Independent public health consultant Kevin Duffy responds to Stella Creasy MP’s new abortion decriminalisation amendment to the Criminal Justice Bill
Just before the Easter recess, Stella Creasy MP tabled a new abortion decriminalisation amendment to the Criminal Justice Bill, NC40. This was not available to the public until Friday evening, 12 April,[1] but that did not stop Creasy stirring up noisy discussions on social media by writing about parts of it in an opinion piece in The Guardian on 08 April [2] and being interviewed by the BBC World at One on the same day.[3] She seemed to take a lot of pleasure in winding up opponents, such as Isabel Oakeshott and Neil O’Brien MP, making her cynical and sarcastic rebuttals that they didn’t know what they were talking about because they couldn’t read what had not yet been published.[4] Now that we are able to read NC40, here are a few quick comments on that and Creasy’s opinion piece.
“Still technically illegal…”
Creasy and many others campaigning for abortion decriminalisation, often lead with the claim that abortion is still technically illegal, pointing to a ‘Victorian’ law, the 1861 Offences Against the Persons Act (OAPA).
Creasy made this claim in The Guardian opinion piece: “Women in England and Wales are already denied agency over our bodies – it’s still technically illegal to have an abortion at any point in pregnancy under the 1861 Offences Against the Persons Act (OAPA).”
But, this is not correct. The legal position of abortion in England and Wales is not only set by the 1861 and 1929 Acts, which outline the crimes, but also by the 1967 Abortion Act and the 1990 Human Fertilisation and Embryology Bill, plus related regulations that, in effect, permit abortion on request up to 24-weeks of pregnancy, and for some specific medical conditions up to birth. More than 98% of all abortions are performed under Ground C,[5] and providers use this ground to ‘certify’ a requested abortion by reporting that the pregnancy is a risk to the woman’s mental health (99.9% of all Ground C abortions), even though there is no assessment or treatment for this condition;[6] our Mystery Client Investigation proved that it does not matter what reason, if any, a woman gives, the provider will tick the Ground C box and prescribe the abortion pills.[7] Whilst abortion might be described as prima facie crime, it is only so until you take into account the other laws that allow it in almost all cases; so quite the opposite of ‘technically illegal’.[8]
Such claims by Creasy et al are sadly ridiculous when we consider the continually increasing number of legal abortions provided by our NHS, currently estimated at more than 300,000 in the last year; this is not a picture of ‘denied’ nor ‘illegal’.[9]
“67 prosecutions”
Creasy leans into the oft quoted, “In the past 10 years there have been 67 prosecutions, with many more women investigated. In 2021 alone, 40 were subjected to such an invasion of their privacy.”
The ‘67’ is recognisable from official Home Office data, however as revealed by a Freedom of Information request by NationalWorld, cited in the article which Creasy links to in her opinion piece, we find that some of these abortion-related police recorded crime are investigations into women ending their own pregnancy, some may have been women causing another woman to miscarry, and perhaps as many as 30% will have been men.[10]
In 2021, Home Office data shows 20 prosecutions, so the ‘40’ stated by Creasy must include some other events that were never police recorded crimes. It is also worth noting that only a small proportion end up as Charged/Summonsed, just one from the 20 cases in 2021.[11]
NC40 – decriminalise up to 24-weeks
Creasy’s proposed amendment would remove both the provider and the woman from criminal law for any abortion up to 24-weeks. One has to ask what is the point of this, given that such abortions are already legal and provided by the NHS; in some ways this is a solution searching for a problem. Unless she and her collaborators are concerned about the rising incidence of women using telemedicine pills-by-post after the legal 9-weeks-6-days limit – women like Lena*.[12]
Lena’s case was cited by RCOG et al in their written evidence to the Criminal Justice Bill committee. In this they state Lena “was taken to hospital by ambulance owing to complications from early medical abortion medication that she was given after a medical consultation this year. She believed she was ten weeks pregnant, but it emerged she was actually at 19 weeks.” [13] Note the failure of that ‘medical consultation’ to correctly assess the gestational age. This was probably a telemedicine consultation.
Removing the threat of legal prosecution may well lead to more women deciding to mislead the abortion providers about how far their pregnancy has progressed and obtaining pills-by-post for use well after the safe and legal limit of under ten weeks. In our written evidence to the Criminal Justice Bill committee, we showed how the World Health Organisation, the Royal College of Obstetricians and Gynaecologists and the abortion drug manufacturers all consider self-managed medical abortion after 12-weeks gestational age to be unsafe [sic] [their chosen word for this].[14] Creating an environment in which it becomes legal for women to use abortion pills provided by the NHS in such an unsafe manner is a harmful policy and not something that any of us should be supporting or enabling.
Unlike Johnson, Creasy has chosen to include registered medical professionals in her proposed decriminalisation; perhaps the abortion providers working with Creasy are worried that they might not be able to always rely on a ‘good faith’ defence and are at last recognising that women are not always right, and a few might not be honest, when stating their self-assessment of gestational age of an unwanted pregnancy.[15] One might wonder if this means that BPAS et al have moved on from their 2016 “We Trust Women” campaign?
We do not need to decriminalise to rectify for this, we simply need to return to the prior mandated in-person consultations before prescribing.
NC40 – no custodial sentence after 24-weeks
Creasy tries to spin her amendment as only decriminalising up to 24-weeks, as opposed to Dame Diana Johnson’s NC1 which would apply at all gestations. The issue for Creasy is that if she stopped at 24w, then her amendment would have no impact on the women who might face future prosecution – all cases prosecuted so far have been when women have ended their pregnancies after the 24-weeks limit.[16]
But of course Creasy has not stopped at 24-weeks. Her amendment states that there should be no custodial sentence for women ending their own pregnancy at any gestation, so up to birth. She goes further by stating that no woman or provider can be prosecuted for an illegal abortion after 24w, unless the prosecution is explicitly approved by the Director of Public Prosecutions.
It might be, that in effect, these two measures would cause the police to not start an investigation, given that they would subsequently need to get explicit approval from the DPP and even then, there would be no custodial sentence. It will be interesting to hear what MPs and commentators have to say on this, if NC40 comes up for debate.
NC40 – decriminalise section 60 of OAPA
Creasy’s inclusion of section 60 is a very clear indicator of how hers is an ideology-driven agenda. She seems to be deaf to the prior rebuttal of her inclusion of s60 when her previous amendment NC2 came up for consideration at the Criminal Justice Bill committee on 25 January, 2024. At that hearing, Laura Farris, Parliamentary Under Secretary of State (Ministry of Justice and Home Office), said: “…there is the question whether the repeal of section 60 of the Offences against the Person Act is appropriate. Section 60 makes it an offence for a person to conceal the birth of a child by disposing of the child’s body after its birth…It is not generally considered to be an abortion offence and it is not limited to the abortion context. Repealing the offence could have unintended consequences.” [17]
It is notable that RCOG et al only submitted their written evidence in support of Dame Diana Johnson’s NC1, even though it would have been a very simple matter to include NC2. At the CJB committee hearing, Jess Phillips MP sought to move, speak in support of, just NC1. It is not unreasonable to conclude that Creasy’s persistent inclusion of s60 (concealment), is too extreme even for RCOG, the abortion providers, and many MPs.[18]
NC40 would mean that the DPP would have to explicitly approve a s60 prosecution and that there would never be a custodial sentence for this crime. Section 60 is at times used for prosecutions in which there is not sufficient evidence of a live birth to pursue a homicide or infanticide case; s60 focuses on the crime of disposing of the baby’s dead body in secret, to conceal the birth, and it can be used in prosecutions when it is not known if the baby died before, at, or after its birth.
There are very few s60 cases, and given what’s involved in these, it is difficult to understand why Creasy is so set on including this in her amendment. It would be so much better to acknowledge the vulnerability of these women and their difficult circumstances, and hope that investigations and prosecutions might in the end be helpful and restorative for the women. Hannah* concealed her pregnancy and birth from her family, her baby was born alive and died within a couple of hours. Hannah hid her baby’s dead body in a friend’s garden. She received a custodial sentence of 26 weeks, suspended for two years. Imogen* claimed her baby was stillborn; she left her baby’s body in a drain at her parents house, where it was not discovered for some years. She received a one year custodial sentence. Sally* hid the bodies of four of her stillborn babies in a bedroom where they were not discovered for more than ten years. Hers is a story of drug abuse and neglect of her other children. She received a two-year community sentence with supervision.[19]
What happens next?
There are now 40 proposed amendments to the Criminal Justice Bill. Sir Lindsay Hoyle, the Speaker, must choose which ones will be debated and voted on during the upcoming Report Stage in the House of Commons, expected in the next few weeks. Given that Dame Diana Johnson’s NC1 and Stella Creasy’s NC40 could not coexist, the Speaker is likely to choose just one, if either, of these for further consideration.
There is still time for you to write to your MP, asking them to vote against either/both of these two amendments.[20]
References
[1] Criminal Justice Bill publications – Parliamentary Bills – UK Parliament. (n.d.). https://bills.parliament.uk/bills/3511/publications
[2] Creasy, S. (2024, April 8). No watering-down, no new red tape: it’s time to fully decriminalise abortion in England and Wales. The Guardian. https://www.theguardian.com/commentisfree/2024/apr/08/decriminalise-abortion-in-england-and-wales-parliament-women-stella-creasy
[3] World at One – 08/04/2024 – 08/04/2024 – BBC Sounds. (n.d.). BBC. https://www.bbc.co.uk/sounds/play/m001y1xy?partner=uk.co.bbc&origin=share-mobile (from 20:15)
[4] stellacreasy on X: “A very clear denial @NeilDotObrien of allegation support ‘killing a baby the day before birth’. You are opining about something you haven’t even bothered to read. I know as I know you haven’t seen text of amendment yet. I get you want clicks, but this is your fears not fact.” / X. (2001, April 8). X (Formerly Twitter). https://twitter.com/stellacreasy/status/1777460056180580511 (and other tweets at same source)
[5] Ground C: That the pregnancy has not exceeded its 24th week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman.
[6] Abortion statistics for England and Wales: January to June 2022. (2023, August 23). GOV.UK. https://www.gov.uk/government/statistics/abortion-statistics-for-england-and-wales-january-to-june-2022/abortion-statistics-for-england-and-wales-january-to-june-2022
[7] Mystery client investigation. (2023, July 18). Percuity. https://percuity.blog/mystery-client-survey/
[8] In conversation with Dr M Neal
[9] Duffy, K. (2023, November 28). Unprecedented increase in abortion numbers. Percuity. https://percuity.blog/2023/11/25/unprecedented-increase-in-abortion-numbers/
[10] Duffy, K. (2024, February 23). Some are men. Percuity. https://percuity.blog/2024/02/23/some-are-men/
[11] Duffy, K. (2024, February 20). When abortion is a crime. Percuity. https://percuity.blog/2024/02/20/when-abortion-is-a-crime/
[12] Names with an asterisk, e.g., Lena*, are pseudonyms used by abortion campaigners, mainstream media, and some authorities when referring to a particular case.
[13] Christian Concern. (2024, March 20). BPAS case studies undermine its own campaign. https://christianconcern.com/comment/bpas-case-studies-undermine-its-own-campaign/
[14] Criminal Justice Bill (18th January 2024). Written evidence. https://publications.parliament.uk/pa/cm5804/cmpublic/CriminalJustice/memo/CJB46.htm
[15] Duffy, K. (2023, November 27). There is no ‘Good Faith’ without an in-person consultation. Percuity. https://percuity.blog/2023/11/19/there-is-no-good-faith-without-an-in-person-consultation/
[16] Duffy, K. (2024, February 29). Prosecutions for illegal abortion. Percuity. https://percuity.blog/2024/02/29/prosecutions-for-illegal-abortion/
[17] Okay, but it is one, to give the. . . (2024, January 25). TheyWorkForYou. https://www.theyworkforyou.com/pbc/2023-24/Criminal_Justice_Bill/14-0_2024-01-25a.451.1
[18] Duffy, K. (2024, March 7). Creasy’s amendment appears ‘too extreme’ for the abortion lobby. Percuity. https://percuity.blog/2024/01/19/creasys-amendment-appears-too-extreme-for-the-abortion-lobby/
[19] Milne, E. (2024). Criminal Justice responses to maternal filicide: Judging the Failed Mother. Emerald Publishing Limited.
[20] Christian Concern. (2024, February 8). Write to your MP: Abortion Decriminalisation. https://christianconcern.com/action/write-to-your-mp-abortion-decriminalisation/
Find out more about DIY abortions
