Abortion decriminalisation vote: ‘MPs must beware unintended consequences’

This is one of two op-eds about a proposed amendment to the Criminal Justice Bill, which would prevent women being criminalised for seeking an abortion at any stage – you can find an alternative view here from Labour MP Dame Diana Johnson, who filed the amendment. The bill returns to the Commons today, though the amendment is not likely to be voted on today.

One of the dangers of legislation is unintended consequences. Our party is rightly quick to criticise the Government when populist proposals risk unintended consequences for vulnerable groups – refugees excluded by immigration curbs or homeless people shunned by attempts to limit anti-social behaviour.

It is all too easy to wilfully ignore such consequences when the wider agenda makes it expedient. But as a party that cares for the vulnerable, we must be better than that, however noble the intentions. I am writing this piece because I fear exactly such unintended consequences arising from Dame Diana Johnson’s amendment to the Criminal Justice Bill that would remove offences making it illegal for women to perform their own abortions.

‘Amendment would remove time limit for women performing own abortions’

I have enormous respect for Dame Diana and do not doubt that she and my colleagues supporting her are well-motivated. The criminal justice system requires an overhaul in its treatment of women and does not always exhibit appropriate compassion for vulnerable women, as women seeking illegal late-term abortions often, though not always, are.

But Dame Diana’s amendment goes further than simply “ensuring no woman would be liable for a prison sentence as a result of seeking to end her own pregnancy”, as its explanatory statement asserts. The amendment would not merely end custodial sentences for women in such circumstances but also remove women performing their own abortions from the criminal law altogether so no offence would be committed if a woman were to end the life of her unborn child “at any gestation” (to also quote from Dame Diana’s explanatory statement) for any reason, even long after a baby is viable.

The explanatory statement seeks to present the amendment as moderate, insisting it would not change the abortion time limit. This may be true on paper, but it would de facto remove any time limit for women performing their own abortions since there would no longer be any criminal deterrent against doing so at any point.

‘Labour ought to permit diversity of views on grounds of conscience’

The abortion debate is often presented as a debate between competing rights – those of the woman and the unborn child – and people will differ as to the appropriate balance of these rights or the point in pregnancy at which that balance may change. The Labour Party ought to permit a diversity of views on grounds of conscience. And yet, when it comes to allowing women to perform their own abortions up to birth, we should not have to choose between women and unborn babies because such a proposal would endanger both parties.

A recent government review highlighted the dangers of taking abortion pills later in pregnancy. The review found the complication rate for medical abortions occurring in clinical settings at 20 weeks or later is almost 160 times higher than for medical abortions under ten weeks, the legal limit for at-home abortions, because of the risks associated with taking pills unsupervised later in pregnancy. The complication rate would likely be much higher if pills were taken outside of a clinical setting after the legal limit, which would no longer be illegal if Dame Diana’s amendment were to pass.

Supporters of her amendment argue it would merely bring abortion laws in England and Wales in line with Northern Ireland. However, Northern Ireland does not have a ‘pills-by-post’ scheme so the comparison is misleading. It is this scheme in England and Wales, whereby women can acquire pills without an in-person appointment to verify their gestational age or health, that gives us such concern about the unintended consequences of the amendment.

Such dangers were highlighted last month when a paper published in the Irish Medical Journal revealed that a woman almost died from an ectopic pregnancy after having a medical abortion. The paper states that this episode “could have been prevented by an ultrasound”. And yet it is precisely in-person consultations, where a woman’s health can be checked, that are bypassed by the pills-by-post scheme.

‘Creasy amendment would remove key safeguards’

These problems are unlikely to be solved by Stella Creasy’s alternative amendment that not only removes any meaningful legal deterrent against late-term abortions without specifying an alternative, but also goes further than Dame Diana’s proposals by decriminalising abortion up to 24 weeks for women and abortion providers.

This would remove key safeguards and any legal sanction against abortion providers dispensing or women taking abortion pills at home up to 24 weeks gestation, long after the ten-week limit when it is considered safe to do so.

Supporters of the amendments argue our current abortion laws are some of the strictest in the world because women can be imprisoned for life under an archaic law. This is disingenuous at best. The UK actually has some of the most liberal abortion laws in the Western world – our time limit is double the 12-week average among EU countries.

‘There must be a better way’

As for the danger of women being imprisoned for life for illegal abortions, it is fanciful to suggest such a sentence would ever be passed. Judges have wide discretion in imposing sentences.

Even in the case of Carla Foster, who admitted lying to obtain abortion pills eight months into pregnancy, her initial sentence of 28 months was swiftly suspended on appeal, likely creating a precedent for future cases. We also need to be honest that the small number of recent such cases have arisen not because authorities have launched a witch-hunt against women seeking abortions but because the pills-by-post scheme has made illegal late-term abortions easier.

Abortion is an emotive and complex subject requiring compassion and nuanced, respectful debate. It would not serve us well if Labour unwittingly obtained the reputation of being the party of late-term abortion, a position deeply unpopular with the public. There must be a better way that protects both women and viable, unborn babies.

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