Tampering with abortion law could make things worse

The Herald Scotland

16 hours ago

However, a legal academic has told The Herald he is concerned changes to the law may risk making the situation worse for women the legislation could affect.
Read more:
From 19th century to present day: Abortion laws in Scotland
Why Scotland must press on with abortion law reform
Last week, MPs voted for an amendment to the Crime and Policing bill in the House of Commons on Tuesday.
Put forward by Labour MP Tonia Antoniazzi, the NC One amendment seeks to remove women from long-standing legislation the Offences Against the Person Act 1861 and the Infant Life (Preservation) Act 1929 in relation to their own pregnancies, which criminalise abortion.
This will become law if the provision remains unamended by the Lords during its forthcoming scrutiny of the bill.
However, this does not include Scotland as abortion law is devolved.
In England and Wales, the Offences Against the Person Act of 1861 criminalises anyone who uses instruments or administers 'poisons' to a woman with intent to cause her to miscarry.
In Scotland, abortion is governed under Common Law, however, there remains widespread confusion and uncertainty over whether a woman could be prosecuted as they have been in England.
Under common law, while prosecution of women and pregnant people seems unlikely, legal academic Dr Lynsey Mitchel argues that 'it is not something that can be guaranteed.'
As a result, the Scottish Labour MP, alongside other Scottish Labour MPs including Lillian Jones and Joani Reid, is pushing for change north of the border.
Ms Murray told The Herald: 'There is a presumption that abortion is not a criminal offence in Scotland. It still is, it's just a different piece of legislation. It is still there within common law.
'It is something that can't be forgotten about. There is a time limit on this government of May next year and the legislative time that is there is running down.'
The MP said she was pleased the amendment was voted through by MPs last week down South.
'Whilst it affects a really small number of women, it is really fundamental to their lives. Families have been completely destroyed as a result of having to go through a criminal justice system,' Ms Murray said.
However, for Strathclyde University legal academic Jonathan Brown, the concern is that "tampering" with such legislation through pursuing a route of decriminalisation could negatively impact women here.
Dr Brown told The Herald: 'There's a lot of well-meaning people talking about decriminalisation but they don't really know what the law in Scotland is and they are actually liable to make things worse if they go tampering with it.'
He said the UK Abortion Act passed in 1967 provides a 'prime example' that the laws around abortion in Scotland should not be changed.
The academic pointed out that before 1967, only one doctor was required to authorise the termination of a pregnancy but following the act that year, there is now a requirement of two doctors.
'What you've got if you start tampering with the law is a real possibility that you make things worse. It's happened before and it's likely to happen again,' he said.
However, he did say legislation such as the Concealment of Birth Scotland Act 1809 should be abolished.
Between 1922 and present day, The Herald understands five women have been prosecuted under this 1809 statute in Scotland.
'The 1809 Act is problematic." Dr Brown said, "It's created situations in which the woman is convicted on the same evidence that sees the provider acquitted.
'If you abolish it, what happens is it no longer makes a carve out in cases of murder which sees women being prosecuted and convicted on the basis of less evidence."
Asked what he would say to anyone calling for decriminalisation in Scotland, Dr Brown urged them to consider other reforms.
'This a good opportunity to explore the possibility of repealing the 1809 act as we need to be clear that the law relating to abortion in Scotland is completely unlike the law in the rest of the UK," he said, "You can't assume that what works for another part of the UK will work for Scotland."
Asked what she wants to see in Scotland, Ms Murray told The Herald: 'I want to get to a stage where we get consistency in the law in all four countries of the UK.
"We've now potentially got decriminalisation in England and Wales. We need Scottish law to catch up.
'It needs to happen before the Scottish Parliament elections in 2026.'
Given the time it takes for legislation to be passed, the Scottish Labour MP admitted the the ability to do this would be difficult.
Ms Murray said: 'It's recess now and it's not back till the beginning of September so this is absolutely something we need to get a move on with.'
The Labour MP said another major concern for her is that some women are forced to travel from Scotland to England to receive an abortion.
One woman every four days has to make the journey to access abortion care because no health board north of the border provides care up to the legal limit of 24 weeks' gestation.
"This is unacceptable...better provision needs to be there," Ms Murray said, "There is now a life-threatening concern."
For BPAS, decriminalisation of abortion should form a part of wider reform of abortion laws in Scotland.
'I feel like it would be in everyone's interest to have clarity that you can't prosecute women or doctors under Common Law,' said Rachael Clarke, head of advocacy for BPAS.
Ms Clarke agrees with the legal academic Dr Brown that the 1809 act is an issue but she says the bigger issues in Scotland are around provision of and access to abortion services.
In Scotland, you can only have a termination after 20 weeks in cases where there is either a foetal abnormality or the woman's life is at risk.
'In Scotland what we really need is abortion law reform because the care that can be provided to women is in line with the 1967 act, it's not in line with international best practice and it limits the kind of care that women can get and as a result we need change.
'Off the back of what's happening in England and Wales, this is an impetus for reform not for doing exactly the same thing in Scotland.'
The Scottish Government has set up an expert group to review the law on abortion and advise on whether it should be changed.
The Herald understands proposals from the group are expected to be published in late August or early September.