The Case Against ‘Decriminalising’ Abortion

by Peter D. Williams

This evening, the House of Commons will consider one of two amendments that aim to ‘decriminalise’ abortion in English Law – that is, remove criminal penalties for illegal abortions in England and Wales. The first, ‘New Clause 1’ (NC1), would do so selectively, disapplying current criminal penalties for illegal abortions from women who choose to self-abort; the second, ‘New Clause 20’ (NC20), would remove criminal penalties for illegal abortion from the law entirely, voiding all legal abortion restrictions whatsoever.

Both proposals – not just NC20 – are extreme, unjust, and inhumane in their consequences. In order to understand the full enormity of these proposals, it’s necessary to understand a basic amount of the history and nature of abortion law in the United Kingdom.

A Brief History of Abortion Law

Abortion law in the UK has evolved particularly over the last almost-225 years. Prior to the nineteenth century, abortion was a ‘Common Law’ crime, which means that criminal penalties were imposed by Courts according to legal custom. Penalties for abortion varied in severity according to when in pregnancy the abortion took place, as a prevailing medical view derived from ancient Greek physics was that an unborn child only began to be a living human being after ‘quickening’ (when a pregnant mother could feel her baby move for the first time in the second trimester of pregnancy).

At the start of the nineteenth century however, Parliament passed the Malicious Shooting or Stabbing Act 1803, a law proposed by the then Lord Chief Justice of England and Wales, Baron Ellenborough (hence it was popularly called, ‘Lord Ellenborough’s Act’), which aimed to clarify a group of offences which were then poorly defined, making prosecution more difficult. This included attempts to kill or cause grievous bodily harm with firearms or sharp implements, arson, fraud and abortion. Specifically, the death penalty was applied for those who attempted to cause a miscarriage prior to quickening, and other penalties for those who applied them when quickening was not in evidence.

This was soon repealed and replaced, however, by two parallel developments: the desire by Parliamentarians and jurists to simplify the criminal law, and the advent of embryological science.

Shortly after Lord Ellenborough’s Act was passed, Parliament became concerned with rationalising the morass of statutes that it had passed since the medieval era, which had become large, unclear, and consequently difficult to practically know and operate. By the 1820s, Sir Robert Peel as Home Secretary passed several Acts to achieve this by consolidating and updating existing legislation, including the Offences Against The Person Act 1828, which clarified criminal law as it related to crimes of violence and disorder of which one was causing a woman to miscarry (abortion). This Act came two years after the ovum (egg) was discovered (the sperm went undiscovered until 1865), but it was not until the Offences Against The Person Act 1837 – passed to reduce the number of crimes punished by the death penalty – less than a decade later that scientific knowledge had advanced sufficiently that the outdated reference to ‘quickening’ in relation to abortion was removed from the law.

The Offences Against The Person Act 1861 further clarified and updated criminal law on violent crimes, and this forms part of the key legislation dealing with this area in English Law to this day. As relates to abortion, what is summarised as ‘unlawful procurement of miscarriage’ whether by the woman herself or by anyone else is a crime at any stage of pregnancy (section 58), as is procuring drugs or instruments for that purpose (section 59) and hiding the body of a baby who has been aborted (section 60).

Further to this, just over sixty years later the Infant Life (Preservation) Act 1929 was passed to close a lacuna (gap) in the law. The 1861 Act banned procuring a miscarriage, which is by definition pre partum (before birth), and the crime of infanticide was defined post partum (after birth), which left the time in partum (during birth) or shortly afterwards before the child was entirely physically separate from her mother as a period in which a baby could potentially be killed without any legal sanction (you can read the initial Parliamentary debate on that question, here). This Act created the crime of ‘Child Destruction’, which criminalised ‘any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother’. That a baby was past 28 weeks gestation is taken to be prima facie evidence that a baby was capable of being born alive (a standard which has clearly been overtaken by medical science) and so whilst this Act did not relate directly to abortion, it became relevant to it.

It was in this context that the Abortion Act 1967 was passed. Whilst many people consider that the Abortion Act ‘legalised’ abortion, what it actually did was provide grounds under which a doctor – and only a doctor – could perform an abortion without being prosecuted for ‘unlawful procurement of miscarriage’. The Act did not initially provide exemptions from prosecution for ‘child destruction’, and this left an ‘upper limit’ of 28 weeks for all forms of abortion allowed by the Act.

Parliament passed the final piece of the architecture of abortion legislation, when after thirty years of debate as to the state of abortion, section 37 of the Human Fertilisation and Embryology Act 1990 was passed. This amended the Abortion Act to do two things: 1) extend the exemptions for prosecution to ‘child destruction’, and 2) establish an explicit formal ‘upper limit’ of 24 weeks for section 1(1)(a) of the Act which allows for abortions on ‘mental health’ grounds under which the vast majority of the just over 250,000 abortions that take place every year are justified according to the Act.

The Operation of Abortion Law in England and Wales

The reason for my writing that potted history of abortion law in English Law – the situations in Scotland and Northern Ireland are different, and we will leave consideration of those jurisdictions for now – is that it is crucial for understanding how the law works, and therefore what the two alternative proposals of ‘decriminalisation’ would entail.

Abortion law in England and Wales operates according to exemptions from prosecution for the two crimes of ‘unlawful procurement of miscarriage’ and ‘child destruction’. That is, abortion is illegal, unless it takes place under the auspices of the Abortion Act 1967. Whilst we have a situation of de facto abortion on demand[*], which has led to additional evils like sex-selective abortion becoming evident, there have been key limitations in terms of how abortions take place: only doctors have been able to perform abortions legally, and only after meeting the woman in prescribed places and according to regulated circumstances. This has provided some degree of imperfect protection for women from being coerced into abortions, and have limited the potential for late term abortions from taking place. There is plenty of callous cruelty in current abortion practice, but there is at least the tacit acceptance within the framing of the law that abortion is an evil (even if it is falsely thought of as a ‘necessary’ one).

Meanwhile, the crime of ‘child destruction’ has allowed for the prosecution of men who have attacked pregnant women and girls and caused them to miscarry – see the horrific cases of Kevin Wilson, Tony McLernon and Carl Whant – adding an extra layer of justice for the loss of her unborn child.

The Meaning of ‘Decriminalisation’

Only if we know and note all of the above can we properly evaluate the proposals for abortion ‘decriminalisation’ (for the text of which, see the Amendment Paper here, pp. 108–112).

Starting with NC20, the amendment proposed by Stella Creasy MP (Lab; Walthamstow), her amendment would remove abortion from the criminal law altogether, by repealing the two crimes of ‘unlawful procurement of miscarriage’ and ‘child destruction’. Such an action would effectively void abortion law altogether, and legalise abortion on demand, for any reason, up to birth.

As we have seen, the Abortion Act provides a set of exemptions from prosecution for the two crimes under which abortion is normatively illegal, and it is through this that the restrictions within the Act take place, as outside the Act’s provisions, someone can be prosecuted for illegal abortion. To repeal the two underlying crimes would not merely stop ‘criminalising women’, it would void all abortion restrictions altogether. The Abortion Act 1967 would become a dead letter, and abortion practice would have no legal limit or restriction whatsoever, making the UK join a club including China and North Korea (and Canada). By repealing the crime of ‘child destruction’, it would also remove the ability of the courts to punish men who viciously attack pregnant women for the added offence of causing the death of an unborn child.

This amendment has less support in the Commons, and is likely a stalking horse for the real amendment that the Speaker is likely to choose for a vote and which the abortion lobby would like to see passed in the short term: NC1, proposed by Tonia Antoniazzi MP (Lab; Gower). This much more simply dis-applies the two crimes of illegal abortion from situations where women engage in self-abortions. This would mean that any woman would be able to procure abortifacient drugs and self-abort their babies at any point in pregnancy, again including right up to birth.

Like Creasy’s amendment, this is obviously revolting in its consequences, removing any protection for unborn children at any stage in pregnancy. Quite rightly and understandably, it flies in the face of ordinary moral intuitions, with only 1% of people according to the most detailed recent polling I am aware of, with 50% wanting a reduction in the ‘upper limit’ from 24 to 16 weeks, and 60% wanting a reduction to 20 weeks. Both the Antoniazzi and Creasy amendments would take us in the wrong direction.

Further, quite a few people have pointed out that the evil effect of this amendment would be to open women up to coercive abortions and dangers to their health through back alley abortions with strong chemicals thanks to ‘telemedicine’ abortions, by removing penalties for not going through the route of medical supervision.

The ‘pills-by-post’ scheme, created so that women would be able to have ‘home abortions’, which it was argued was necessitated due to the then-impossibility or great difficulty of seeing a doctor in person due to COVID-era lockdowns, is an important context to this, as its operation and continuation beyond the end of coronavirus restrictions has allowed dangerous abortifacient drugs to become more readily available and more easily abusable. As former MP Miriam Cates, and current MP Carla Lockhart have both pointed out, this is what has led to a reported tiny upsurge in investigations for illegal abortions, very arguably cynically orchestrated by the abortion lobby itself in its support for this de facto permissive chemical abortion practice.

‘Criminalising Women’?

Beyond the in-principle iniquities and practical dangers of ‘decriminalisation’ however, it is worth going further to consider the reality of justice in this area. Before the rise of telemedicine abortions in the last five years, a very small number of women who had engaged in appalling late term self-abortions through illicitly gaining and using drugs had been prosecuted for the crimes of ‘unlawful procurement of miscarriage’ and ‘child destruction’, and when we see the details of these crimes we can see that they were not draconian, paternalist or misogynist, but wholly just.

In 2018, I wrote an article for The Federalist in the wake of an American debate about whether to criminalise women who self-abort, in which I pointed out the following:

‘In 2012, a 35-year-old mother of two, Sarah Catt, was tried under section 58 [of the Offences Against The Person Act 1861] for causing herself to have a miscarriage at 39 weeks, due to her belief that the father was a co-worker with whom she was having an affair. This was discovered through her failure to register the birth of her child after a hospital scan confirmed her pregnancy a few weeks earlier.

Online, she bought prostaglandins to use as abortifacients, and she gave birth to a stillborn son, whose body she buried. The judge at Catt’s trial said she ‘had robbed the baby of the life it was about to have.’ Both he and the inspector dealing with her case noted that she had ‘shown no remorse’.

Three years later, a 24-year-old woman called Natalie Towers was also prosecuted under section 58 for an illegal abortion. Like Catt, she had procured heavy prostaglandins online. Ingesting them caused her to experience severe contractions. This led to her son suffocating to death before she gave birth to him in the toilet. Towers was at 32–34 weeks gestation when this took place; for context, the ‘upper limit’ for most abortions in the UK is 24 weeks.

Trying to fake a natural miscarriage, Towers called emergency services, who attempted to revive the baby boy they posthumously named ‘Luke’. When the cause of death was found to be oxygen starvation, Towers confessed to the police what she had done. Later investigation into her web history and research on how to delete it demonstrated her malice aforethought.

While asserting that the case had ‘nothing to do with the general immorality or otherwise of the termination of unborn foetuses’, the judge at her trial considered her actions so serious that he directly sentenced her to two-and-a-half-years in prison.

One more case, but this time with a different outcome. In 2016, an unnamed 21-year-old Northern Irish girl was given a suspended sentence after she had procured abortifacients and miscarried her baby at 10–12 weeks. She was only found out when her two female housemates, one of whom had recently naturally miscarried, discovered the discarded body of the baby in a towel thrown in the bin.

One of the women recounted, ‘He had fingers, little toes. Even now I just have a picture in my mind of it. Its wee foot was perfect. Even now I feel sick… I didn’t want to throw a baby away. I didn’t know what to do’. The other said, ‘You would never want to see it in your life. It was a full wee proper baby… About a week went by, the guilt of a baby in the bin was eating us up’. After being so understandably traumatised, they called the police.

The clear callousness of the mother notwithstanding, she was spared prison because by the end of her trial she had given birth again, and the judge discerned that her new child needed her. He recognised the wickedness of what she had done by finding her guilty, but exercised prudence in letting her go free.’

I argued in that piece, and would continue to argue, that when the details of the cases involved are known, we see that when our justice system prosecutes women for illegal abortions, it is for very good and prudent reasons, and that the same system has the ability (as in the Northern Irish case) to show prudent compassion also.

By contrast, abortion advocates decry cases of ‘criminalising women’ for abortion, with the line that such women should be ‘given help, rather than put into prison’ often repeated. This exploits the natural and right compassion we have towards women who find themselves in unplanned or ‘crisis’ pregnancies, but ignores the reality of the acts that have been prosecuted. The answer back is to ask two questions: 1) What ‘help’ could we have given to Sarah Catt that would have prevented her engaging in killing her child at 39 weeks? 2) Especially given the callous nature of her actions, why should she and women like her not be held accountable for their actions?

The irony of those who oppose criminal penalties being applied to women who illegally self-abort from a position of supposed compassion is that it is condescending. Whilst many such people would self-define as feminists, they seem to think that women uniquely cannot or should not be treated as morally autonomous adults who make bad, even wicked decisions. Those of us who treat women with genuine dignity and equal respect think that they should, including when they engage in the kind of clearly appalling crimes outlined above.

False Compassion, No Justice

Given the reality of the architecture of English Law as relates to abortion, the effects of the two amendments proposed to Parliament would be antithetical to human dignity, removing important protections for pregnant mothers and their unborn children. Further, they would to varying degrees remove the ability of the law to provide appropriate justice.

Although the Antoniazzi amendment is likely in my view to pass into law due to the preponderance of pro-abortion opinion currently in the Commons, the principled argument against it is clear, and reflects the views of the British public. Those of us who are on the side of the solidarity and duties of the family, against the cult of autonomy that supports permissive and legal abortion, should be willing to make the case for a reform that steadily diminishes the inhumanity and cruelty of liberal proposals on abortion in the future, and have the fortitude to move towards a more authentically compassionate and just society.

===

[*] A point I made in my recent paper on how assisted suicide harms the family, in which I pointed out why a ‘two doctor’ model cannot prevent abuses – see pp. 13–14.