MPs to discuss reform of UK's Victorian-era abortion law

Under an act passed in 1861, women using pills at home to terminate an unplanned pregnancy can still be jailed for life in much of the UK

Woman taking a pill
According to the 1861 act, if a woman orders pills online and takes them without the consent of two doctors, she can be jailed. Photograph: Alamy

In years to come, it may be regarded as one of the last battles for women’s autonomy. Under an obscure Victorian law, passed when women did not even have the vote, the decision to terminate an unplanned pregnancy using pills in the privacy of a home is punishable by life in prison – for the woman and any doctor who helps her.

Now MPs are to discuss for the first time de-criminalising women who attempt to bring about their own abortion.

In modern-day Britain, most abortions take place before 12 weeks with the aid of pills. Yet if a woman orders those pills online and takes them without the consent of two doctors, she can be jailed. So can a doctor who gives them to her to take at home instead of in the clinic.

Diana Johnson, MP for Hull North, will introduce a ten-minute-rule bill in the House of Commons on Monday calling for the scrapping of section 58 and 59 of the Offences Against the Person Act 1861, which make abortion a criminal offence.

“Women buying the pills on the internet to bring about a miscarriage are committing a criminal act which is punishable by life imprisonment,” she said. “Parliament should consider whether that is appropriate.”

Over 200 law professors and legal experts have signed a letter to the Guardian in support of Johnson’s bill. “Abortion is currently an offence in English law by virtue of an archaic and punitive statute passed at the midpoint of the reign of Queen Victoria,” they write. The penalty of life imprisonment “is the harshest penalty for abortion imposed anywhere in Europe”.

The 1861 criminal law also fails to acknowledge any difference between late abortion and an early abortion before 12 weeks when the foetus is not viable.

“Many countries in Europe recognise that a woman has the right to end an early pregnancy,” they write. “In our view, the onus is now on those who wish to retain the threat of prosecuting women to explain why this offers a justifiable part of our response to the problem of unwanted pregnancy.”

Professor Sally Sheldon from Kent University, who coordinated the letter, said the law was wrong in principle. “Why do we want to keep the framework and the criminal prohibition? I don’t hear people saying it is a good idea to be able to send women to prison for life for having an abortion outside of medical control.”

The Victorian law underlies the 1967 Act introduced by Liberal MP David Steel to end the deaths of women after backstreet abortions. It made exceptions to the 1861 criminal offence where two doctors certified it was in the interests of a woman’s health to have an abortion, which must take place on registered medical premises.

That was seen as liberal at the time, but is restrictive today, say critics, when early abortion, before 12 weeks, can be accomplished by taking two types of pill, up to two days apart. Women who suffer a partial miscarriage are given the same pills to take home to complete the process. Women having an abortion must take them in front of a doctor.

“Women will take the [second dose of] pills and try to rush home before the miscarriage begins,” said Sheldon. “If the woman has got a long journey, it is horrible for her.”

Research by Dr Ellie Lee, director of the Centre for Parenting Culture Studies at Kent University, and colleagues into the concerns of 14 doctors who provide abortion shows that some feel the law prevents them doing a safe and professional job. “It’s extraordinary that you can subject women to travelling mid-abortion [after they have taken both drugs used to induce miscarriage],” said one.

In Northern Ireland, which did not pass the 1967 act, women have been prosecuted for obtaining abortion pills online and using them. Last year a 21-year-old woman was given a suspended sentence after she pleaded guilty to procuring her own abortion by using a poison, and of supplying a poison with intent to procure a miscarriage – two offences under the Victorian legislation.

If the 1861 act was repealed, the 1967 act which amends it would also fall, but abortion could be better regulated in the health rather than criminal sphere, by medical bodies such as the General Medical Council or royal colleges, says Johnson.

“I do think the time has come 50 years on from the 1967 act to at least look at the criminal offence of abortion and do something about it. Decriminalisation is not the same as deregulation,” said Johnson.

Ann Furedi, Bpas chief executive, called the law “offensive and absurd”.

The 19th century law

Section 58, Offences Against the Person Act, 1861.

Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison... or unlawfully use any instrument... shall be liable ... to be kept in penal servitude for life.

The law in England, Wales and Northern Ireland governing abortion is based on the law dating back to the middle years of the Victorian era. Scotland was more liberal at that time. Common law made abortion a criminal offence unless performed for “reputable medical reasons”, which effectively meant few prosecutions.

This 1861 criminal law is the foundation stone still of the abortion regulation in England, Wales and Northern Ireland. In 1929, the Infant Life (Preservation) Act was passed creating a further criminal offence of the deliberate destruction of a child capable of being born alive.

The 1967 act was a response to the deaths of women as a result of backstreet abortions. It made abortion legal up to 28 weeks’ gestation if it was carried out by a doctor, with the written agreement of a second doctor, on registered premises. The upper limit was reduced to 24 weeks in 1990. The 1967 act was not passed in Northern Ireland, where abortion is now a devolved issue, as in Scotland.