Black and white picture of Dr Lynsey Mitchell standing in a street. Lynsey is wearing a leather jacket and looking at the camera and smiling.

Decriminalising abortion in Scotland: future-proofing Scots law

Dr Lynsey Mitchell, lecturer in law, University of Strathclyde

May 21, 2024

On the day Engender publishes a new report calling for decriminalisation of abortion, law lecturer Dr Lynsey Mitchell explores the history of abortion law in Scotland in a guest article for our news blog.

The US Supreme Court’s decision to overturn Roe v Wade sent shock waves throughout the world. The decision focused attention on reproductive rights globally and the UK has been no exception. The World Health Organisation (WHO) describes abortion as routine healthcare and calls on on all states around the world to decriminalise abortion. The WHO cites evidence that in states where there are criminal sanctions against abortion, access to abortion is difficult and that this negatively effects women’s health.

Abortion law in England and Wales

In the UK, David Steel’s determination to see the legal provision of safe abortion resulted in the Abortion Act 1967. At the time, this was considered world-leading and progressive legislation. However, it was never extended to Northern Ireland. This decision left the country with a Victorian-era legal framework on abortion until 2019. The legislation did apply to England, Wales and Scotland. Yet, despite public perception that it decriminalised abortion, this was not the case. It simply created a set of circumstances that, if followed, would exempt those seeking abortion and those providing abortion from prosecution. The underlying criminal law remains in force.

The Offences Against the Person Act 1861 criminalises anyone who uses instruments or administers ‘poisons’ to a woman with the intent to cause her to miscarry. Anyone found guilty is liable to ‘be kept in penal servitude for life’.

Dr Lynsey Mitchell

In England and Wales abortion is directly criminalised by section 58, section 59, and section 60 of the Offences Against the Person Act 1861. Section 58 criminalises any woman who procures her own abortion. It also criminalises anyone who uses instruments or administers “poisons” to a woman with the intent to cause her to miscarry. Anyone found guilty is liable to “be kept in penal servitude for life.” Section 59 states that anyone who supplies or procures poisons or instruments to be used to “procure the miscarriage of any woman” is also guilty of a crime.

Historically, both women seeking abortion and those providing them were prosecuted under this law. Since 1967, prosecutions under this legislation have been relatively rare. However, several women have been prosecuted recently in England for procuring their own abortions. One of these women was originally sentenced to twenty-eight months in prison. This has drawn media attention to the fact that abortion remains a crime in England and Wales. Several supportive MPs have stated their wish to revise the law. The easiest way to do this would be to repeal or amend the relevant sections of the Offences Against the Persons Act 1861. However, this would have no effect in Scotland.  

Abortion law in Scotland

There is no specific piece of legislation that criminalises abortion in Scotland. Instead, like many crimes, abortion is criminalised by the “common law.” The common law is a historical but evolving body of law that is interpreted by the courts and clarified by their judgments. Prior to 1967, there was a steady stream of prosecutions for the crime of procuring an abortion. These prosecutions were predominantly against the abortionists, and enforced where women had died or become seriously unwell after the procedure.

The High Court in Edinburgh, a large, neoclassical stone building with columns on its front facade.
High COUrt, Edinburgh

This raises questions as to what the current criminal law on abortion in Scotland actually is. Is it guaranteed that no woman, pregnant person, or clinician would ever be prosecuted?

Dr Lynsey Mitchell

Some doctors in Scotland prior to 1967 were certainly performing “therapeutic abortions” which did not attract the attention of the authorities. This suggests that Scotland has a much more lenient approach to the crime of abortion than England and has only ever sought to prosecute those providing unsafe abortions. However, medical advancements mean that modern abortion procedures are radically different from historic versions of the procedure. Thus, it can be difficult to clarify whether certain activities today, such as the private provision of abortion pills online, might fall foul of the law.

This raises questions as to what the current criminal law on abortion in Scotland actually is. Is it guaranteed that no woman, pregnant person, or clinician would ever be prosecuted? While Scotland certainly has employed a more lenient and progressive approach to women and pregnant people who procure their own abortions, the common law is always evolving and subject to interpretation by judges. While prosecution of women and pregnant people seems unlikely, it is not something that can be guaranteed.

The simplest way to protect those seeking abortions, and those providing them, from prosecution would be to legislate to make clear that abortion is not a crime.

Dr Lynsey Mitchell

What needs to change?

The simplest way to protect those seeking abortions, and those providing them, from prosecution would be to legislate to make clear that abortion is not a crime. This would then allow for a move away from the strict framework of the 1967 Act, which requires all abortions be signed off by two doctors. This is something which the World Health Organisation has suggested is unnecessary.

Additionally, international norms and conventions are always evolving. There is now a greater focus on reproductive rights as human rights. Several international organisations situate abortion within the human rights framework. To future-proof Scots law from human rights challenges, clarification and reform of the criminal law on abortion is necessary and long overdue.

Body image: Wikipedia/Creative Commons

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