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The Herald Scotland
29-06-2025
- Politics
- The Herald Scotland
From 19th century to present day: Abortion laws in Scotland
Put forward by Labour MP Tonia Antoniazzi, the NC One amendment seeks to remove women from long-standing legislation the Offences Against the Person Act 1861 and the Infant Life (Preservation) Act 1929 in relation to their own pregnancies, which criminalise abortion. This will become law if the provision remains unamended by the Lords during its forthcoming scrutiny of the bill. Some Scottish Labour MPs, including Katrina Murray who spoke to The Herald about her plea to the Scottish Government this weekend, have been calling for Scotland to follow suit. But should they and, fundamentally, can they? Before we answer that, let's take a look at the situation down South. Situation down South In England and Wales, the Offences Against the Person Act of 1861 criminalises anyone who uses instruments or administers 'poisons' to a woman with intent to cause her to miscarry. Section 58 and 59 of this act renders a woman who acts to end her own pregnancy or anyone who facilitates a woman obtaining an abortion criminally culpable. Section 60, has the bespoke offence of concealing a pregnancy. Under this, if the prosecution are able to show that you were pregnant and either a dead child has shown up that can be linked to you or there is no child despite the fact you were pregnant that can be criminal. This legislation does not cover Scotland, as specifically stated in section 78 of the act itself. Read more: Lucy Grieve: Scotland Must Press On With Abortion Law Reform Abortion Laws in Scotland So what is the situation in Scotland? Legal academic at Strathclyde University, Dr Jonathan Brown told The Herald the laws around abortion in Scotland are 'radically different' to those in England and Wales. 'The Scottish laws relating to abortion has almost nothing in common with the law relating to abortion in the rest of the UK, including Northern Ireland,' he said. Instead, abortion is criminalised by Common Law, however, there remains widespread confusion and uncertainty over whether a woman could be prosecuted as they have been in England. Under this, while prosecution of women and pregnant people seems unlikely, legal academic Dr Lynsey Mitchel argues that 'it is not something that can be guaranteed.' Another piece of abortion legislation covering Scotland is the UK Abortion Act passed in 1967 which excludes Northern Ireland. In section 5 of this act, it states that 'anything done with intent to procure a woman's miscarriage' is unlawfully done (unless authorised by section one of the act). Under this law, all abortions still require two doctors' signatures, and women must meet specific legal criteria to qualify for an abortion which essentially means that not wanting to be pregnant is not a valid reason to have an abortion. There's also the much older Concealment of Birth Scotland Act of 1809. Dr Brown explained: "What it does is essentially give rise to an evidentiary presumption that a woman has killed her own child that was born alive if she concealed her pregnancy. 'The prosecution don't need to prove the baby was born because it is designed to cover cases where a woman can be shown to have been pregnant and no child has appeared at all. "So it's got that latent flexibility in it that means that the prosecution don't need to prove the child was born alive. It then puts the burden on the woman to prove that she either aborted or gave birth to a still born child." This was the main piece of legislation used in Scotland to prosecute women for abortions or a long time, the academic tells The Herald. 'In the 19th century, that's the statute being used to prosecute women until the amount of women prosecuted for this drops off in the 20th century,' he said. Dr Brown said the 1809 act is a 'problematic' and 'discriminatory' piece of legislation which he said needs to see reform. He explained: 'What it does is essentially give rise to an evidentiary presumption that a woman has killed her own child that was born alive if she concealed her pregnancy. 'The prosecution don't need to prove the baby was born because it is designed to cover cases where a woman can be shown to have been pregnant and no child has appeared at all so it's got that latent flexibility in it that means that the prosecution don't need to prove the child was born alive. "It then puts the burden on the woman to prove that she either aborted or gave birth to a still born child. 'For all that this is openly discriminatory and quite harsh, it is actually a piece of legislation that is brought in for reasons of mercy because before 1809, it was act the mothering of children that applied here which meant that if you were convicted under these circumstances you were guilty of the crime of murder, a capital crime at the time.' Under the 1809 act, the maximum sentence for concealing abortion is two years. Between 1922 and present day, The Herald understands five women have been prosecuted under this 1809 statute in Scotland. There has been one 21st century case involving a woman in respect of her own child. Any other abortion case has involved abortion providers. Out of all these cases, no woman was acquitted. 'If it's brought in, it tends to be a conviction or a plea,' said Dr Brown, who has scoured the archives on these cases. He added: 'In England and Wales…there has been an uptick in the number of prosecutions brought, there hasn't been anything like that in Scotland.', he said. How does this fit in with the legal limit of 24 weeks? Across the UK, the legal limit for an abortion is 24 weeks into the gestation period. Dr Brown stressed that when considering illegality beyond this time period in the 1967 act, it is looking specifically at medical professionals. 'When it is talking about criminality in the context of the act, it is talking about the criminality of doctors who don't comply with what is expected of them. It doesn't criminalise woman.' he stressed. 'One of our institutional writers, David Shum, stated the foetus in Scots law is nothing more than part of the mother's body and self-harm is not criminal and, if the foetus is a part of the self, the woman acting to harm it is not criminally culpable.' Although a woman who procures drugs illegally to end her pregnancy may not be guilty of the crime around abortion laws, she may be guilty of another crime such as possession of a controlled substances under the Misuse of Drugs Act. 'The only way I can see a women being prosecuted [in Scotland for abortion] is if a woman gets pregnant, doesn't tell anyone at all that she is in fact pregnant and then having secreted the fact of her pregnancy from absolutely everyone, does something at a sufficient at a sufficiently late stage of the pregnancy in a circumstance that leaves evidence of a child that could have been born alive. 'In that circumstance, the 1809 act could be applied.' What action is the Scottish Government taking? The Scottish Government has set up an expert group to review the law on abortion and advise on whether it should be changed. The Herald understands proposals from the group are expected to be published in late August or early September.
The Herald Scotland
29-06-2025
- Politics
- The Herald Scotland
Tampering with abortion law could make things worse
However, a legal academic has told The Herald he is concerned changes to the law may risk making the situation worse for women the legislation could affect. Read more: From 19th century to present day: Abortion laws in Scotland Why Scotland must press on with abortion law reform Last week, MPs voted for an amendment to the Crime and Policing bill in the House of Commons on Tuesday. Put forward by Labour MP Tonia Antoniazzi, the NC One amendment seeks to remove women from long-standing legislation the Offences Against the Person Act 1861 and the Infant Life (Preservation) Act 1929 in relation to their own pregnancies, which criminalise abortion. This will become law if the provision remains unamended by the Lords during its forthcoming scrutiny of the bill. However, this does not include Scotland as abortion law is devolved. In England and Wales, the Offences Against the Person Act of 1861 criminalises anyone who uses instruments or administers 'poisons' to a woman with intent to cause her to miscarry. In Scotland, abortion is governed under Common Law, however, there remains widespread confusion and uncertainty over whether a woman could be prosecuted as they have been in England. Under common law, while prosecution of women and pregnant people seems unlikely, legal academic Dr Lynsey Mitchel argues that 'it is not something that can be guaranteed.' As a result, the Scottish Labour MP, alongside other Scottish Labour MPs including Lillian Jones and Joani Reid, is pushing for change north of the border. Ms Murray told The Herald: 'There is a presumption that abortion is not a criminal offence in Scotland. It still is, it's just a different piece of legislation. It is still there within common law. 'It is something that can't be forgotten about. There is a time limit on this government of May next year and the legislative time that is there is running down.' The MP said she was pleased the amendment was voted through by MPs last week down South. 'Whilst it affects a really small number of women, it is really fundamental to their lives. Families have been completely destroyed as a result of having to go through a criminal justice system,' Ms Murray said. However, for Strathclyde University legal academic Jonathan Brown, the concern is that "tampering" with such legislation through pursuing a route of decriminalisation could negatively impact women here. Dr Brown told The Herald: 'There's a lot of well-meaning people talking about decriminalisation but they don't really know what the law in Scotland is and they are actually liable to make things worse if they go tampering with it.' He said the UK Abortion Act passed in 1967 provides a 'prime example' that the laws around abortion in Scotland should not be changed. The academic pointed out that before 1967, only one doctor was required to authorise the termination of a pregnancy but following the act that year, there is now a requirement of two doctors. 'What you've got if you start tampering with the law is a real possibility that you make things worse. It's happened before and it's likely to happen again,' he said. However, he did say legislation such as the Concealment of Birth Scotland Act 1809 should be abolished. Between 1922 and present day, The Herald understands five women have been prosecuted under this 1809 statute in Scotland. 'The 1809 Act is problematic." Dr Brown said, "It's created situations in which the woman is convicted on the same evidence that sees the provider acquitted. 'If you abolish it, what happens is it no longer makes a carve out in cases of murder which sees women being prosecuted and convicted on the basis of less evidence." Asked what he would say to anyone calling for decriminalisation in Scotland, Dr Brown urged them to consider other reforms. 'This a good opportunity to explore the possibility of repealing the 1809 act as we need to be clear that the law relating to abortion in Scotland is completely unlike the law in the rest of the UK," he said, "You can't assume that what works for another part of the UK will work for Scotland." Asked what she wants to see in Scotland, Ms Murray told The Herald: 'I want to get to a stage where we get consistency in the law in all four countries of the UK. "We've now potentially got decriminalisation in England and Wales. We need Scottish law to catch up. 'It needs to happen before the Scottish Parliament elections in 2026.' Given the time it takes for legislation to be passed, the Scottish Labour MP admitted the the ability to do this would be difficult. Ms Murray said: 'It's recess now and it's not back till the beginning of September so this is absolutely something we need to get a move on with.' The Labour MP said another major concern for her is that some women are forced to travel from Scotland to England to receive an abortion. One woman every four days has to make the journey to access abortion care because no health board north of the border provides care up to the legal limit of 24 weeks' gestation. "This is provision needs to be there," Ms Murray said, "There is now a life-threatening concern." For BPAS, decriminalisation of abortion should form a part of wider reform of abortion laws in Scotland. 'I feel like it would be in everyone's interest to have clarity that you can't prosecute women or doctors under Common Law,' said Rachael Clarke, head of advocacy for BPAS. Ms Clarke agrees with the legal academic Dr Brown that the 1809 act is an issue but she says the bigger issues in Scotland are around provision of and access to abortion services. In Scotland, you can only have a termination after 20 weeks in cases where there is either a foetal abnormality or the woman's life is at risk. 'In Scotland what we really need is abortion law reform because the care that can be provided to women is in line with the 1967 act, it's not in line with international best practice and it limits the kind of care that women can get and as a result we need change. 'Off the back of what's happening in England and Wales, this is an impetus for reform not for doing exactly the same thing in Scotland.' The Scottish Government has set up an expert group to review the law on abortion and advise on whether it should be changed. The Herald understands proposals from the group are expected to be published in late August or early September.
Elle
11-06-2025
- Politics
- Elle
The UK Government Will Vote On Decriminalising Abortion This Week — Here's Everything You Need To Know
Next Tuesday, on June 17, MPs will get a free vote on whether to decriminalise current abortion laws in England and Wales. While it is a commonly-held belief that abortion is legal in the UK, the reality is that it isn't. Abortion is still technically illegal due to a piece of Victorian legislation, the Offences Against the Person Act of 1861, and is only widely available due to exceptions laid out in a 1967 amendment. FIND OUT MORE ON ELLE COLLECTIVE Next Tuesday's vote asks that abortion be taken entirely out of criminal law, which will hopefully enshrine women's reproductive rights more within law, making it harder for future governments to pass laws that may impede them. The campaign in question encourages constituents to email their local MPs (an email template for which can be found here) before Sunday, June 11. The Parliamentary vote comes at a prescient time for women's reproductive rights. In the past three years alone, in England, six women have appeared in court charged with ending or attempting to end their own pregnancy, outside of the terms of the 1967 Abortion Act. Last month, Nicola Packer was cleared by a jury of 'unlawfully administering' herself with abortion pills at home during a coronavirus lockdown in 2020. Packer had taken prescribed abortion medicine when she was around 26 weeks pregnant, beyond the legal limit of 10 weeks for taking such medication at home. She told jurors she did not realise she had been pregnant for more than 10 weeks. A petition urging the government at Westminster to 'remove abortion from criminal law so that no pregnant person can be criminalised for procuring their own abortion' gathered more than 103,653 signatures. The issue of decriminalising abortion was then debated in Parliament on June 2, 2025. ELLE Collective is a new community of fashion, beauty and culture lovers. For access to exclusive content, events, inspiring advice from our Editors and industry experts, as well the opportunity to meet designers, thought-leaders and stylists, become a member today HERE. Naomi May is a freelance writer and editor with an emphasis on popular culture, lifestyle and politics. After graduating with a First Class Honours from City University's prestigious Journalism course, Naomi joined the Evening Standard as its Fashion and Beauty Writer, working across both the newspaper and website. She is now the Acting News Editor at ELLE UK and has written features for the likes of The Guardian, Vogue, Vice and Refinery29, among many others.
New European
16-05-2025
- Politics
- New European
It's time to decriminalise abortion
Said offences, for which women can still be prosecuted, mostly derive from the Offences Against the Person Act of 1861, and the Infant Life (Preservation) Act of 1929. Though it is, in practice, legal to get an abortion during the first 24 weeks of a pregnancy – and afterwards in some very specific circumstances – the legislation has, until now, essentially acted as a series of loopholes, as opposed to a thorough rewriting of the law. It is, if anything, remarkable that it hasn't happened yet. Labour MP Tonia Antoniazzi should be applauded for her amendment to the crime and policing bill, of course, but it feels incredible that it is needed at all. If it passes, it will remove 'women from the criminal law related to abortion', and would mean 'no offence is committed by a woman acting in relation to her own pregnancy'. Antoniazzi's amendment seeks to change that, and currently has the backing of over 50 MPs, from Liberal Democrat Christine Jardine and the Greens' Carla Denyer, to Conservative Caroline Dinenage, the SDLP's Claire Hanna and Llinos Medi from Plaid Cymru. Also in favour of the legal change are – deep breath – the British Medical Association, the Royal College of Obstetricians and Gynaecologists, the Royal College of Midwives, the Royal College of Nursing, and the Royal College of General Practitioners. In short: it ought to be a slam dunk. It's also not the first time the Commons has been set to vote on the topic, as Labour MP Diana Johnson had put forward a similar amendment under the last Conservative government, but the general election was called before the criminal justice bill could go through Parliament. Though the government is yet to give its formal backing to the changes, it is hoped that ministers will do so. Keir Starmer has, so far, not exactly excelled in the realm of socially liberal issues, and ensuring that women are no longer criminalised for what happens inside their bodies would be a step in the right direction. Read more: Europe is fighting its own abortion battle As Antoniazzi has said, 'there is simply no world in which prosecuting a vulnerable woman who may have experienced a medical complication, miscarriage or stillbirth is the right course of action'. It also seems worth saying that, given both the global context and the way various parties are currently polling, now feels like the right time to enshrine women's rights in law, with little room for tweaking or backtracking. Americans thought that Roe v Wade had become untouchable, but clearly it wasn't. We in Britain would struggle to think of a world in which abortion would get criminalised again, but we should still prepare for a world in which it is a possibility. Govern for the times you're in, not the ones you wish you could be having, and all that. On a lighter note, there is something quite comforting about this amendment, which has so far been hiding in plain sight. Over 50 MPs have backed it, most of them women, and they're from every corner of the political spectrum. Perhaps most importantly, many of them were also at war with each other until recently. Antoniazzi is a prominent gender critical campaigner; Nadia Whittome, a fellow Labour MP, is one of Parliament's most outspoken campaigners on transgender rights. Many of the parliamentarians now agitating for the same thing were, and probably will be again at some point, on opposite sides of the gender debate. That they are now able to work together on such an important feminist issue should feel like encouraging news. Liberation movements have, after all, often had to become broad coalitions of people who otherwise disagreed on most things to be effective. It was sometimes feared that the rise of social media, algorithms and echo chambers would put an end to such large tents. It is a tremendous relief to see that it hasn't happened and, when the circumstances demand it, all these people can still work together. All that is needed now is for the government to remember that it ought to, once in a while, act as the progressive party it professes to be. Politics currently feels like the place where good news goes to die, and wouldn't it be nice for that to no longer be the case, even for one day?
The National
01-05-2025
- Health
- The National
Call for abortion to be decriminalised in Scotland
It comes as Westminster is set to consider decriminalising abortion in England Wales this summer, according to reports. Politico has reported that two backbench Labour MPs – Tonia Antoniazzi and Stella Creasy – are drawing up separate proposals to change the law which would be brought before MPs in the coming months. Abortion currently remains technically illegal under the Offences Against the Person Act of 1861 in England, Scotland and Wales. READ MORE: Hotel on Scotland's NC500 with 'stunning views' put up for sale The Abortion Act of 1967 ensured people could get a termination but only under certain circumstances. The process requires the approval of two doctors and any termination beyond 24 weeks of a pregnancy is considered to be illegal and women can be prosecuted. Campaigners believe the legislation is out-of-date and needs to be changed to remove any form of criminality from those seeking a termination. This includes Scottish Greens MSP Gillian Mackay (below), who recently introduced legislation that introduced buffer zones outside abortion clinics, and has called on the Scottish Government to act on this issue too. (Image: PA) Under Section 53 of the Scotland Act 2016, abortion law was devolved to Scotland, but hasn't changed since. 'We [The Scottish Greens] support the decriminalisation of abortion. It is long overdue, and it is regrettable that it has taken so long to get to this point,' she told The National. 'It was raised with me a lot when I was introducing my Safe Access Zones Act to curb anti-choice protests and it is something we need to see action on in Scotland alongside reform to remove the 'two doctor rule.'' She added: 'I hope that these proposals by Labour in Westminster will lead to a similar discussion and progress here in Scotland. Abortion care is healthcare. Nobody should be criminalised for trying to receive vital medical attention.'
