Abortion remains at the forefront of public issues, making the headlines in recent labour leadership campaigns, when Rebecca Long-Bailey appeared to suggest that she disagreed with permitting female reproductive autonomy after the standard 24-week limit on the grounds of disability. Jess Phillips hit back, arguing, ‘abortion legislation in this country should be removed from criminal justice laws and placed firmly within the Department of Health’. These arguments give a flavour of the abortion debate and provide a timely invitation to reflect on the degree to which the Abortion Act facilitates female reproductive autonomy. By reproductive autonomy, we mean the right of a woman to make autonomous decisions about her body and decide when, or if, to have children. This essay will argue for the reform of abortion laws to reflect twenty-first century standards and practice, which ultimately demands the decriminalisation of abortion in order to facilitate female reproductive autonomy. Part one of this essay will review autonomy in the context of David Steel’s abortion Bill; it will then move on to review how constructions of women played into the Act. Finally, this essay will look at how the Act continues to fetter reproductive autonomy and what decriminalisation would look like.
It may be useful to contextualise current medical law to help understand how anachronistic the Abortion Act is. In recent years, patient autonomy has assumed central importance in British medical law. It now seems uncontroversial that a patients’ right to make their own decision about medical treatment is protected by law. However, restrictive laws mean this has been slow to translate into support for women’s choices concerning pregnancy. It seems problematic that this increasingly strong commitment to patient autonomy has little resonance in abortion law.
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Secondly, it is important to situate the legislation in its historical context to reiterate the act's aim. The Offences Against the Person Act 1861 (OAPA) is the offence under which a doctor or pregnant woman who unlawfully attempts to procure a miscarriage can be convicted. This law subordinates female reproductive autonomy by undermining women's ability to control decisions about their bodies.
Despite legislation making it a criminal offence for women to procure terminations and for medical professionals to perform them, abortions still happened, they were simply unsafe. Backstreet abortions were a feature of everyday life. As Diane Munday, a researcher at St Bart’s hospital at the time, reflects, 'hospitals would keep beds open after payday for women suffering complications from botched procedures'. This quote epitomises the unfair restriction of women's autonomy, showing illegal abortions, which carried risk of death, as more preferable than an unwanted child. Estimates of how many illegal abortions occurred in England and Wales before 1967 vary from 200,000 to 150,000 annually. The treatment of clandestine abortion accounted for one-fifth of gynaecological admissions within the NHS in this period. Maternal mortality from illegal abortion was acknowledged to be unacceptably high and abortion was seen as a persistent public health problem.
It follows that Parliament’s solution was the reform of abortion law by having doctors managing the problem, also protecting doctors from performing illegal backstreet abortions. However, this form of legal abortion was unashamedly couched in medical management, eclipsing questions of women’s rights, as its purpose did not lie with reproductive autonomy . In part, the medical framing of abortion emerged from the highly polarised pro-life vs. pro-choice debate, compromising that the 'rational' male doctor was most capable of deciding whether a woman needed an abortion in his professional opinion.
Literature in the 1960s responded to the pro-life debate and aimed to engage men, in particular, with the ethical arguments for abortion. For instance, Thomson’s seminal article was groundbreaking in terms of getting men to understand women’s experiences and the right to abortion. It was particularly instrumental as ‘the topic of abortion’ was one that ‘had been tainted by people’s assumptions about sex and sexuality, and by their dismissive characterisation of it as a “woman’s problem”. Putting the example in the second person, Thomson made the male reader adopt the perspective of a pregnant woman. Although the abortion debate has since shifted to focus on decriminalisaion, Thomson’s contribition was landmark at the time.
A crucial aspect of understanding the framing of the legislation in 60s Britain was the assumption of maternity as women's normative role. The Bill was explicitly discussed as a means to minimise the numbers of ‘unfit’ mothers and ‘unfit’ children, immediately subordinating any questions of women’s rights to patriarchal language. A common sentiment in arguing for legal abortion was “over-large families where the mother is so broken… it becomes quite impossible for her to fulfill her real function as a mother”. In framing abortion as a means to help women unable to cope with motherhood, the Government reinforces the notion that the Act’s purpose was not reproductive autonomy.
Instead, the roots of the Abortion Act lie in a series of stereotypes about the type of woman to have an abortion. Those fighting reform painted images of the desperate victim they wished to save, configuring women as ‘passive and in need of protection’. Women were portrayed as ‘physically inadequate’, completely out of control, who would be driven to madness if denied relief. Such oppressive language debases women mentally and physically. This focused the issue on 'saving' helpless victims, rather than facilitating women's choice to make decisions about their pregnancies, an unsatisfactory way to view reproductive autonomy.
M.P.s opposing abortion commonly invoked irresponsibility and recklessness as women's defining characteristics during the debate. For instance, Mahon purported a woman may abort 'according to her wishes or whims', while Jill Knight said '[a] mother might want an abortion so that a planned holiday is not postponed.' Such statements infantilise and dis-empower women, constructing them as frivolous and foolish in their decision-making. These attitudes are inextricably wound up with ideas of female sexuality, highlighted in notions of women recklessly 'getting themselves pregnant'. Rather than viewing women as autonomous agents actin their own interests, Parliamentary debates constructed pregnant women as unable to make 'wise' decisions about their pregnancies. Relying on constructions of women as reckless and irresponsible, Parliament attempted to justify the disenfranchisement of women, dismissing any rational arguments to the contrary. Thus, the task of the law is essentially one of responsibilising. It acts to curb women's recklessness, blaming women’s 'slutty' behaviour for their pregnancy. In doing this, the law ascribes to the notion that women are not capable of making their own choices, placing a firm barrier between women and reproductive autonomy.
Evidently, the law of the United Kingdom has developed towards a more legalised framework than absolute criminalisation. The Abortion Act 1967 offered some relief, providing an offence to the OAPA (until twenty-four weeks) when two doctors agree in good faith that: 1) there is a substantial risk of severe foetal abnormality, 2) the woman, or any existing family, are at grave risk of physical or mental injury, or 3) the woman’s life is in danger. The 1967 Act did not grant women the right to end an unwanted pregnancy. Instead, it gave doctors the power to decide whether there are grounds to support a woman’s request for abortion. However, in 2018, 97.7% of abortions were performed under ground C, 99.9% of which because of a risk to the woman’s mental health. This indicates a dischord between law and its liberal application, reaffriming the need to update the Act in line with modern day medical practise.
The problems with the 1967 Abortion Act are glaringly obvious.
Crucially, the Offences Against the Person Act was not repealed but legislated over. This means that despite the Abortion Act, abortion remains to this day a criminal offence. The 1967 Act only made restricted exemptions to the 1861 Act.
- The requirement for two doctors
Despite liberal interpretation and permissive practice, the Abortion Act (as amended by the Human Fertilisation & Embryology Act 1990) remains one of the most restrictive in the developed world. The requirement for two doctors means that a woman who wants an abortion is wholly dependent upon the exercise of medical discretion. While this captures the views that characterised the 1960s practise, it is a sharp contrast to today’s common law protection of patient autonomy. Again, it is problematic that this increasingly strong commitment to patient autonomy is not recognised in a female reproductive capacity. The very exercise of doctor’s examining women’s reasons for seeking abortion assumes a necessary lack of autonomy over the decision of whether to become a mother and that naturally the choice ’not to’ requires authoritatively sanctioned justification. Thereby, the legislation reflects utterly an anachronistic framework that subordinates female reproductive autonomy to patriarchal attitudes about gender norms, female sexuality, and fertility control.
- Only doctors perform abortions
While historically abortion procedure was more high-risk, medical developments such as the Early Medical Abortion (EMA) mean abortions are much safer. In view of this, it makes little sense to restrict abortions to the doctor’s office, and more sense to make EMAs more readily, commerically available, e.g. as an over-the-counter pill, thus returning choosing power to women. This restriction therefore seems redundant in terms of protecting women’s health and instead impinges on female autonomy as it restricts a women’s decision to reject a pregnancy.
A further problem with the act is that it assumes all women have equal autonomy. Women from ethnic minority groups or women who are poorly educated may not have the knowledge or confidence to seek a second opinion if their GP is obstructive. Furthermore, women from rural areas faced with an uncooperative doctor may not be able to access an alternative medical practitioner. The Abortion Act then operates to entrench deference to medical opinion with disproportionate practical impact on the choices of disadvantaged women. Access to abortions disproportionally favours women with more social capital, further reducing the autonomy of lower class and non-white women. This supports Fineman’s notion that all our choices are made within the constraints of society . Hence, the criminal law framework as it stands confines female reproductive autonomy into a legal vacuum, shaped primarily by men with no experience of abortion.
Reinforcement of women’s role
A final problem with the Act is that its implicit reliance on assumptions of motherhood as women’s most appropriate social role facilitates the continued oppression of women. Though many women happily engage in motherhood, the institutional exploitation of this act as a justification for excluding women from reproductive discourses is oppressive. Having the freedom to decide whether to bear and nurture children is not merely important for ‘women gaining control of their reproductive lives, an essential prerequisite to women freeing themselves from male dominance’, but ultimately for gaining an identity independent of reproduction. Notions of reproductive autonomy and bodily integrity are not merely significant for affording women the ‘right to choose’, but rather what that choice affords them: equal opportunity to craft their sense of identity, to pursue their talents, and fostering their own sense of a 'good' life. More than fifty years on change has stagnated. Patriarchy has not been displaced. It is time for a law that recognises women’s unencumbered ‘right to choose’ whether to be a mother.
Thus, in an important sense, the battle for reproductive autonomy was hindered in 1967 rather than helped. The Act explicitly avoided granting substantive rights to women, and instead was rooted in a paternalistic attitudes. Through critical analysis we might become more aware of the role law plays in facilitating the continued denial of women’s reproductive autonomy.
In 2008 we came close to liberalising the Abortion Act, when reforming MPs proposed a number of amendments to modernise abortion under the Human Fertilisation and Embryology Act 2008. The amendments saw the removal of medial approval for all but late terminations, permitting nurses and other health care providers to carry out abortions, the extension of the range of locations where abortions can take place, and the choice to complete EMA’s at home. However, the government torpedoed any debate of liberalising reform, instead choosing to table a programme motion rather than allowing a vote. In blocking any chance for the amendment to be discussed, the government revealed scant concern for the right of a democratically elected Parliament to debate a matter of importance and significant controversy. The result is the retention of legislation grounded in tired stereotypes of frivolous women unable to make important decisions in a serious or reflective way. The refusal of successive governments to update any law regarding abortion leaves intact the archaic legal framework that suffers from many of the problems that provided for the compelling reform of the OAPA.
It is time we re-framed what modern abortion law should look like. It is time the law reflects contemporary social values and accepts female reproductive autonomy, ending the hypocrisy that pretends abortion is rare. The Abortion Act does not belong in the realm of criminal law. An abortion is a medical procedure. Decriminalising abortion would require a process of parliamentary reform to remove specific criminal penalties such as the destruction of foetal life as an independent justification for criminal sanction under the OAPA and ILPA. However, in doing this it would be necessary to consider cases of men assaulting pregnant women in order to invoke miscarriages. It is recommended that such actions should be chargeable under amendments to general offences relating to actual and grievous bodily harm to ensure the extent of harm caused by the loss of a wanted pregnancy is fully recognised in law. This proposed method of decriminalisation would not only withdraw punitive measures imposed on women, it may also contribute to a society where abortion is destigmatised. It is likely to help erode stereotypes of women as incapable of decision-making by legally framing pregnant women as the ‘active' social agent. Undoubtedly, this would represent an important move to recognise women’s rights of self-determination or autonomy.
It follows from this that the law should be amended to allow competent adults, and young people, to consent to abortion on the basis of informed consent as with other medical care. There is no logical reason to retain the two doctors’ signatures required by the Abortion Act, instead accurate, appropriate and timely non-directive information from healthcare professionals would enable each individual to fully explore their options and choose freely. Above all, the law does not need a reason for the authorisation of an abortion. It should provide a framework in which abortion can be obtained safely, free of judgement, and characterised by choice. The concept that women should be allowed to decide for themselves, on the basis of informed consent, would facilitate female reproductive autonomy in a healthcare environment respectful of self-determination. While there is not enough room to go into it here, it would be recommendable to keep a statutory public register of conscientious objectors, enabling women to avoid approaching an objecting doctor and risking delay or bias.
If women receive reproductive autonomy there is no reason so suggest that it should not be absolute. The current separation between grounds A and D is unsatisfactory and should be collapsed if the focus is autonomy. Women are currently permitted to exercise their choice after 24 weeks if the foetus is seriously handicapped, yet this in itself is entirely problematic, as it relies on the subjective exercise of medical discretion to determine what constitutes ‘seriously handicapped’. Moreover, if, as many academics argue, female reproductive autonomy is paramount, then why should ‘the right to choose’ be fettered at 24 weeks? One could argue that, without restrictions imposed upon autonomy, women might choose to abort later for personal reasons other than disability. If the goal is to facilitate reproductive preferences, it seems contradictory that a women’s choice stops being respected at what appears to be an arbitrary number with no intrinsic value. In Australia and Iceland it is twenty-two weeks, in France, the Ukraine, Belarus, Spain and Germany fourteen, in Hungary twelve and in Portugal ten. It is oppressive to confine autonomy to a number chosen mostly by white men who confuse abortions with ‘holidays’. This is reinforced by statistics that prove women will abort as soon as possible, grounding the argument that if a woman chooses to abort after twenty-four weeks, her choice should be respected.
Although this argument is logically supportable, it may be pragmatically difficult to get such legislation through. It should be recognised that later abortions raise more ethical concerns, and the retention of criminal law provisions would likely command more popular support in this area.
Finally, there is no reason to retain the legal requirement for the EMA’s first dose of misoprostol to be carried out in a hospital or approved location, as it would limit national capacity to provide early abortions. Instead, the law should model Norway’s legal framework and allow both doses of misoprostol to be self-administered at home. This would help to subvert women’s oppression by enabling the prompt and safe expulsion of the pregnancy in an environment of their choosing, rather than inflicting undignified onsets of bleeding on journeys home from clinics.
In conclusion, it is time law in the United Kingdom decriminalised abortion and handed women back their autonomy over their pregnancy. This could be done by modelling the law in Victoria [Australia], moving abortion from criminal law into GMC guidelines, facilitating reproductive autonomy by providing safe, accessible abortions. Though we discussed some potential issues that may arise from decriminalising aboriton to term, such as the need to legislate in the instance assault-induced miscarriages and acute moral concerns with later terminations, there is no reason to suggest such problems should stand in the way of female reproductive autonomy. Until we see absoloute criminalisation, the most successful short-term strategy may be challenging the construct of the legal subject: the woman. As Carol Smart says, 'law hears what we have to say about women”. This suggests the law is not going to change until social constructions of women change. Therefore, perhaps the reform of abortion law calls for wider, sociopolitical intervention in order to challenge the base perceptions of women.
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