Decriminalisation is so close - we can win this

I was going to write about abortion, then thought I'd write about extremism, but no, it's about abortion

I wanted to write about this last week but instead I went to the Ukraine Solidarity Demo in London to mark the second anniversary since the start of Russia’s full-scale invasion. It was really brilliant, very moving, and I am glad I went. I had been feeling really emotional about it all, having a lot of memories related to September. Being in the crowd was helpful.

Anyway, last week it was reported that an amendment to the Criminal Justice Bill, tabled by Labour’s Diana Johnson, will be voted on this month to decriminalise abortion in England and Wales. It would mean the 1861 Offences Against the Person Act would no longer apply to women ending their pregnancies and put abortion firmly in the realm of healthcare, not criminal law.

The amendment would not change the upper time limit of 24 weeks, and it would not change the exemptions in the 1967 Abortion Act - but it would mean that the few women who seek abortions outside the exemptions will no longer face criminal prosecution and stop the criminalising of women who have had miscarriages, or “unexplained pregnancy loss”.

Last year I sent out FOI requests to police forces in England and Wales to ask how many had investigated abortion-related offences between January 2021 and November 2023, with results showing that 18 forces had investigated 34 cases. The Met did not give me numbers. The Times has more comprehensive data covering a longer period of time, finding that more than 100 women and girls have been investigated for having an illegal abortion.

These cases may have included women who took abortion pills “illegally” - i.e. by ordering them online or, as in the Foster case, by obtaining pills and taking them beyond the upper time limit. And they will also include cases where women and girls have had a miscarriage but have fallen under suspicion, perhaps because their internet histories show they had searched for abortion information, or their phone records show they have called an abortion-related support service, or discussed abortion on messaging apps.

I reported on the increased digital surveillance of women criminalised for pregnancy loss for The Dial in January.

Criminalisation of abortion is a very real and pressing issue. For decades, arrests and prosecutions for illegal abortion were virtually non-existent, yet since December 2022, six women have appeared in court in England charged with illegal abortions – compared with only three women having been convicted of an illegal abortion since the law was introduced in 1861. Most famously, Carla Foster, was sentenced to 28 months in prison for an “illegal” abortion, before being released after one month on appeal.

Other examples are of a girl who miscarried at 28 weeks, and a woman who received no help from the seven police officers as they searched her bins for evidence of abortion pills, while she gave mouth-to-mouth to her premature newborn.

According to The Times, abortion providers have been asked to hand over medical records for 50 women to police investigating unexplained pregnancy loss. Women and girls who have suffered traumatic miscarriages have been criminalised, had their laptops and phones seized, been driven to self-harm, been thrown into jail days after a stillbirth – all because of an outdated law that views women as second-class citizens who do not have rights over our own bodies.

Of course, there will be anti-abortion backlash to decriminalisation. But what is clever about this amendment is that only the most hardened anti-abortion activist publicly states that women should go to jail for an abortion.

Now, I know that some do believe that, and believe it very strongly. I have seen proof of anti-abortion activists who firmly believe in punishing and imprisoning women.

However, in recent years, the anti-abortion movement has sought to make itself more palatable by promoting itself as a pro-women movement, which cares about women’s health and wellbeing. To condemn a change to the law that stops women being hauled through the courts and put into prison, while claiming to be pro-women’s health, would be an act of hypocrisy and expose them. Not that it will stop them. They will simply find new ways to campaign against it.

Predictably, the anti-abortion movement has accused those seeking to decriminalise abortion as legalising abortion up to birth. This is a bit of a blurring of what actually happens in the law, but hey, this is a movement that thrives on disinformation and manipulating emotive issues to win support.

Miriam Cates said that “to make it lawful to end the life of a viable baby right up to the moment of birth for no other reason than it is not wanted is morally wrong”. Nick Fletcher joined in, saying that “This is so extreme. We cannot have a situation where abortion at any stage is legal – that’s obviously a recipe for disaster. If we have to, I’d consider bringing down this Bill”.

Their statements fail to recognise how nearly 90% of abortions happen within the first 12-weeks of pregnancy, and the majority of abortions will continue to be managed within the confines of the 1967 Act. The majority of women who need an abortion later on in pregnancy will overwhelmingly still be managed within the healthcare system.

This amendment is clear - (often vulnerable and traumatised) women will no longer be criminalised, at a time of increasing surveillance and criminalisation. Existing abortion laws and regulation remain intact, including the 24- week time limit, the requirement for two doctors’ signatures, and the grounds for abortion provision. It’s an amendment designed to support women’s bodily autonomy while not frightening the horses.

This means is that for those women who, for whatever reason, are unable to access an abortion within the confines of the Act, will no longer be subject to a possible life-sentence, and that women with unexplained pregnancy loss will no longer face the trauma of being criminalised when already vulnerable and traumatised. It means women who have self-managed abortions at whatever point in pregnancy won’t go to jail. That is unconditionally a good thing. You could frame that as legalising abortion “up to the moment of birth” or you could recognise the reality of women’s lives, respect women to make their own decisions, and trust women as equals.

Without counting my chickens, it looks like we could finally win, with even a pro-choice health secretary backing the bill. A poll found that 55% of MPs are in favour of changing the law to end women being prosecuted for abortion and unexplained pregnancy loss.

It’s a rare moment these days, that we get good news about abortion. I am not taking anything for granted, but it’s nice to have some hope in these difficult times.

There were some typos in this post that have now been fixed - re abortion prosecutions and Carla Foster, and the number of abortions performed before 12 weeks is just under 90%.

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What I’m loving

I wanted to share my friend Anna Vlasenko’s reflection on the second anniversary of Russia’s full scale invasion of Ukraine.

This by Katie Tarrant on scouts who have died on residential trips.

And by Katharine Quarmby, who has been relentlessly investigating asbestos.

What I’m reading

I read Piglet by Lottie Hazell, which was compelling - I didn’t love it but I enjoyed it and it, aptly, filled a need.

Still on an Alison Weir Tudor Queens tip.

And really enjoying The Variations by Patrick Langley.

What I’m watching

OMGeeeee I watched Aftersun. What the hell. I couldn’t stop crying. I woke up at 2am still distressed and upset about it.

That’s not to say it wasn’t amazing. It was. Really really brilliant. But so sad. SO SAD.

Also this documentary on the BBC about the miners strike is very good. It’s called The Miners Strike: A frontline story.

That’s it from me. Write to your MP to secure the abortion vote. We can win this!

Ciao ciao.