From 19th century to present day: Abortion laws in Scotland

The Herald Scotland

3 days ago

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.
Some Scottish Labour MPs, including Katrina Murray who spoke to The Herald about her plea to the Scottish Government this weekend, have been calling for Scotland to follow suit.
But should they and, fundamentally, can they?
Before we answer that, let's take a look at the situation down South.
Situation down South
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.
Section 58 and 59 of this act renders a woman who acts to end her own pregnancy or anyone who facilitates a woman obtaining an abortion criminally culpable.
Section 60, has the bespoke offence of concealing a pregnancy.
Under this, if the prosecution are able to show that you were pregnant and either a dead child has shown up that can be linked to you or there is no child despite the fact you were pregnant that can be criminal.
This legislation does not cover Scotland, as specifically stated in section 78 of the act itself.
Read more:
Lucy Grieve: Scotland Must Press On With Abortion Law Reform
Abortion Laws in Scotland
So what is the situation in Scotland?
Legal academic at Strathclyde University, Dr Jonathan Brown told The Herald the laws around abortion in Scotland are 'radically different' to those in England and Wales.
'The Scottish laws relating to abortion has almost nothing in common with the law relating to abortion in the rest of the UK, including Northern Ireland,' he said.
Instead, abortion is criminalised by Common Law, however, there remains widespread confusion and uncertainty over whether a woman could be prosecuted as they have been in England.
Under this, while prosecution of women and pregnant people seems unlikely, legal academic Dr Lynsey Mitchel argues that 'it is not something that can be guaranteed.'
Another piece of abortion legislation covering Scotland is the UK Abortion Act passed in 1967 which excludes Northern Ireland.
In section 5 of this act, it states that 'anything done with intent to procure a woman's miscarriage' is unlawfully done (unless authorised by section one of the act).
Under this law, all abortions still require two doctors' signatures, and women must meet specific legal criteria to qualify for an abortion which essentially means that not wanting to be pregnant is not a valid reason to have an abortion.
There's also the much older Concealment of Birth Scotland Act of 1809.
Dr Brown explained: "What it does is essentially give rise to an evidentiary presumption that a woman has killed her own child that was born alive if she concealed her pregnancy.
'The prosecution don't need to prove the baby was born because it is designed to cover cases where a woman can be shown to have been pregnant and no child has appeared at all.
"So it's got that latent flexibility in it that means that the prosecution don't need to prove the child was born alive. It then puts the burden on the woman to prove that she either aborted or gave birth to a still born child."
This was the main piece of legislation used in Scotland to prosecute women for abortions or a long time, the academic tells The Herald.
'In the 19th century, that's the statute being used to prosecute women until the amount of women prosecuted for this drops off in the 20th century,' he said.
Dr Brown said the 1809 act is a 'problematic' and 'discriminatory' piece of legislation which he said needs to see reform.
He explained: 'What it does is essentially give rise to an evidentiary presumption that a woman has killed her own child that was born alive if she concealed her pregnancy.
'The prosecution don't need to prove the baby was born because it is designed to cover cases where a woman can be shown to have been pregnant and no child has appeared at all so it's got that latent flexibility in it that means that the prosecution don't need to prove the child was born alive.
"It then puts the burden on the woman to prove that she either aborted or gave birth to a still born child.
'For all that this is openly discriminatory and quite harsh, it is actually a piece of legislation that is brought in for reasons of mercy because before 1809, it was act the mothering of children that applied here which meant that if you were convicted under these circumstances you were guilty of the crime of murder, a capital crime at the time.'
Under the 1809 act, the maximum sentence for concealing abortion is two years.
Between 1922 and present day, The Herald understands five women have been prosecuted under this 1809 statute in Scotland.
There has been one 21st century case involving a woman in respect of her own child. Any other abortion case has involved abortion providers.
Out of all these cases, no woman was acquitted.
'If it's brought in, it tends to be a conviction or a plea,' said Dr Brown, who has scoured the archives on these cases.
He added: 'In England and Wales…there has been an uptick in the number of prosecutions brought, there hasn't been anything like that in Scotland.', he said.
How does this fit in with the legal limit of 24 weeks?
Across the UK, the legal limit for an abortion is 24 weeks into the gestation period.
Dr Brown stressed that when considering illegality beyond this time period in the 1967 act, it is looking specifically at medical professionals.
'When it is talking about criminality in the context of the act, it is talking about the criminality of doctors who don't comply with what is expected of them. It doesn't criminalise woman.' he stressed.
'One of our institutional writers, David Shum, stated the foetus in Scots law is nothing more than part of the mother's body and self-harm is not criminal and, if the foetus is a part of the self, the woman acting to harm it is not criminally culpable.'
Although a woman who procures drugs illegally to end her pregnancy may not be guilty of the crime around abortion laws, she may be guilty of another crime such as possession of a controlled substances under the Misuse of Drugs Act.
'The only way I can see a women being prosecuted [in Scotland for abortion] is if a woman gets pregnant, doesn't tell anyone at all that she is in fact pregnant and then having secreted the fact of her pregnancy from absolutely everyone, does something at a sufficient at a sufficiently late stage of the pregnancy in a circumstance that leaves evidence of a child that could have been born alive.
'In that circumstance, the 1809 act could be applied.'
What action is the Scottish Government taking?
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.