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Abortion - In Depth

6 things the abor­tion lob­by won’t tell you about decrim­i­nal­i­sa­tion

The abortion lobby wants a radical overhaul of the UK's abortion laws, and their campaign is cloaked in misleading soundbites. So here are six things the abortion lobby won’t tell us about the biggest change to abortion law in 50 years.

Written by Naomi Marsden as part of the In Depth series.

‘We Trust Women.’

This is a slogan we often hear in defence of abortion.

It’s also the name of a campaign calling for a radical overhaul of Britain's current abortion law. What they want is the decriminalisation of abortion.

Despite the fact that abortion has been legal in Britain for decades, there are some who are dissatisfied and want it to go much further.

And they’ve got a compelling slogan. Who wouldn’t agree that women can be trusted? No doubt abortion campaigners genuinely believe this. No doubt they feel very passionately that what they are doing is right – that they are defending women and making significant ‘progress’ for our rights and bodily autonomy.

What are we told this campaign will achieve? Well, apparently women will no longer face the wrath of a cruel, patriarchal and outdated law. They won’t need to have their abortion signed off by that horribly 'paternalistic' requirement for two doctors. Women will, finally, achieve the golden chalice of true equality: having the same control over our bodies as men..

Yet, what is particularly telling about this campaign lies exactly in what it won’t tell us. It is cloaked in soundbites and promises of women’s liberation, rather than an honest assessment of what this law will mean in practice and what potential disadvantages follow – for both women and for babies.

So here are six things the abortion lobby won’t tell us about the biggest change to abortion law in 50 years:

1. Women are not being made into crim­in­als under the cur­rent law

BPAS, Britain’s second largest abortion provider, have been campaigning for some time for decriminalisation. Their campaign hinges on the idea that women are currently being made into criminals if they have an abortion outside the scope of the law. They have ramped up these efforts, releasing a video entitled Smile, You’re Knicked’, in which a hoard of police officers burst into a woman’s home, as if she is a dangerous kingpin at the centre of a drug trafficking network, and arrest her for possession of abortion pills.

An alarming idea, but utterly false.

The law is often a very different thing on its face than it is in its practical outworking, particularly when it comes to criminal law. The current law on abortion is governed by sections 58 and 59 of the Offences Against the Person Act 1861 (OAPA). This is the Act the abortion lobby want to repeal because, on its face, the OAPA criminalises abortion, and the Abortion Act 1967 creates legal exemptions to this Act.

However, the reality of how the law works in practice is a very different story. For example, the Abortion Act 1967 was intended to allow abortion under specific Grounds — it was supposed to be narrow and it was never intended to allow abortion on request. However, in reality this Act is interpreted very loosely and, in fact, 98 per cent of abortions in Britain now occur on request.

Similarly, the OAPA does not result in women being made criminals left, right and centre. I suggest that everyone swayed by this propaganda looks up prosecutions under this Act. Almost all the prosecutions in the past 10 years have been for third parties who have either attacked or given abortifacients to women without their knowledge or consent, such as the man who slipped abortion pills into his wife’s breakfast.

The OAPA has served far more to protect women than it has to harm them.

There have been only two prosecutions for women in the last 10 years under the OAPA – both in extreme circumstances when their babies were very late in term. One of these cases, Sarah Catt, involved a woman who took abortion pills at 39 weeks’ gestation, delivered the baby at home and buried the body. To this day, the baby has not been found. She had gone to the doctor on several occasions and had plenty of opportunities to procure an abortion under the law. Her actions, however, involved the destruction of a very viable child. As the judge in the case said, ‘all right-thinking people would consider this more serious than involuntary manslaughter or indeed any offence save murder.’

As with assisted suicide, the law has a stern face but a kind heart. It should send a clear message that regulates behaviour, i.e. that a viable baby should be protected and that abortions should be performed in clinically-directed circumstances only, for a woman’s safety. In practice, it is often held not to be in the public interest to prosecute an individual who acts outside the law, thus it is fallacious to claim that women are being regularly criminalised for performing abortions.

2. The abor­tion lobby want abor­tion up to birth

MPs campaigning on this issue consistently attempt to deny this claim. Perhaps they don’t know their own lobby, or perhaps there are differing views within it. However, whilst I sincerely hope this isn’t true, there’s evidence to suggest that this is the ultimate intention.

The only other statute left regulating abortion once the OAPA is repealed is the Infant Life Preservation Act 1929, which makes it an offence to abort a baby capable of being born alive, unless it will save the life of the mother. Section 5(1) of the original Abortion Act 1967 described this Act as "protecting the life of the viable foetus." Northern Ireland has an identical law.

How long will it be before this statute too is described as ‘cruel, draconian, and outdated’? It’s not beyond the realms of possibility. After all, a woman such as Sarah Catt could also have been charged under this Act. Abortion up to birth has already been made legally permissible by our friends in New York, Canada and Australia.

BPAS CEO, Ann Furedi, is a highly influential voice in the pro-abortion movement. She does not hide the fact that she believes abortion should be available up to birth. In 2016, she stated:Let me be very clear: there should be no legal upper limit” i.e. we need to get rid of the 24-week limit. It’s also worth noting she has publicly said that she believes life begins at conception, she is pro sex-selective abortion, and she believes abortion should be used as a form of birth control.

The reason we have restrictions around abortion from 24 weeks is the ‘viability argument’ -- the idea that the baby is now capable of being born alive (and indeed surviving) which means it can be independent of its mother. However, for some in this lobby the woman’s interests should always override the baby’s, even if it is a ‘person’ from this point.

We’ve already seen this inserted into draft legislation. In Diana Johnson’s Abortion Bill last year, a draft of the Bill was accidentally placed online and then quickly taken down. Significantly, it repealed the Infant Life Preservation Act and allowed women to self-abort up to birth. When the final Bill was published, this provision was removed, but it does reveal that the intentions of campaigners within Parliament align with Furedi’s.

The ramifications of such a move are considerable. A baby’s life, whilst it remains in the womb, will have no protection at all. Polling has consistently shown that the general public do not want this. 93% of people polled in Northern Ireland in 2018 believe that both lives in a pregnancy are important.

It will also potentially have huge consequences for women. Medical regulation simply isn’t sufficient in this regard. Supplying medications without prescription will still be an offence, but with a much-reduced penalty. We are already seeing women accessing abortion pills online. As abortion pills become much more readily available, without the restrictions inherent in the criminal law, this incurs a greater risk that women may take abortifacients at a much later stage of gestation without an accurate gestational scan, or they will potentially be more at risk to coercion. This is not about patronising women – it’s about protecting them, something abortion clinics do not have a great track record on. Making something legal does not suddenly remove the risks involved.

So why are BPAS just campaigning to decriminalise up to 24 weeks? Well it’s because they know the public aren’t with them. What we know from polling is that only 1% of people actually support abortion up to birth for any reason. The majority of people, particularly women, actually support greater restrictions on abortion.

3. Decrim­in­al­isa­tion removes the last vestige of leg­al pro­tec­tion for pre­b­orn babies – both wanted and unwanted.

This is the perhaps the most significant change that decriminalisation will usher in to our legal system.

The legal status of a baby in the womb is, quite frankly, a totally nebulous concept that has flummoxed even the greatest minds in our legal system both domestically and internationally.

For many years, lawmakers avoided any definitive conclusion as to what exactly a baby is, and what rights it therefore deserves, when cases came before the courts.

Much of this was influenced by medical ethics. In ethics, the debate rages about whether a baby can be a biological human being and yet not a person, with the full rights entitled to born individuals. What makes something a person? ask the ethicists. Is it rationality? Is it moral sensibility? Is it independence?

The courts never reached any definitive answer. What is agreed so far is that a baby in the womb does not possess a legal personality in the same sense as a born individual. However, it does have some status legally: it is recognised as a separate, biological human being and a unique organism. It is not an appendage of the woman, like her kidney or her arm. It is not ‘nothing’—it is definitely something and we need to consider what that something is very carefully, else we may be destroying something that’s just as much a person as you or I.

The fact that a foetus is not a ‘nothing’ is demonstrated by the degree of protection it is offered from termination. All Acts relating to abortion demonstrate attempts to protect the preborn baby, and not merely from indignity or maltreatment, but from destruction. Although it does not necessarily follow that it is therefore a person, the fact that it is protected from abortion, save in specific circumstances, gives it a certain value and recognition under the law.

Under decriminalisation, this protection and recognition is gone. A biological human life can be terminated on request. I’m not for a moment suggesting that any woman has an abortion for flippant reasons, and I have great sympathy for the agonizing grief that many go through in making this decision. But it has to be recognized that this change has wide and very serious implications for babies in the womb. The more justification provided for a baby’s destruction, the more it is devalued in status and the less it is protected. Significantly, this will affect all babies pre-28 weeks, whether they are wanted or not.

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4. Decrim­in­al­isa­tion affects all preg­nant women

As mentioned in part one, the two statutes governing abortion at present are Sections 58 and 59 of the Offences Against the Person Act 1861 and the Infant Life Preservation Act 1929. These Acts serve to protect foetal life as well as pregnant women.

Section 58 OAPA provides that, if a pregnant woman is attacked or poisoned by a third party and she miscarries, her perpetrator can be prosecuted for the miscarriage. If section 58 of the OAPA is repealed, there will be no criminal penalty for her miscarriage pre-28 weeks. If the Infant Life Preservation Act is repealed, there will be no criminal penalty for her miscarriage up to birth. It isn’t possible to ‘murder’ a baby in the womb, but it is still possible to secure a conviction for ‘child destruction’ if the baby is viable, under the 1929 Act.

The law already needs reforming because it is often difficult to prove that a perpetrator intended the baby’s death, and women want justice for their baby at any stage of gestation – not just after viability.

Decriminalisation just makes this much worse. There is no explicit offence of forced abortion elsewhere in the law which means that charges will instead be brought solely for injury to the pregnant woman’s body, such as murder, battery, GBH or poisoning offences. It won’t recognise the injury caused to her baby as an extention of her injuries.

Whilst this means the perpetrator will still be brought to justice, this patently will not be remotely satisfying for a mother; losing a much-wanted baby is devastating.

In her Abortion Bill, which repealed s. 58 of the OAPA, Diana Johnson MP introduced a 'non-consensual termination of pregnancy' offence to cover this gap in the law. Whilst this provision creates an offence at all stages of gestation, it doesn't act as an effective replacement for the current law because it removes all mention of the baby itself. The offence hinges entirely on whether the woman consents to the termination or not, rather than the inherent need to protect foetal life because of its innate value, as well as its value to the mother. Any mum who loses her baby this way wants recognition of the little person living inside them. This is why parents of stillborn babies have been fighting for years for birth certificates, proving that their baby existed before 24 weeks. It matters to women that their baby is recognised and that they receive justice.

In Northern Ireland, should section 58 of the OAPA be repealed from 22nd October, there will be no criminal framework available that will cover this kind of offence. We can only hope that one is brought in if decriminalisation is successful across the UK. Make no mistake, decriminalisation is a big problem for the 3 in 4 women who keep their babies.

5. Under decrim­in­al­isa­tion, abor­tions could be leg­ally obtained because the baby is a girl or because it has a minor disability

Ground E of the Abortion Act 1967 allows for abortions for ‘serious handicap’ up to birth. In practice, this has been liberally applied. There is evidence that abortions have been obtained for minor disabilities such as cleft palate or club foot. We have moved to a society where people with Down’s Syndrome have been almost eradicated. 74% of babies prenatally diagnosed with Down's are aborted in England and Wales. In contrast, in Northern Ireland only 1 woman travelled to have a termination for Down’s in 2016. 90% of babies went on to live, creating a very different culture around disability than the rest of the UK.

As a result of this, we have seen a shift in society where, on the one hand, we claim to champion those with disabilities, and on the other hand we accept that they can be terminated purely on the basis of their disability. This sends the undeniable message that those with disabilities are less worthy of life. I recognise that many parents in this situation are presented with abortion as their only or best option, and that it can be very difficult to raise a child with a disability. But we also have to acknowledge that we are fundamentally devaluing the lives of disabled people by practically demonstrating that we don’t want to bring them into the world, or we think it kinder not to. Lord Shinkwin, who has brittle-bone syndrome, expressed this eloquently during recent debates on Northern Ireland in the House of Lords.

Similarly, we have evidence that sex-selective abortions do occur in the UK. Following a 2012 investigation by the Telegraph, three doctors were prosecuted for offering to perform sex-selective abortions. However, the prosecutions were not upheld, as they were found not to be ‘in the public interest’.

We say we want equality for women, but how can that be achieved if we allow them to be killed in the womb purely on the basis of their sex? Particularly when we see the consequences of sex-selective abortion on the rates of women trafficked and abused in cultures where it is widespread.

Under decriminalisation, there will be no need for a medical professional to sign off on an abortion under one of the Grounds of the Abortion Act 1967. This means that abortions can occur on the basis that the baby is a girl, or if it has any kind of disability – no matter how severe. Will we follow Canada, which has been described as a 'sex-selective haven' due to its lack of criminal framework around abortion? The abuses we see under the 1967 Act at present will not only become more widespread, they will be totally permissable under the law.

Without wanting to sound like scaremongering, we do need to genuinely ask ourselves where this will stop. As pre-natal screening becomes more and more advanced, we will know much earlier on (and in much greater detail) the sex, genetic defects, or even potential future health risks in foetuses at a much earlier stage in gestation. If abortions will be available for any reason, how are we ever to create a society in which discriminatory practices won’t become increasingly common?

6. Decrim­in­al­isa­tion will make it much harder to pro­tect women from coer­cion and abuse.

It is ironic that, in the fight to secure supposed gains for women’s equality, this change will actually see a much greater detriment to vulnerable women.

Under our current law, 1 in 7 women are coerced into an abortion by partners or family members. Under decriminalisation, it is still unclear what kind of framework will be in place to protect and safeguard such women through medical regulation.

With decriminalisation, the requirement for two medical doctors to sign off on the abortion will be gone. We are already seeing moves towards this, with guidelines suggesting that women should be able to self-refer for an abortion and use remote assessment. There is also increasing scepticism of pre-abortion counselling. How will coercion be adequately identified if women are not coming into contact with professionals at several stages in the termination process? These supposed 'barriers' actually act as safeguards for these women.

Abortion providers are supposed to be trained to detect signs of coercion or abuse, but we know that this does not always happen. By getting rid of the Grounds for abortion under the ’67 Act i.e. making abortion available for any reason, we are perpetuating a no-questions-asked culture around abortion where women are not adequately safeguarded.

Some argue that it’s 'none of our business’ why women have chosen to have an abortion. But what if she is a 16-year-old who has been manipulated and abused by an older family member? What is she is a traumatised victim of domestic abuse, coerced into having an abortion by her abuser? What if she is a victim of trafficking forced to have an abortion by her traffickers? We must ensure that women in these cases are adequately protected.

Don’t turn a blind eye

It’s so easy to ignore all of these factors in pursuit of the current zeitgeist of autonomy. But, if we truly claim to care about women, how can we ignore such serious and widespread consequences?

Please don’t believe that this is all about equality and 'choice'.

Talk to women who’ve suffered from abortions, look up abortion videos and pictures, grapple with the ethical arguments, ask why so many women see pregnancy as a hindrance to their progression in a society. Seek the truth and pursue it ruthlessly. I hope you will see that decriminalisation is not part of a society that truly liberates women.

Don’t take anything you hear at face value – especially when it comes to abortion, which is often shrouded in euphemisms and false claims on both sides of the argument.

I do trust women. I truly want the best for them and want them to be kept safe from the harms that abortion causes them, and I want a society where women and babies are truly looked after.

I just don’t trust the abortion lobby.

Hopefully I’ve demonstrated that, quite frankly, neither should you.

Also in this series

6 things the abor­tion lob­by won’t tell you about decrim­i­nal­i­sa­tion is part of the In Depth series in the Abortion cause.

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