Abortion in the USA
The Supreme Court decided on 24 June to overturn (by six votes to three) the 1973 decision in Roe vs Wade which had held that the Constitution generally protects a pregnant woman’s liberty to have an abortion. The Court has now ruled that the Constitution ‘does not confer the right to an abortion’ and that the authority to regulate abortion is ‘returned to the people and their elected representatives’, paving the way for individual states to heavily restrict or even ban the procedure. In total, 26 states are certain or likely to ban abortions and the procedure could eventually be banned in half of American states. This decision puts these states in the company of nations like Afghanistan, Angola and Iraq where terminations are illegal. This is despite the fact that 85 per cent of Americans think abortion rights should be legal in all or some circumstances. The majority opinion was written by Justice Samuel Alito who wrote ‘the inescapable conclusion is that a right to abortion is not deeply rooted in the nation’s history and tradition.’ In their dissenting opinion, the three justices referred to the decision as a ‘curtailment of women’s rights and of their status as free and equal citizens’.
There may be worse to come as Justice Clarence Thomas urged his fellow Supreme Court judges to ‘correct the error’ of three other earlier Supreme Court decisions. In Griswold vs Connecticut, the Court ruled in 1965 that the Constitution protects the liberty of married couples to buy and use contraceptives without government restrictions; in Lawrence vs Texas, the Court ruled in 2003 that the punishment for sodomy was unconstitutional; and in Obergefell vs Hodges, the Court ruled in 2015 that the fundamental right to marry is guaranteed to same-sex couples. All of these rights could, potentially, be overturned.
Abortion in England and Wales
Under the Offences against the Person Act 1861 it is still a criminal offence to have an abortion in England and Wales. Section 58 relates to administering drugs or using instruments to procure an abortion and section 59 relates to procuring drugs or instruments to cause an abortion. The 1967 Abortion Act did not repeal this legislation but provided instead a legal defence against criminalisation if an abortion meets the terms of this Act. It means that terminations are legal up to 24 weeks in most circumstances, but only with the permission of two doctors.
On 28 June the MP Stella Creasey said that she would table an amendment to the forthcoming British Bill of Rights to give every UK woman the fundamental right to have an abortion, but the Justice Secretary Dominic Raab rejected her bid on the basis that the matter of abortion was already settled in UK law. Stella Creasy tweeted afterwards: ‘Why is the Bill of Rights good enough to protect your freedom of speech but not your womb from being interfered with?’
According to the British Pregnancy Advisory Service (BPAS), because abortion is still a criminal offence under the 1861 Act, politicians have the ability at any time to impose restrictions on women’s access to it. As the law stands, any woman who ends her pregnancy without the permission of two doctors can face up to life imprisonment. BPAS fear that anti-abortion groups that protest outside clinics may feel emboldened by the Supreme Court decision, and have asked for 100-metre buffer zones outside UK clinics to protect service users. To achieve this, a local authority must use a Public Spaces Protection Order (PSPO). BPAS say in the past three years 50 clinics have been targeted by anti-abortion groups and only three have succeeded in getting PSPOs in place. However, with cross-party support, an amendment to the Public Order Bill has been tabled to stop harassment at abortion clinics by introducing protest-free areas.
Abortion in Northern Ireland
Abortion was decriminalised in Northern Ireland in 2019 via UK Government regulations when the power sharing agreement broke down in the Northern Ireland Assembly and despite strong public opposition. Since then, the DUP and Sinn Fein have argued over abortion itself and the legitimacy of Westminster’s actions, and no agreement has been reached on commissioning and funding abortion and post abortion care in Northern Ireland. With no government health services available, women and girls wanting abortions rely on a few charities for help and advice. One such group – Stanton Healthcare Belfast – claims to offer advice but is actually part of an American pro-life Christian organisation. Women in Northern Ireland still have to travel to England if they are over 10 weeks pregnant.
Westminster once more forced the issue when Stormont was not sitting, breaking the deadlock but trampling on the devolution settlement. The Abortion (Northern Ireland) Regulations 2022 were subsequently laid on 19 May 2022. They place an obligation on the Northern Ireland Department of Health and the strongly anti-abortion Northern Ireland Health Minister, Robin Swann, to commission and fund abortion services, irrespective of whether the service provision has been discussed, or approved, by the Northern Ireland Executive Committee. The regulations also give the Northern Ireland Secretary, Brandon Lewis, the power to intervene directly in the matter to ensure that services are implemented.
Abortion in Scotland
Abortion in Scotland is regulated by the 1967 Abortion Act mentioned above. Prior to this date abortion was not a criminal offence although if harm was caused to the woman by an abortion certain offences could come into play. There is currently discussion in the Scottish Parliament to introduce a Bill to allow 150-metre exclusion zones around clinics.
Stanton Healthcare East of Scotland, part of Stanton Healthcare group mentioned earlier, which believes that life is created at conception, is due to open shortly in Edinburgh. Their spokesperson is reported as saying that ‘A key cause of abortion in Scotland is poverty…it means that women are being forced into abortions in Scotland by economic circumstances.’ It has been granted charitable status but the Scottish regulator has said that action will be taken if the charity’s duties are not being met.