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Artillery Row

Sleepwalking towards abolishing abortion law

How can a crime be a crime if it implies no consequences?

Professional bodies are not known for discouraging people from reporting suspicions of crime to the police. And in the safeguarding era, it is still rarer that they would do so where the potential victims are children.

But that is where we find the Royal College of Obstetricians and Gynaecologists (RCOG). Earlier this month it and several other healthcare groups announced that new guidance would discourage health workers from reporting suspicions of illegal abortions to the police.

The RCOG pointed to rising numbers of police investigations around late gestation abortions and pregnancy losses. These numbers are low, with logged reports of suspected illegal abortions to police in England and Wales growing to 29 in 2022 from 16 in 2018, but the trend is still upwards.

The group’s statement reminded medical staff that if they can’t justify a decision to pass on information to the police, they risk “potential fitness to practice proceedings”. Keep schtum or face getting sacked appears to be the message.

The sharpened focus on abortion access in the UK partly reflects the trans-Atlantic delusions of many British politicians and activists. The overturning of the Roe vs Wade judgement in June 2022, which nullified the constitutional right to abortion in the US, had no implications for British law but was still seized on as a chance to make abortion more readily available here.

“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,” Labour MP Stella Creasy told Parliament at the time. She had previously spearheaded the introduction of a legal right to abortions in Northern Ireland, an innovation that some want extended into Great Britain.

Creasy is right that abortions are technically illegal in Great Britain. But the exemption mentioned is so wide that more than 200,000 legal abortions are carried out in England and Wales every year, equivalent to 18.6 abortions per 1,000 women, the highest rate since the Abortion Act was introduced in 1967.

And with a 24-week term limit in which abortions are essentially elective, Great Britain has among the most liberal abortion regimes in the world, even without a formal legal right. Much of Europe restricts abortions after the first trimester — a case study in how paper rights are less meaningful than what occurs in practice.

Further ballast for this argument can even be found in the Northern Irish rights that Creasy championed. Since the new regime was imposed by Westminster on a stalemated Stormont, Northern Irish politicians have been slow to commission the services that would make this notional right a reality.

That noted, it’s still hard to square the claim that abortion rights in Great Britain are not liberal enough. Practically the only evidence that abortions are restricted at all is in the rare police investigations and prosecutions, and health bodies like the RCOG want even these cases removed from criminal law and put under medical regulation.

Public interest was piqued by two recent court cases. Earlier in January, a prosecution against Bethany Cox was withdrawn just as it was reaching court, prosecutors citing “evidential difficulties”. Cox had been accused of illegally ending a pregnancy in July 2020, and it is embarrassing that prosecutors took so long to drop their flimsy case.

But the other notable case is not so suggestive of overzealous prosecutors. Last year Carla Foster was convicted after lying to the British Pregnancy Advisory Service to obtain pills for a home abortion, which she used to end a pregnancy that had lasted between 32 and 34 weeks, according to an autopsy of her child, Lily.

Foster’s prison sentence was reduced and suspended on appeal only several months later. On releasing Foster from custody, the judge Vitoria Sharp noted that Foster was “extremely distressed”, and that the case called for “compassion, not punishment”.

I can believe that Foster is unlikely to reoffend, partly justifying Sharp’s claim that there is “no useful purpose” in keeping her incarcerated. But the judgment also implies that in practice a woman in Great Britain can deliberately kill her unborn child in the final stages of pregnancy and face little more than an order to attend counselling.

In other circumstances, anybody who deliberately killed an unborn baby near full term — or indeed a newly-born child — would expect to be jailed for a long time, no matter how traumatising they found the experience or how regretful they were afterwards. Whatever the merits of the legal reasoning, the moral presumptions of the Sharp ruling are absurd.

Granted, it reflects the confused state of public opinion. A YouGov poll from September showed that while half of Britons say they support the 24-week term limit for abortions, with exemptions for risk to the mother’s life or severe disability for the baby, yet a similar proportion are also opposed to prosecuting a woman who breaks the rules.

Only 21 per cent of survey respondents back prosecutions for illegal abortions, which would include those done without a doctor’s consent or over the 24-week limit without a relevant exemption. The position of the median British voter appears to be that if a pregnant woman wants an abortion after 24 weeks then she should be allowed to improvise.

Even the current Conservative government has foresworn any stance on the matter

Given the strong norms around sexual and bodily autonomy, you can understand why many Britons lack the stomach to enforce the rules they claim to support. Even the current Conservative government has foresworn any stance on the matter.

In a parliamentary debate last July on abortion access, justice minister Edward Argar stuck to platitudes about “an extremely sensitive issue” and “strongly and sincerely held views”. This message was repeated last week: the government has no position on whether an unborn child has any right to life at any point during a pregnancy.

It’s that vacuum that is allowing medical associations, health workers and sympathetic judges to erode that right without a full public debate that forces politicians and the public to resolve our confusion about this most fundamental of questions.

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