How abortion access could be under threat south of the Border

In reality, the latter is a possible outcome but the former is not, despite what news headlines about “decriminalisation” may suggest.

Two amendments to the Criminal Justice Bill have been tabled that may seem totally incompatible, but actually are not. Labour MP Diana Johnson seeks to remove the risk of prosecution for any woman who terminates her pregnancy, regardless of whether she does so after the current 24-week legal limit.

Conservative MP Caroline Ansell (below) seeks to have that legal limit lowered to 22 weeks, on the basis of medical advancements that have resulted in improved survival rates for premature babies.

If women ending their pregnancies are to be decriminalised, then in one strictly limited sense it will not matter whether the limit is 24 weeks or 22, as they will not face the threat of prosecution for their actions. But this “decriminalisation” would certainly not mean they could legally access abortion services at any stage, as anyone assisting a woman to obtain an abortion beyond the legal limit would remain liable to criminal prosecution.

Within the legal limit there would still be no right to “abortion on demand”, as the strict rules set out in the Abortion Act 1967 would still apply. Two doctors would need to provide their signatures, asserting that, in line with the law, “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.”

Johnson has said it is “in nobody’s best interests to threaten these women with outdated Victorian criminal laws that are now 161 years old,” and that her amendment is designed to “assert the fundamental principle that no woman should ever face going to jail for ending her pregnancy.”

A few years ago, this would have been a largely theoretical argument – one about principle rather than practicality. But since the pandemic, and changes to the rules governing telemedical abortion, it has become a pressing concern.

In early 2022 the then UK health secretary, Sajid Javid, announced that the “pills by post” system would be scrapped, but when MPs were given a free vote on the matter they opted to retain it.

In 2023, five women appeared in English courts charged with ending or attempting to end their own pregnancy in breach of abortion law – exceeding the total number of such cases that had been brought to courts in the previous 55 years.

One high-profile case involved a mother-of-three who ended a late-term pregnancy early in the pandemic after misleading the British Pregnancy Advisory Service about the stage of the pregnancy in order to obtain abortion pills. Her 28-month prison sentence sparked outrage, and was halved on appeal.

The case made for grim reading, with many people unable to comprehend why the woman would have risked her own life, and endured such trauma, rather than continue with the pregnancy. But few could explain what a prison term would achieve, other than temporarily depriving three children of their mother.

Other cases have included a 15-year-old girl who was investigated by the police for a year following a stillbirth at 28 weeks that was ultimately found to have natural causes.

Tory MP Miriam Cates (above) is among the MPs opposing Johnson’s amendment and backing Ansell’s call for a reduction in the abortion time limit. She argues incoherently that decriminalisation would mean “no consequences” for women who terminate after 24 weeks, but also that late-term abortion has “gruesome results” and that any woman who considers it “deserves enormous compassion and sympathy”.

Presumably she imagines the sympathy and compassion can, where required, be dispensed through the bars of a prison cell.

It would, at least in theory, be possible to decriminalise women who procure late abortions while also reducing the legal limit and effectively barring more of them from safe and legal access. Cates claims to be concerned that decriminalisation will fuel “DIY terminations”, but somehow seems to believe that cutting the legal limit would not have the same result.

Emotive arguments about the survival of much-wanted premature babies are used to argue that women seeking late-term terminations should instead be forced to remain pregnant and give birth.

A YouGov poll has suggested 55% of MPs back the decriminalisation of women procuring abortion, and in 2008 a proposal to cut the limit to 22 weeks was defeated by almost exactly the same proportion of them.

For now, the focus of reproductive rights campaigners in Scotland is on securing legislation for buffer zones around abortion clinics, with Green MSP Gillian Mackay’s bill currently being scrutinised at Holyrood, but expect MSPs to pay very close attention to this month’s Westminster debate.

There’s a real danger that the outcome will be one step forward, and two steps back.