No Idle Threat: Dangerously Outdated Abortion Laws Must Go

A proposal in the U.K. Parliament would change a 19th-century criminal law that allows prosecution of people who end their own pregnancies. And in New York state, a bill moving through the legislature would remove abortion, including self-induced abortion, from the penal code.

The experiences of people seeking abortions from the U.K. to New York teach us that access to affordable clinic-based abortion is critical, but is not enough to ensure that no one goes to jail for ending their own pregnancy. Shutterstock

No one should face jail or arrest for having an abortion, especially in places where abortion is legal and generally accessible. That is exactly the scenario that politicians in the United Kingdom are trying to address by moving antiquated criminal abortion laws off the books. Legislators in the United States should follow.

Abortion is legally available in the United Kingdom, with the exception of Northern Ireland (where the procedure is only allowed when the pregnant person’s life is in danger). But even under the 1967 Abortion Act that is in effect in England, Wales, and Scotland, two doctors must agree that a woman’s continued pregnancy poses a greater risk than ending that pregnancy. Though doctors typically interpret the law liberally so that getting the signatures does not significantly delay most abortions, the law also requires that abortions much take place in a hospital or other clinical premises that have government permission to perform the procedure. That means family doctors cannot supply medication and women cannot use it at home, even when it is legally prescribed.

The result: Women who use abortion pills without doctors’ permission can face jail terms—which criminalizes patients in a way that doesn’t apply to any other health care procedure.

In March, U.K. Member of Parliament Diana Johnson introduced a bill that took the first steps toward decriminalizing abortions‎ in the first two trimesters in England and Wales. Under the proposal, abortion would be regulated in the same way as other clinical procedures and women would not face jail for inducing their own abortions.

“There is no other medical procedure in this country governed by legislation this old, this out of step with medical developments and public attitudes,” she said.

Johnson was referring to the U.K.’s 1861 Offences Against the Person Act, which she proposes amending. This law made ending one’s own pregnancy a crime punishable by life imprisonment throughout the U.K., with the same penalty applying to anyone who assists. The 1967 Act did not overturn this 1861 law; rather, it created exemptions to prosecution for women and their doctors when certain criteria were met.

But both the Offences Against the Person Act and the 1967 exemptions were drafted at a time when no one could imagine safely and effectively ending a pregnancy with pills.

Medication abortion is increasingly preferred by women in the U.K.—and in Northern Ireland, where only 16 legal abortions were performed in 2015-2016. And women are increasingly obtaining pills online. While the choice for women in Northern Ireland used to be starkly positioned between finding the funds for travel to England for abortion care or having a baby, today women can find a safe solution on the internet.

But while Irish women who have used mail-order medications from organizations such as Women on Web report relief and satisfaction with the process, they face a serious danger that’s not medical in nature: punishment by the state.

In the last two years, women have been dragged through the courts in Northern Ireland, and police in Belfast raided activists’ homes looking for pills while they attended International Women’s Day rallies in March. In Northern Ireland’s two-tiered system where abortion is punishable under criminal law, some people seek abortion care under the looming threat of jail time.

And even where the Abortion Act does apply and lawful abortion is accessible, any U.K. woman who uses abortion medication purchased online could be sent to prison for life under the same 1861 Act used against women in Northern Ireland. For women with work and child-care commitments, the fact that lawful medical abortion can require multiple appointments and that pills cannot be taken at home at the time that best suits them makes unlawful online supply attractive.

Those of us in the United States, where Roe v. Wade remains the law of the land, might wonder: How is it possible that a legally protected medical procedure can be a crime? We need look no further than New York for an answer.

New York has long been a leader in ensuring reproductive rights, liberalizing its abortion laws in 1970—three years before Roe. But, as in the U.K., change came in the form of exceptions to a criminal law. To this day, even though abortion is generally accessible in urban areas and may be covered by Medicaid, abortion remains in the state’s penal law. In fact, any attempt to end one’s own pregnancy–even if it is unsuccessful, and even if the person isn’t actually pregnant–may be prosecuted as criminal self-abortion, which can carry a sentence of up to a year in jail.

Having such an outdated law lingering on the books is no idle threat: A handful of New Yorkers believed to have ended their own pregnancies have been arrested, most recently in 2011. Even if they weren’t convicted, the women were invasively interrogated about their sexual and reproductive lives, separated from their families, and shamed in the media. These prosecutions follow the usual pattern of criminalization in the United States, falling disproportionately on women of color and low-income women who are most likely to come under scrutiny of law enforcement or social services agencies.

But, like U.K. lawmakers, New York legislators have an opportunity to make a long-overdue change to the law. Propelled by concerns about federal rollbacks of abortion rights, New York lawmakers have proposed the Reproductive Health Act (AB 1748/SB 2796), currently awaiting consideration by the state senate after having been approved by the assembly months ago. This proposal would repeal abortion and self-abortion from the penal law, finally making good on Roe’s promise of decriminalization of abortion.

The experiences of people seeking abortions from the U.K. to New York teach us that access to affordable clinic-based abortion is critical, but is not enough to ensure that no one goes to jail for ending their own pregnancy. Nowadays, people may be pushed toward self-directed care by clinic closures and unnecessary restrictions, or pulled toward it by the private and personalized experience promised by abortion with pills.

At a time when aggressive, regressive anti-abortion forces are on the rise, it is tempting to batten down the hatches, defend the gains we have made, and make the best of the laws we do have. But it is also not enough that the law insulate certain types of people with certain types of abortions from criminalization. It should not create a threat in the first place.