967 and 2022, three women were convicted of having an illegal abortion in England and Wales. But in the last 18 months alone, six women have been prosecuted over suspected abortion offences.
Of the six prosecutions, three cases were dropped and two cases are awaiting trial, according to the British Pregnancy Advisory Service (BPAS). One woman was sent to prison.
Illegal abortion and life imprisonment
According to legislation passed 163 years ago, abortion is still a crime in England and Wales.
The Offences Against the Persons Act of 1861 states that it is illegal for a woman to procure her own abortion or provide the means for another woman to terminate a pregnancy.
What makes abortions accessible today is the Abortion Act, passed by parliament in 1967. The law allows doctors to perform abortions and allows women access to them, but only if they have authorisation from two registered medical practitioners and meet at least one of a specific set of circumstances: These include potential injury to the physical or mental health of the pregnant woman or any existing children in her family, any substantial risk to her life, and any serious physical or mental abnormality the unborn child could have.
A time limit of 24 weeks was added in 1990 but with exceptions, for example, if a woman faces the risk of death or “permanent damage” to her physical or mental health, or if there is a serious foetal abnormality.
But outside of these restrictions, women can still face a sentence of life imprisonment – one of the harshest penalties for having an illegal abortion in Europe.
Many countries in Europe will punish you for performing your own abortion or getting an abortion outside of the healthcare system, says Mara Clarke, co-founder of Supporting Abortions for Everyone (SAFE), a pan-European charity for providing access to abortion.
“But none of [the punishments] is life in prison.”
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Doctors in England, Wales and Scotland have the final say on whether or not a woman can access an abortion. They determine whether a risk to health is serious enough to call for terminating a pregnancy, whether an abortion is necessary to avoid “grave permanent injury” to a woman’s mental or physical health, and can even opt out of providing abortion care if they object for reasons of conscience.
A woman in England or Wales can even be prosecuted if they purchase abortion pills online without the authorisation of the two required doctors, or if they terminate their pregnancy beyond the 10-week limit for at-home medical abortions or the 24-week limit for abortions at a vetted healthcare facility.
Other health care professionals, including nurses, are not authorised to sign off on an abortion, with the necessary double approval restricted only to doctors. And there is “no consideration of the reasons why a woman might want to end a pregnancy”, according to a UK abortion rights campaign group run by healthcare professionals called Doctors for Choice.
"The law prevents nurses and midwives from having a full role in abortion care despite being more than capable of doing so," the group says on its website.
The Independent newspaper reported that Dr Jonathan Lord, the co-chair of the British Society of Abortion Care Providers, knows of at least 60 criminal inquiries into suspected illegal abortions in England and Wales since 2018.
‘An aberration’
“We really have better things to be doing with our time and money,” sighs Clarke from SAFE. “There are 60 investigations, yes, but out of how many abortions – 200,000?” She feels frustrated by the fact that public attention is turned to the prosecutions rather than the safe and guaranteed provision of abortion care for all.
“How many times did Carla Foster have to turn up in court before her case was overturned?” For Clarke, the answer is “too many”.
Carla Foster is a mother of three who ended her pregnancy outside the legal 24-week legal limit in the early weeks of the Covid-19 pandemic. She took mifepristone – a medical abortion pill – after the limit expired during lockdown.
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She received a 28-month custodial sentence in June 2023 and was sent to Foston Hall prison in Derbyshire, where she was incarcerated for 35 days.
Foster took her case to a court of appeal to reduce her sentence and won. A judge deemed the 46-year-old needed “compassion, not punishment” and reduced her punishment to a 14-month suspended sentence. She was released in July.
“UK public opinion is very liberal on abortion and is quite strongly pro-choice,” says Sally Sheldon, a professor at University of Bristol specialising in healthcare law. “It’s relatively easy for people with access to the NHS (National Health Service) to receive abortion care. In that context, these cases are really an aberration.”
Nevertheless, the legal remedies – when applied – are severe.
“Most of these women are having their laptops and phones taken away … There have been reports of women having their children taken into care because they were seen as a risk to their kids,” says Sheldon. “It impacts the whole family. The impact is enormous.”
Sheldon surmises that the sudden uptick in prosecutions could be connected to an increased awareness of abortion pills. “Since the pandemic … women can have an online consultation and have the pills sent to them,” she says. “I think that has led to a climate of much greater suspicion around unexplained later pregnancy loss or premature delivery. It seems like most cases are being reported by healthcare professionals … who report it to the police.”
Earlier this year, the Royal College of Obstetricians and Gynaecologists released new guidance for abortion care. Stating their “concern at the increasing number of police investigations following later gestation abortion and pregnancy loss, and the impact this can have on women”, it urged healthcare professionals to “abide by their professional responsibility to justify any disclosure of confidential patient information”.
Labour MP Diana Johnson this month is expected to introduce an amendment to the UK’s Criminal Justice Act that would end prosecutions of women for terminating pregnancies after the 24-week limit.
“If that amendment gets selected for debate, I would hope it’s got a good chance of being passed,” says Sheldon. “But it’s very difficult to know.”
