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Revisiting UK Abortion Law after Dobbs v. Jackson

Developments in the US have spurred some politicians to become more outspoken as abortion laws come under the spotlight

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Following the overturning of Roe vs Wade in the US Supreme Court, greater attention has been paid to the current UK legislation on abortion. Just last week Nadine Dorries MP, Secretary of State for Digital, Culture, Media and Sport, ruffled feathers by advocating for the effective cut off for legal abortions to be at 20 weeks of pregnancy rather than the current 24 weeks. Meanwhile in Parliament Danny Kruger MP said "they [other MPs] think that women have an absolute right to bodily autonomy in this matter, whereas I think in the case of abortion that right is qualified by the fact that another body is involved”. Whichever side one takes on the debate, it’s important to familiarise oneself with what the actual UK law is on abortion.

Many would be surprised to hear that abortion is not technically legal in the UK. There is no wording in any of the legislation on the matter of women’s choice or what constitutes a life. Rather, the 1967 Abortion Act lists a series of exceptions where terminating a pregnancy is acceptable. The most relevant section is: 1(1)(a), where continuation of the pregnancy would result in physical or mental health injury to the pregnant woman or existing children, up to 24 weeks of pregnancy. Sub clause (b), (c), and (d) are exceptions for when pregnancy results in grave and permanent injury, including risk of death, or when the child may be born handicapped. What’s more, the pregnant woman needs the affirmation of two doctors to go ahead with the abortion.

According to common law, abortion is still illegal in the UK, and any woman who does not fall under the aforementioned categories and does not go through the correct medical channels to request an abortion will face prosecution under the Offences Against The Person Act 1861. This was the case for Sarah Catt in 2012 who bought her own abortion pills online and was sentenced to three and a half years in prison.

In practice, however, abortions are almost always allowed by medical practitioners until the 24th week of pregnancy per the first clause, with 98 per cent of requests going through and 98 per cent of all abortions using that clause as justification for a termination. Effectively, the overwhelming majority of abortions happen before the third trimester, and the overwhelming majority are hassle-free. The reason for clause (a) being primarily used is its vague nature, compared to the more serious criteria of “grave and permanent injury” of clause (b).

So what is the relevance of Dorries’ comments? Her proposal to decrease the cut off for abortion by 4 four weeks has happened before, namely with the introduction of the Human Fertilisation and Embryology Act 1990, which changed abortion exceptions from up to 28 weeks to 24 weeks, amending the 1967 Act to what we have now. This was done as scientific advancement during that time allowed the foetus to be viable outside of the womb at 24 weeks and later.

Dorries argues that since it is possible for a foetus to survive earlier than 24 weeks now, the cut off should be reduced. However, this is not entirely accurate as over 90 per cent of children do not survive more than two years if born at just 22 weeks. Advice from the NHS says that foetuses at 20 weeks are not at all viable, and those born prematurely suffer serious disabilities.

No doubt developments in America have emboldened some to be more outspoken on the UK’s abortion laws, such as remarks made by Dorries and Kruger, but some argue there is little appetite in the UK for a return to the past. Dorries reiterated her commitment to women’s choice and in fact wishes to abolish the requirement for two doctors to sign off for an abortion, a policy seen by some professionals as mere rubber stamping. Kruger later backtracked himself, saying "I do not wish to dictate what a woman should do with her own body”. If anything, his initial comments were an inflammatory yet technically correct assessment: the choice is not absolute, as restrictions remain on third trimester abortions, and most would say rightfully so.

If there is to be any change regarding abortion laws in the UK, it would be in the other direction. The 2017 Reproductive Health (Access to Terminations) Bill looked to decriminalise abortion all together, in the footsteps of most Western nations. The bill only fell because of an incoming general election and did not get past the second reading in Parliament.

This isn’t the first proposed amendment to the 1967 Act, and it won’t be the last. Although the law can be slow to change, it generally follows cultural shifts and could well change with the UK’s liberal views on abortion. The US is still deeply entrenched along Democrat and Republican lines, which throughout history has been a 50/50 split and still cannot agree on bodily autonomy or the right to life.

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