Why the ‘right to abortion’ doesn’t actually exist in Britain

Ripples from the US ruling on Roe v Wade can already be seen on this side of the pond, with campaigners pointing out that UK abortion laws are not as watertight as many assume them to be.

On June 24, the US Supreme Court voted to overturn the landmark case that had enshrined abortion as a consititutional right for Americans since 1973. Power to legislate against it has now been returned to individual US states; as a result, at least half of them are likely to restrict access to abortion or ban it entirely. 

In Britain we have reassured ourselves that things are different and there is no similar rollback of reproductive rights looming. Following the Supreme Court’s decision, protesters in the UK directed their ire at America not Westminster. Demonstrators gathered outside the US embassy in London with signs reading “Our bodies, our choice”. Glastonbury was punctuated by performances that railed against the ruling, while politicians have almost unanimously condemned a decision which Prime Minister Boris Johnson described as a “big step backwards.” 

Yet UK campaigners argue that a woman’s right to choose is far more fragile than it seems in modern Britain. Technically, abortion is still a criminal offence in England, Wales and Scotland. Most British women can access an abortion up to 24 weeks, although the vast majority take place far earlier (89 per cent of abortions were performed at under ten weeks gestation in 2021).

It may come as a surprise that abortion is technically illegal in a country where women can access it freely. Katherine O’Brien of the British Pregnancy Advisory Service (Bpas) explains: “Abortion remains illegal in England, Wales and Scotland under a piece of legislation passed in 1861 called the Offenses Against the Person Act. The 1967 abortion act did not decriminalise abortion, or repeal that legislation – what it did was provide a legal defence for women and doctors who have provide abortion as long as they meet the terms of the Act.” 

Two doctors must sign off on the procedure to say that continuing the pregnancy is potentially more harmful than terminating it, on the grounds of the physical or mental health of the mother, the child if it were born, or any existing children. 

“As it stands, abortion is still illegal under a law that was passed the same year the American Civil War started, long before women had the right to vote,” adds Dr Jonathan Lord, a consultant gynaecologist and spokesperson for the Royal College of Obstetrics and Gynaecology (RCOG). “What’s happened in America is chilling, as it shows even reproductive rights enshrined in the constitution can be taken away after 50 years.” 

Social attitudes to abortion in the UK have changed drastically over the last half a century; 91 per cent of people now support abortion where a woman’s health is endangered and 71 per cent of people support it if a woman doesn’t want to continue with a pregnancy, according to a 2021 survey conducted by Censuswide on behalf of Bpas. In the early Eighties, that figure was 37 per cent. In October 2019 abortion became lawful in Northern Ireland while in 2018, 66.4 per cent of people voted to overturn the ban in the Republic of Ireland. 

In America, around 60 per cent of people support abortion, although this varies hugely by political party – only 38 per cent of Republicans say abortion should be legal in all or most cases, compared with 80 per cent of Democrats, according to the Pew Research Centre.

Lord is clear that he does not expect any dissolution of our right to abortion in the wake of Roe v Wade, but wants to see the UK’s “anti-woman” laws fully repealed. “It will embolden the small minority that are vociferously anti-abortion,” he says. “Their tactic has always been to nibble at the edges; we will see attempts to further restrict access and more of a presence outside clinics, where the harassment and intimidation that goes on is unspeakably distressing.” 

Labour MP Stella Creasy is now campaigning to make access to abortion a human right protected by law, by tabling an amendment to the forthcoming Bill of Rights. 

“Most women in the UK do not realise abortion is not a right, but there is only a law giving exemption from prosecution in certain circumstances,” she said. “What the US teaches us is that we cannot be complacent about entrenching those rights in law.” 

Confusingly, abortion is fully decriminalised in Northern Ireland as the law prohibiting it was repealed in 2019 after a long-running campaign. But that hasn’t had an impact on access. Brandon Lewis, secretary of state for Northern Ireland, has accused health minister Robin Swann of delaying the commission of abortion services and making “excuses”. According to O’Brien, Northern Irish women are still having to travel to England for an abortion despite the reform.

Deputy Prime Minister Dominic Raab has said he rejects Creasy’s amendment – abortion is “settled” in UK law and to include it in the Bill could risk access to it being litigated. Yet some of our most prominent politicians have indicated that they would like to see changes. 

Conservative MP Jeremy Hunt has previously said that he would like to see the legal time limit on abortions reduced from 24 weeks to 12, a view that was branded “alarming” by other politicians, while Culture Secretary Nadine Dorries has argued that abortion should be restricted to 20 weeks. In 2017, Brexit Minister Jacob Rees-Mogg called it “morally indefensible”.

Meanwhile, there are some pronounced views arising from the backbenches. Conservative MP Danny Kruge sparked an outcry when he recently told the House of Commons that women do not have an “absolute right to bodily autonomy” when it comes to terminating a pregnancy and said we shouldn’t be “lecturing” the USA on the Supreme Court decision. 

“The argument that decriminalisation would mean more late stage abortions simply isn’t true,” says Lord. “What we need is for abortion to brought under the  same regulatory system as medicine… instead of an arcane law.” 

Creasy is not calling for “changing the existing term limits or conditions”, she says. “It’s about ensuring that women across the UK have the same human rights because at the moment, women in Northern Ireland have a right to abortion that’s written into law. Women in my constituency do not.” 

Reference: The Telegraph: Abigail Buchanan, Lilia Sebouai