Our aim in this explainer series is to shed light, not heat, on what exactly is the law relating to abortion in a number of jurisdictions. Our first piece covered the Republic of Ireland, and our second covered the recent change to the law in Northern Ireland.
Our aim at the Minimise Project is to help people have better to conversations about pro-life issues – and in doing so, we hope it will help to raise awareness of the injustice of abortion.
Historically, the first statutory prohibition on abortion originated in Lord Ellenborough’s Act 1803. But the principal prohibition arose from sections 58 and 59 of the Offences Against the Person Act 1861 which made it a crime to ‘procure a miscarriage’. Additionally, the Infant Life (Preservation) Act 1929 created the offence of child destruction for any ‘child capable of being born alive’, and clarified that abortions could take place ‘for the purpose only of preserving the life of the mother.’
The legal case of R v Bourne from 1938 was an important part of Britain’s abortion law too. The defendant, Dr Aleck Bourne, was a prominent gynaecologist who performed an abortion on a 14 year old girl who had been raped by 5 soldiers. He was acquitted in his trial of performing an illegal abortion, and the judge held that an abortion was permissible if continuing with the pregnancy would probably ‘make the woman a physical or mental wreck’.
In the 1950s and 1960s, there were at least three attempts to legalise abortion in the UK parliament via Private Members’ Bills, but those efforts failed.
Then in 1967, David Steel MP, a member of the minor Liberal Party, introduced a Private Member’s Bill entitled the ‘Medical Termination of Pregnancy Bill’ to legalise abortion in Britain. When introducing the bill for its second reading in the House of Commons on 22 July 1966 he made his intentions clear as what he wanted the bill to achieve:
‘We want to stamp out the back-street abortions, but it is not the intention of the Promoters of the Bill to leave a wide open door for abortion on request.’
Reflecting on its passage fifty years later, he still implied that his intention in introducing the bill was to prevent backstreet and ‘botched’ abortions, and even offered a view that the law should be expanded further. (Elsewhere, however, he has expressed some regret over the numer of abortions which his bill has permitted.) The bill passed in the House of Commons on a 262-181 vote, was then approved in the House of Lords, became the Abortion Act 1967 and came into operation in April 1968. It has since led to over nine million abortions.
The next change to the law occurred in 1990 with the passing of the Human Fertilisation and Embryology Act. Pro-life MPs, such as David Alton, successfully managed to reduce the gestational limit from 28 weeks to 24, but at the same time abortion access was extended in situations where the unborn child had a serious disability.
An attempt to reduce the gestational limit to 21 weeks was rejected in 2006, and a bill to insert a seven-day waiting period before an abortion was rejected in 2007. And the next year, in 2008, despite attempts from both pro-life and pro-choice MPs to change the abortion law via the Human Fertilisation and Embryology Act 2008, MPs voted to maintain the current gestational limit of 24 weeks in most cases. MPs rejected reducing the limit to 12, 16, 20 or 22 weeks. A 2011 attempt to legislative remove the role of abortion counselling from abortion providers was also rejected by MPs.
In 2015, Fiona Bruce MP’s bill to clarify in law that sex-selection was not a grounds for abortion was rejected by MPs.
The next change to abortion law may come via a cross-party effort spearheaded by Fiona Bruce MP. Her bill would prohibit the availability of abortion for minor disabilities such as cleft palate. Interestingly, in the weeks following her bill’s introduction to the House of Commons, an impressively diverse set of MPs have publicly declared their support for it.
In summary, the law on abortion in England, Wales and Scotland is contained within the Abortion Act 1967, as amended by the Human Fertilisation and Embryology Act 1990.
- In Scotland, abortion became a devolved issue in 2016 via the Scotland Act, but the 1967 Abortion Act remains in place.
- In Wales, abortion is not a devolved matter, per the Government of Wales Act 2006.
- In Northern Ireland, the 1967 Act was never extended to there, but Westminster changed the laws there in 2019 and 2020, which we have previously written about here.
The grounds for abortion
The 1967 Act contains a number of distinct distinct grounds on which an abortion is legally available. In the annual abortion statistics report published by the Department of Health and Social Care, these grounds are subdivided into categories A–G.
A ‘registered medical practitioner’ can perform an abortion if ‘two registered medical practitioners are of the opinion, formed in good faith’ that any of the below grounds are met.
|Grounds in the Statistics Report||Grounds for abortion||Gestational Limit||Corresponding provision in the 1967 Act|
|A||That the continuance of the pregnancy would involve risk to the life of the pregnant woman greater than if the pregnancy were terminated.||Up to birth||Section 1(1)(c)|
|B||That the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman.||Up to birth||Section 1(1)(b)|
|C||That the pregnancy has NOT exceeded its 24th week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman.||24 weeks||Section 1(1)(a)|
|D||That the pregnancy has NOT exceeded its 24th week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of any existing child(ren) of the family of the pregnant woman.||24 weeks||Section 1(1)(a)|
|E||That there is substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.||Up to birth||Section 1(1)(d)|
|F||To save the life of the pregnant woman.||Up to birth||Section 1(4)|
|G||To prevent grave permanent injury to the physical or mental health of the pregnant woman.||Up to birth||Section 1(4)|
Other aspects of the law
Sections 3 and 3A of the Act specify that abortions must take place in approved settings (originally hospitals), but this law was changed in 1990 to permit the Secretary of State to approve other locations. This change in the law came into focus in 2020, when the Secretary of State designated a ‘home’ as a suitable location for abortion, thus usshering in the ‘telemedicine’ abortion scheme in Britain.
Section 4 of the 1967 Act offers some protection for freedom of conscience. This protection is greater than that offered in Ireland’s 2018 Act, because in Britain any person can avail of the protection of the Act, whilst in Ireland it is only 3 classes of person (doctors, nurses and midwives).
- Criminal Offence
Per section 5 of the 1967 Act, ending the life of an unborn child (outside of the set grounds under section 1) remains unlawful.
Whilst much ink could be spilled about the impact of the 1967 Abortion Act, three of its effects are worth noting in particular.
1) It would be an understatement to say that the 1967 Abortion Act has had an immense impact upon Britian. Over 9 million abortions have taken place since 1967, and the number is still increasing. (To verify the 9 million figure, see the 8.7 million calculated up to 2018, plus the 2019 statistics, and the initial statistics from 2020).
2) Despite being framed in limited terms, the reality of the 1967 Act is that it has facilitated abortion on request in Britain. Most abortions occur under ground ‘c’, which is designed to protect a woman’s mental health, but in 2019, 98% of all abortions were carried out on this basis. There is clear evidence of doctors pre-signing the relevant abortion forms before they have even seen a patient who is seeking an abortion, which is illegal.
3) The Act has perpetuated a horrifying discriminatory stereotype of people with disabilities for over 50 years, because the disability of a preborn child is an explicit grounds for abortion (ground ‘e’). It is not uncommon to hear about women feeling pressured into getting an abortion where her unborn child has Down Syndrome or even a cleft palate. One young mother recently told the BBC that when her child was diagnosed with Down Syndrome in utero, ‘In all honesty we were offered 15 terminations‘. To offer even less legal protection to someone on the basis of their disability is pure discrimination, and we hope that Heidi Crowter is successful in her legal case challenging this discriminatory aspect of the 1967 Act.
As already noted, the MP who introduced the Abortion Act into Parliament back in 1966 said he never foresaw ‘anything like’ the current number of terminations when he introduced his bill. This should give modern legislators pause for thought before making any efforts to expand abortion access even further.