Tackling abortion stigma though legal reform

Recently, the Crime and Policing Bill received Royal Assent meaning that women and pregnant people have been removed from the criminal law related to abortion in England and Wales. In this guest blog, friend of Abortion Talk Charlotte Kelly tells us about abortion forming part of criminal law perpetuates stigma. She also reflects on a recent meeting of those working, campaigning or studying in the abortion sector to explore abortion law

reform.

When I first became involved in reproductive rights, I confess I saw abortion stigma predominantly as a social issue that did not greatly affect the lives of my friends and me. Yes, it was taboo amongst my grandparents, but they were another generation. I treated abortion stigma as an issue confined to certain conservative faith groups, or else abroad in countries where the law either prohibited or severely restricted access to abortion. As a law student, I should have known better, but as those of my friends who had had early medical abortions described it as a relatively straightforward medical procedure, the exact letter of the law seemed less important. 

Surely this can’t be right- women prosecuted for having abortions?

Then came the 2012 case of a woman prosecuted and imprisoned under the Offence Against the Person Act 1861 for taking misoprostol, a medicine commonly used in abortion care. She was described in intensely stigmatising and dehumanising language as having made “a cold, calculated decision…for [her] own convenience.”

But surely that was a one-off prosecution, especially when the judge on appeal halved the sentence and significantly criticised the original judge?

From 2023, following the imprisonment of a woman for an abortion that took place contrary to the Offences Against the Person Act, it became apparent that the number of prosecutions of women accused of ending their pregnancies was occurring in unprecedented numbers.

Furthermore, there was a dramatic increase in police investigations of women suspected of illegal abortion, but none of these investigations actually reached a court trial.

Criminal law = stigmatisation

Stigma lies at the heart of the criminal justice system. Indeed, the very reason something is considered a crime has been described as being because it attracts “community condemnation”. When the law prosecutes women for ending their pregnancies, it uses language from over 150 years ago to suggest that what they did is seen as so wrong that people expect them to be punished. It is hard to think of anything more stigmatising than treating people who present at hospital with a miscarriage as potential criminals.

And the stigma ripples outwards. Abortion is reinforced in the news media as a crime, not healthcare. In multiple cases, healthcare workers have reported women to the police for suspected “illegal abortions”. In one case, this included a vulnerable adolescent, who, as a result, had her parents notified and her family home searched. In several cases, the bail conditions imposed by the police on women under investigation have included a requirement that they have no contact with children, preventing them from seeing their own

children for six months in one case. What kind of stigma is instilled in the family and children of women arrested when they are told that their daughter or mother presents such a danger that she cannot see her own children?

A meeting to discuss abortion law reform

Against that backdrop, a group comprising those working, campaigning or studying in the abortion sector met recently to discuss abortion law reform.

We acknowledged at the beginning that we met at a time of both opportunity and threat. The sheer horror of such investigations has catalysed legislative change. Clause 208 of the Crime and Policing Bill, which would ensure that no person could be prosecuted for ending their own pregnancy, passed by 379 votes to 137 in the House of Commons, but it had yet to pass the Report Stage in the House of Lords.

We started by hearing the experience of a woman who had been assaulted by her partner, which led to a miscarriage. Due to fear, she did not tell the medical team treating her for the miscarriage about the violence. As a result, she was investigated as a suspect and endured years of intrusive investigation of her phone and computer, as well as living under suspicion from family and friends that she had committed a serious offence, before

eventually a police decision that she had not committed any offence.

Both good news and bad news about abortion rights in Europe

We were fortunate to have speakers at the event from a range of countries. In Europe, there are two opposing trends. On the one hand, over the past two years, France and Luxembourg have enshrined the right to abortion in their Constitutions. On the other hand, the rise of the far-right in countries such as Poland and Hungary has led to new legislation designed to make abortion harder to access.

The Abortion Act takes away control from pregnant people and gives it

to doctors

A panel of legal academics went on to discuss the law itself and the Abortion Act 1967. Even in cases where the pregnant person experiences the procedure as a medical intervention, the structure of the Abortion Act automatically adds stigma. Whether or not those seeking abortions are aware, there is no “abortion on demand” in England and Wales.

98 per cent of abortions take place on the ground that “The pregnancy has not exceeded its 24th week, and continuing it poses a risk of injury to the physical or mental health of the woman or her existing children greater than if the pregnancy were terminated.” 

However, this decision rests with doctors, not with the person seeking the abortion. A second doctor must also agree before the abortion can take place. Abortion is healthcare, yet the current law still treats it as an exception. There is, for instance, no requirement that two doctors agree before a vasectomy can occur. Treating abortion as different from other forms of healthcare inevitably increases stigma, because it removes bodily autonomy and requires doctors to follow the steps set out in the Abortion Act, or else the abortion is

treated as illegal. 

Until abortion is legalised, there will be stigma, but there are also reasons to feel positive

There was unanimous agreement at the meeting that as long as access to

abortion is governed by criminal law, not healthcare need, it will be stigmatised. But we also acknowledged the series of positive changes in the law over the last five years.

Telemedicine allows a pregnant person more privacy and dignity

Telemedicine means a pregnant person can have a consultation online or over the phone and, if eligible, receive a treatment package with medication to enable them to self-administer it at home. Something introduced as an emergency measure during the COVID-19 pandemic has now become enshrined in law and is the most common way to access abortion. This enables a person seeking an abortion to keep that decision more private,

because she no longer has to take time off work or organise childcare to visit a clinic, and so avoid the stigma which might be present in her family or community. 

Northern Ireland is working to turn the promise of legal abortion into real access to services

After the success of decriminalisation in Northern Ireland, political opposition to abortion and stigma among medical professionals who could provide abortion services led to ongoing difficulties in accessing abortion in Northern Ireland. However, later laws that required the Northern Ireland Department of Health to act, together with the determined work of abortion care providers, has helped ensure that stigma does not prevent people from accessing the abortions to which they have a legal right. 

Buffer zones ensure an end to intimidation outside abortion clinics

All abortion clinics in England, Wales and Scotland now have a safe access, or buffer zone, of at least 150m around them, inside which it is illegal to protest, to cause harassment or distress to any person, or to deliberately or carelessly influence a person’s decision to access abortion services. Previously, anti-abortion protests outside clinics showed graphic and often inaccurate images of foetuses, a blatant attempt to stigmatise people accessing services through intimidation.

Abortion without stigma

We all agreed that there was more left to do to achieve for every person an abortion which is safe, legal and accessible. Accessibility is about more than just being able to reach a clinic or receive medication through telemedicine. It also includes being able to access abortion care without stigma from healthcare providers or others in society. The first item on our list towards abortion without stigma has, however, just been achieved. The law has now been changed to ensure that no person can be prosecuted for ending their own pregnancy, and anyone convicted of the offence in the past will be pardoned.