Picture credit: Hesther Ng/SOPA Images/LightRocket via Getty Images
Artillery Row

Labour are playing with fire on abortion

There is no case for decriminalising late-term abortion

Given the excitement in Westminster this week over the announcement of the General Election, you’d be forgiven for missing that Dame Diana Johnson MP, Chair of the Home Affairs Select Committee, is seeking to decriminalise abortion. Decriminalisation has been a long-standing aim of Dame Diana and was due to be tabled as an amendment to the now abandoned Criminal Justice Bill on the 4th of June. 

As Parliament will be dissolved next week, you may wonder why this is a topic worthy of discussion at all. Except that it looks set to be brought back under a Labour Government, should they be elected. 

If you had assumed abortion is a “settled” political matter, and one which is largely seen as a successful example of a liberal consensus, you might wonder why the boat is set to be rocked. Abortion is only legal in Britain in a specific set of circumstances: approval must be granted by two doctors and conducted under the time limit of 24 weeks. Abortions undertaken after the 24-week time limit are subject to criminal prosecution, unless the life of the mother is at risk, or the child has certain disabilities. It isn’t a status quo with which everyone agrees, but it is largely supported by the British public. 

But in the last few years that settled consensus has been challenged, as investigations, arrests and even imprisonment for late term abortions have risen in the UK; most notably in 2023, when Carla Foster was sentenced to a term of 28 months, with 14 to be served in prison, for taking abortion drugs after the legal term limit at around 32-34 weeks gestation. Foster’s sentence was later reduced to a suspension following an appeal, and she was released. 

In February the BBC reported that “abortion provider MSI says it knows of up to 60 criminal inquiries in England and Wales since 2018, compared with almost zero before.” Now, these stories are undoubtedly concerning, riven as they are with the risk that women who have tragically experienced miscarriages and stillbirths may be being investigated over the deaths of their babies. But something critical was pointed out in the opening paragraphs of the story, but then not returned to by the reporters. Before 2018 there were almost zero such investigations. Between 2002 and 2022, just three women were prosecuted for illegally procuring abortions outside the time limit. 

And that is because, before 2020, abortions had to take place in registered clinics, in person. Either by taking pills in the presence of a nurse to induce an abortion, or through surgical means. In person appointments meant nurses could better assess the gestation period and length of the pregnancy, meaning instances of abortions taking place after the term limit virtually never arose. But during the Covid-19 pandemic, this changed. The advent of abortion pills a few years earlier had been hailed as a success by some abortion providers and campaigners, and the Government decided to allow these pills to be taken by women at home for the duration of the pandemic.

After the lockdowns had ended, a push was made in parliament, championed in large part by Dame Diana Johnson MP, Stella Creasy MP, Jess Phillips MP and others, to allow the use of telemedicine or “abortion pills by post” to continue for pregnancies up to 10 weeks gestation. Seemingly with limited recognition of the risk that some women could be pressured by abusive or coercively controlling partners to take the drugs at home against their will, even late in to their pregnancies, or that some women would choose, for whatever reason, to end their pregnancies weeks, or even months, past the legal time limit, and the ramifications this could have for the general consensus that abortion is a “settled political issue”; to say nothing of the lack of consideration shown to the child. 

Abortion is widely supported in the UK, with a YouGov poll in 2023 showing 87 per cent of Britons saying they believe it should be available; I include myself in this number. But the position changes when you start looking at the time limit and pills by post: 39 per cent of women over 40 believe the 24-week time limit is too late, and on the question of abortion pills by post, 48 per cent of women over the age of 40 when questioned in 2023 said that they thought we should go back to ensuring abortion pills are taken under medical supervision at a clinic. 

Now, despite the surge in cases of women being investigated for late term abortions, rather than reflecting on the problems being caused by abortion pills by post, some MPs are instead going ahead with a plan to decriminalise abortion; effectively meaning that an abortion undertaken at full gestation would be permissible. Speaking at a fringe at the Labour Party Conference last year, Dame Diana said in her view abortion should still be regulated, while also being decriminalised. Yet if there is no criminal sanction for ending a pregnancy past the legal time limit (which her former amendment looked unlikely to suggest) then what is there to discourage women from ending their pregnancies at four, five, six months (or even later)? And as a society, are we comfortable with this increasing? How does a plan to effectively legalise abortion up to birth sit with the need on this issue to balance the rights of the woman with the rights of the child? Many would argue that the settled position on abortion, which is generally regarded as a moderate fudge while being the best compromise which can be wrought of a very difficult situation, is being pulled in an extreme direction. There is no evidence that the British people support abortion at full term; we can only wonder how the public will react when they realise this is now legal, should the amendment succeed. 

Supporters of decriminalisation argue that a woman who undergoes a late term abortion has already suffered enough; a feminist position that many will have sympathy with. But they don’t seem to recognise that by decriminalising, the Government may no longer have any way to assess how many pregnancies are being ended at a late term; thereby disguising a growing problem caused by abortion pills by post, to say nothing of the backlash which may develop amongst the public when this comes to be known, thus risking the successfully balanced nature of the abortion debate, which has for so long managed to avoid falling to the culture wars, or coming anywhere near close to the polarising situation we see in the US. 

Earlier this month the BBC reported on the case of a couple who are currently being tried for procuring poison, procuring a miscarriage by poison and attempting to pervert the course of public justice. The couple had apparently bought abortion pills over the internet, after being refused an abortion by a provider when the woman was found to be nearly 29 weeks pregnant. The baby was delivered stillborn in August 2018, wrapped in a towel and placed in a bin. Under the plans being pushed by Dame Diana, there would be no recourse in the law for such a situation to be dealt with, nor would there apparently be a mechanism by which any arm of the state could gauge the extent to which this is happening.

Critics of the current law on abortion state that the element they wish to expunge was written in 1861, and therefore is worthy of updating. But the same Offences Against the Person Act of 1861 contains the law which created the offence of Actual Bodily Harm, and we don’t hear calls to revoke the law on ABH simply because it is over 160 years old. Nor do we see any reflection amongst the politicians pushing this on the laws surrounding child destruction. Child destruction as an offence was created in 1929. How does the existence of such a law, which I support, sit with an attempt to effectively legalise abortion up to birth? The inconsistency of approach to public policy by the MPs pushing this does not fill one with confidence that this is being well thought through. 

Abortion is a conscience issue, but one which, like euthanasia, requires deep public consultation, awareness and discussion

We have seen before just what happens when a small, unrepresentative band of activist MPs push ahead with plans and laws change that the majority of the public find to be unacceptable, and even extreme. Decriminalisation of abortion was included in the last Labour manifesto; a manifesto which was resoundingly rejected by the public. Abortion is a conscience issue, but one which, like euthanasia, requires deep public consultation, awareness and discussion; not a wholesale change to the law pushed by MPs who know full well the majority of the public are unaware it is happening. And in a manner similar to the push by Stonewall to circumvent the law without public knowledge, in January 2024 the Royal College of Obstetricians and Gynaecologists published the first guidance of the kind to medics on reporting suspected late term abortions, saying “a healthcare worker must ‘justify’ any disclosure of patient data or ‘face potential fitness to practice proceedings’.” A threat of effective blackmail to medics from a Royal College is deeply troubling, and yet I can find no indication that, again, anyone is aware this is happening. 

Earlier this year, the Government announced the advent of baby loss certificates, to recognise the grief parents feel after experiencing miscarriage and baby loss before 24 weeks, and to enable them to formally commemorate their child; a move which was widely welcomed. And yet on the other hand, some MPs are seemingly comfortable with a growing number of pregnancies being deliberately ended at a late stage in gestation. This is a contradictory principle in public policy, and no matter how sensitive the issue, this contradiction, and its cause, needs to be acknowledged. 

There is a very real consequence to the continuation of abortion pills by post, and there may be a huge political fall-out from decriminalising abortion which ultimately endangers women’s choice; far from recognising this, some MPs look set to make a problem of their own making far worse. And when the British public catch on, who knows how severe the reaction in the other direction might be.

Enjoying The Critic online? It's even better in print

Try five issues of Britain’s newest magazine for £10

Critic magazine cover