Why Scotland must press on with abortion law reform

The Herald Scotland

6 hours ago

Yet that risk had existed for more than 160 years. Underpinned by the Offences Against the Person Act 1861 – a law passed by an all-male parliament before women had the right to vote – having an 'illegal' abortion outside of tightly controlled circumstances was a crime that carried with it a maximum life sentence. Despite decades of progress in both abortion provision and public opinion, the threat of prosecution remained.
Last week's vote in Westminster is welcome progress, but as abortion law is devolved in Scotland, the change will only apply to women in England and Wales. This means that Scotland now stands as the only nation in the UK that has not moved to remove abortion from the criminal law. That must change.
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When I co-founded Back Off Scotland in 2020 to end protests outside abortion facilities, I was struck to learn how out-of-step our laws were with how abortion care is actually provided. Despite important innovations in abortion provision – such as the introduction of telemedical abortion – Scotland's legal framework remains stuck in the 20th Century.
Our abortion law – the Abortion Act 1967 – is now almost 60 years old. Whilst this was revolutionary piece of legislation in the sixties, it is now no longer fit for purpose.
Under this law, all abortions still require two doctors' signatures, and women must meet specific legal criteria to qualify for an abortion. In practice, this means that simply not wanting to be pregnant is not a valid reason to have an abortion.
Despite this, Scotland has taken bold steps to improve abortion access in the past: for example, through the introduction of telemedicine during the pandemic.
Introduced at pace by the Scottish Government to reduce the spread of the Coronavirus and ensure that those who needed an abortion were still able to access one during the pandemic, the temporary introduction of Early Medical Abortion at Home (EMAH) in March 2020 meant that women under 12 weeks' gestation were able to take both abortion medications – mifepristone and misoprostol – at home if strict criteria were met following a remote teleconsultation.
Off the back of calls from various medical bodies and women's rights groups, as well as evidence from the largest study on telemedical abortion in the world which found this method of care to be 'safe, effective, and improves care', provisions were made permanent in Scotland in 2022.
Whilst Scotland led the way in some areas, in others we've fallen far behind. Perhaps most notably in sending women to England for abortion beyond 20 weeks' gestation. One woman every four days has to travel from Scotland to a BPAS clinic in England to access abortion care because no health board provides care up to the legal limit of 24 weeks' gestation – a shameful stain on our pro-choice country.
The reasons that women seek abortion after 20 weeks are complex and varied, but often involve devastating life changes, medical diagnoses, and delayed recognition of pregnancy. Yet the NHS in Scotland abandons these women, and over the years, thousands have had to make this journey despite being legally entitled to receive this care in Scotland.
In 2014, government-commissioned research into Scottish womens' experiences of travelling to England for care was published. The findings were bleak and improving solutions to access these abortions were described by researchers as a 'necessity'.
Despite warm words and countless commitments from the Scottish Government, this status-quo has gone unchanged for decades and caused untold levels of harm to the women who have had to make this journey.
In 2023 when Humza Yousaf was standing to become leader of the SNP, Back Off Scotland wrote to him asking him to make three key pledges: to implement buffer zones, to stop the practice of sending women to England for abortion care by ensuring services can be accessed within Scotland, and to decriminalise abortion. He pledged to deliver all three, but only the first has been achieved.
When Humza committed to decriminalising abortion, we seized the moment. Together with 18 pro-choice partners, such as Royal College of Obstetricians and Gynaecologists, the Faculty of Sexual and Reproductive Healthcare, Engender, and the Humanist Society Scotland, we wrote to him calling for a full review of abortion law in Scotland, with a view to modernising it in the coming years.
The government responded, and established an Expert Group in 2024. That group is now at work and is expected to deliver its findings and recommendations in the coming months.
This review will bring much needed clarity to the status of abortion law in Scotland. As abortion in Scotland is governed by common law, there is widespread confusion and uncertainty over whether a woman could be prosecuted as they have been in England.
This uncertainty was further exacerbated following the recent publication of guidance from the UK National Police Chiefs' Council (NPCC), which suggested that women experiencing pregnancy loss should have their homes and digital devices checked, as well as their medical records and reproductive tracking devices investigated to see if any laws had been broken.
Whilst there was rightly national outcry about this, it remains unclear whether the guidance applies to Scotland and whether Police Scotland would be prepared to use similar tactics to those used by English police forces who have criminalised women under abortion offences.
A review into abortion law has never been more pressing or urgent. With public backing, political will, and expert consensus behind abortion law reform, the momentum is undeniable. After last week's historic vote in Westminster, the time for Scotland to reform our outdated abortion law is now.
Lucy Grieve is Co-Founder of Back Off Scotland, and Policy and Engagement Manager at the British Pregnancy Advisory Service.