Independent health consultant Kevin Duffy analyses pro-abortion campaigners’ priorities for legal reform
In June 2023, the Royal College of Obstetricians and Gynaecologists (RCOG) published a position statement from a coalition of 33 organisations calling for reform of the abortion law in England and Wales.
The two amendments to the Criminal Justice Bill (CJB), tabled on 28 November 2023 by Dame Diana Johnson and Stella Creasy MP, are consistent with the action plans outlined in the position statement.
In an earlier post, I outlined why we think these amendments, which call for abortion decriminalisation, are the wrong solution.
The RCOG’s position statement outlines six priorities for reform, which are listed below with our responses.
1. Women must be removed from the criminal law for ending their own pregnancies.
The CJB amendments proposed by Johnson and Creasy are intended to do exactly this, to ensure that no woman faces prosecution or jail time for ending her pregnancy, at any gestation, outside the provisions for legal abortion in a healthcare setting. In our response last week, I noted that the recent prosecution of Carla Foster would not have been necessary had she attended an in-person consultation with BPAS before the abortion pills were prescribed. We think the law should stand, that women need to know boundaries exist and they should feel the threat of prosecution, though we might expect the courts to show compassion in such cases.
2. Healthcare professionals must be able to provide abortion care without the threat of criminal sanctions which do not apply to any other healthcare procedure.
Healthcare professionals must comply with all relevant laws and regulations; they should feel the threat of sanctions when considering stepping beyond these proper boundaries. As an example, when they are prescribing abortion pills-by-post, they are legally obliged to have enough evidence to justify forming a good faith opinion that a woman’s pregnancy is below the 10 week limit. The Department of Health and Social Care (DHSC) has warned doctors that failing to meet this requirement could be a criminal offence.
3. The requirement for two doctors’ signatures to authorise an abortion should be removed.
It is worth noting that last week, Dame Diana Johnson stated clearly that her proposed CJB amendment would not mean any change to the existing abortion laws and regulations, including the 24-week time limit, the requirement for two doctors’ signatures and the grounds for abortion provision. This either means that the RCOG position paper needs to be updated or, more likely, that they intend to pursue these other changes after they first win a change in the law removing women from the Offences Against the Person Act 1861 and the Infant Life (Preservation) Act 1929.
In any case, it is essential to retain the safeguard of having doctors certify that women are giving their own fully informed consent and that abortions are medically safe and compliant with all laws and regulations. Doctors should continue to be required to complete and submit the abortion notification to the Chief Medical Officer.
4. Women should be able to make their own decisions about accessing an abortion.
In practice, abortion is already available on the simple request of the woman, up to 24 weeks’ gestational age. She is not asked to reveal any intimate details that she wishes to keep private or to justify her abortion decision. We know from our Mystery Client Investigation that a woman can give any reason, or none, and the abortion provider will facilitate her request by selecting Ground C as the legal reason.
The proposed Criminal Justice Bill amendments would mean that a woman who self-manages her abortion after the legal time limit of 24 weeks would not face prosecution. However, is this what Johnson and Creasy are asking for, are they really supporting self-managed late-term abortions? Do they not recognise or not want to acknowledge the trauma that these later medical abortions inflict on women, never mind the developing baby who is now beyond the age of viability? Are they deaf to recent polling in which only 17% of the UK public are in support of abortion on demand after 24 weeks?
5. Women’s personal data should stay private.
Any personally identifiable information recorded on the medical notes already remains confidential, and rightly so. BPAS states one of the reasons why it needs to share either the woman’s NHS number or some of her personal data with the NHS is to “identify NHS funding and process the payment for services”.
Is this position paper suggesting that providers should not be required to submit identity and demographic information on the abortion notifications that they must send to the Chief Medical Officer?
From the 85 calls we made during our Mystery Client Investigation, we know that the abortion providers do not insist on women giving their NHS numbers. The RCOG and its co-signers on this position paper want abortion to be regulated as healthcare, in the same way as any other medical procedure. If this is the case, they should include the NHS number as they would do for any other medical procedure. Doing so would enable anonymised, comprehensive longitudinal studies into the long-term impact of abortion on women’s health; or is that something that these activists are trying to avoid?
6. NHS-funded abortion care must be supported by adequate funding and resourcing.
99% of all abortions in England and Wales are funded by the NHS.
BPAS, the largest private provider and a co-signatory on this position statement, now manages 95% of all its abortion clients by telephone only. Recent analysis showed that the average fee paid to it by the NHS was higher in 2022 than in 2018, even though there is little doubt that its operating costs are now significantly lower than before the move to pills-by-post.
Many of these contracts come up for renewal in 2024, presenting an opportunity for those managing procurement for the ICSs (integrated care systems) to ensure that future fees reflect the lower cost of providing telemedicine abortion.
These reforms do not stand up to scrutiny
Those who have signed this position paper are working together. They share strategic plans and have agreed tactics that include private members bills, amendments to government bills, parliamentary questions and legal challenges. In similar fashion, we must take every opportunity to lobby and work with MPs and Peers to strengthen the abortion laws and regulations, ensuring better care for women and their developing babies.
These reform priorities do not stand up to basic critical scrutiny. They will not help women – they will harm women. Women deserve better from the co-signatories, the Royal Colleges and national organisations that were established to serve and protect women.
