Decriminalising Abortion: Challenges for Scotland
By Jonathan Brown - Posted 5 July 2022
The US Supreme Court decision in Dobbs v Jackson has resonated beyond the shores of the United States and has intensified calls to ‘decriminalise abortion’ from some quarters in Scotland. These calls are, in a sense, understandable; infamously, the Abortion Act 1967 – which applies in Scotland, as in England and Wales – does not confer upon women any ‘right to abortion’, nor any ‘right to bodily autonomy’, but rather confers a privilege upon qualified medical practitioners who carry out termination procedures (in defined circumstances). Yet unlike in England and Wales, wherein the ‘law relating to abortion’ remains governed by the Offences Against the Person Act 1861 and Infant Life Preservation Act 1929, which together expressly criminalise women who seek and attempt to terminate their own pregnancy (s.58 1861 Act; s.1 1929 Act), the Scottish ‘law relating to abortion’ is not governed by statute. Rather, the provision of an abortion, without medical sanction, is a crime at common law (albeit one treated as ‘innominate’ by Alison: Principles of Criminal Law, at 628). Long before the passing of the 1967 Act, in Scotland, ‘therapeutic abortion’ was regarded as lawful and women who sought termination even from ‘back-alley’ providers were not expressly criminalised. In view of this, it is thought that there must be some reflection on exactly what ‘decriminalisation’ of abortion would entail given the peculiarities of Scots law in this area.
The Abortion Act 1967 – One Act, Two Laws
As the present author discussed in an article of 2015, in view of the Scottish common law position the 1967 Act either failed to change the law of Scotland (since therapeutic termination was already lawful) or must be read as having restricted the ‘law relating to abortion’ in this jurisdiction. Prior to the passing of the Act, it was clear that a single medical practitioner could authorise a termination – at whatever point in the pregnancy – on the basis of their own medical judgement, provided that they acted in good faith. By introducing a two-physician requirement in 1967, and thereafter expressly extending a 24-week time limit to the legislation through an amendment via the Human Fertilisation and Embryology Act 1990, Parliament ostensibly imposed legal restrictions on the availability of abortion in Scotland which had not, hitherto, been present. Hence, though abortion law in the archipelago of Great Britain would appear to be governed by a single Act, the letter of ‘the law relating to abortion’ – as Professor Norrie pointed out in 1985 – differs drastically depending on whether one stands in Scotland or in England and Wales. In England and Wales, the phrase means ‘sections 58 and 59 of the Offences against the Person Act 1861’, which by virtue of s.78 of that Act does not apply to Scotland. In Scotland, tautologically, ‘the law relating to abortion’ simply means ‘any rule of law relating to the procurement of abortion’ (see s.6, 1967 Act).
Yet although the letter of the law in Scotland may have become less liberal in 1967, and again in 1990, the passing of the legislation and its amendments did not practically restrict access to abortion in the jurisdiction. In fact, as one West Coast doctor noted soon after the 1967 Act came into force, ‘the Act might as well not have been passed as far as [his] patients [were] concerned’, since physicians continued to permit or deny termination according to their own fiat, without fear of prosecution. The 1967 Act was ‘fundamentally underpinned’ by the idea that family planning should be an area regulated by medical, rather than strictly legal expertise, but it is apparent that this position prevailed in Scotland even prior to 1967. As Meyers pointed out in his contribution to a Gedenkschrift dedicated to T. B. Smith, ‘letting doctor and patient decide’ has long been ‘the wisdom of Scots law’ (see David L. Carey Miller and David W. Meyers, Comparative and Historical Essays in Scots Law: A Tribute to Professor Sir Thomas Smith QC, (1991)).
The passing of the 1967 Act was not, however, a complete irrelevance. Since there was a strong public perception in Scotland that the legislation would serve to ‘legalise’ abortion, the number of lawful terminations ultimately increased while the ‘back-alley abortionist with her knitting needles’ was functionally consigned to the dustbin of history (see Davis, The Legalisation of Therapeutic Abortion, 1968 SLT (News) 205). Yet it might be thought that, had the Scots common law position been better known and understood throughout society, more women would have been able to access safe and lawful abortions even without the intervention of Parliament. The legality of therapeutic termination prior to 1967 was not well-known even within the medical profession itself, since Glaister and Rentoul’s ‘medico-legal bible’ (J. Glaister and E. Rentoul, Medical Jurisprudence and Toxicology, used by generations of medical students) failed to differentiate the law of Scotland and England regarding abortion. This, it must be inferred, must have led to the availability of abortion being lower than should have been the case.
Such is not to say that the pre-1967 Scottish model was perfect, or even ‘good’. In fact, prior to 1967 (as, indeed, today) the availability of abortion in Scotland depended greatly on one’s geographical location within the jurisdiction. In Aberdeen, for instance, access to abortion was widened considerably from the 1930s onwards through the efforts of Sir Dugald Baird, who took up the Regius Chair of Midwifery at Aberdeen University in 1937. Although social conditions in Glasgow were similar to those in Aberdeen at the time, access to abortion in this city was considerably more difficult; in fact, for a lengthy period after the passing of the 1967 Act abortion continued to be comparatively unavailable, leading to the Glasgow-Liverpool train being termed ‘the abortion express’ since Glaswegian women found that they had to travel to England in order to procure safe and legal abortion. The primary driving force which increased the availability of abortion in Scotland has, accordingly, been changing social attitudes, combined with increased medical provision and awareness of the legality of therapeutic termination, rather than any changes in the letter of the law.
While it can be concluded that the 1967 Act is a flawed piece of legislation, and consequently one may raise the question of whether it is appropriate for abortion to be expressly ‘de-criminalised’ in Scotland, one must – in recognition of the liberality (on paper) of the pre-1967 position – give due consideration to what, precisely, ‘de-criminalisation’ would entail. For Scots, it is not a simple case of repealing ‘Victorian’ legislation. Rather, the process of ‘de-criminalisation’ would necessarily have to involve a consideration of what, precisely, the Scots common law criminalised (and continues to criminalise). The starting point in this tale may in fact be taken to be pre-Victorian: the Institutional writer Hume (nephew of the philosopher of the same name) discussed abortion in his Commentaries on crime (1797-1844), albeit only to distinguish induced miscarriage from the crime of murder. For the crime of murder to be made out, ‘the slaughter must be of a person, or existing human creature’. A foetus is no such thing in Scots law; in fact it is ‘only pars viscerum matris [part of the mother’s body], and not a separate being’ (vol.1, at 186).
Scots law, in the time of Hume, then, proscribed the provision of a ‘criminal’ (i.e., a non-medically regulated, or unsafely provided) abortion, but the guilty party to such was not the woman seeking termination. It was the abortion provider. The foetus was conceptualised as a part of the woman’s own body, rather than as a separate entity worthy of legal protection. As the Nineteenth century progressed, however, it came to be said that ‘the crime is equally committed by the woman who submits to the operation, or the taking of noxious medicines… though her offence is of an inferior degree, and she is often the object rather of commiseration than punishment’ (Alison, Principles, at 628).
The rationalisation of this extension of culpability was the doctrine of art and part (‘since the instigation is the conduct of which the actus reus is the consequence, the instigator will be guilty of the completed crime if it follows on the instigation’ – Gordon’s Criminal Law, 1st edn. at 128). Yet although Alison provided an unequivocal statement of this in his Principles, and later writers such as Gordon and MacDonald took as a matter of faith that such a charge against the party seeking abortion would be competent, the authority that each cited as support for the proposition – the 1806 case of Robertson and Batchelor – did not see the woman who sought abortion tried. Instead, it involved the prosecution of a Catherine Robertson ‘who was the immediate actor in the business’ and George Batchelor who ‘was the means of introducing [the woman who sought abortion] to Robertson’ (Hume, I, at 278, fn.2). Hume reports that ‘the jury found the woman “guilty of the crime libelled”, but here is clearly referring to Robertson, rather than the (unnamed) woman who sought the termination.
The other authorities referred to by Gordon and MacDonald are likewise suspicious; MacDonald puts stock by the case of Robertson and Kempt, which Hume expressly clarifies was not a case of abortion, but rather one in which ‘another and capital crime concurred with the destruction of the child’ (Hume, Vol.1, at 187). In the case of H.M Advocate v Rae (1888) 15 R. (J.) 80, to which Gordon refers, ‘the woman on whom the act was said to have been performed… was not charged with the crime’, though she was known to the police and prosecutors. Accordingly though to do so is certainly to embrace heterodoxy, it might be suggested that the crime of ‘procuring abortion’ is not one with which a woman or girl who seeks termination could be competently charged, unless particularly unusual circumstances were to arise. What the law of Scotland criminalised prior to 1967, and continues to criminalise post-1967, does not appear to be the seeking or self-procurement of termination (lawful or unlawful), since the foetus is juridically recognised as a part of her body, and self-harm – as a rule – is lawful, but rather the provision of an unsafe and unregulated abortion, or the means to that effect. There are – as Gordon and his editors accept in the various editions of his work – ‘no modern reported cases in which the mother has been charged’ with ‘procuring abortion’ (stated verbatim in all editions of Gordon’s work, 1967-2016).
Consequently, it is thought that advocates of the ‘de-criminalisation’ of abortion in Scotland must reckon with what, exactly, ‘de-criminalisation’ is to mean. While there is no doubt that the law of Scotland pertaining to abortion is in a sorry, confusing and unsatisfactory state, and that legislative clarity would be welcome, it is not altogether clear that a woman or girl who seeks to procure termination herself commits a crime. Rather, it seems that the fundamental nature of the crime of abortion in Scotland is the intentional or reckless provision of an unsafe termination in circumstances which might put the prospective mother’s life at risk. That such is criminal, it might be thought, is reasonable.
Placards bearing the mantra ‘abortion is healthcare’ are often seen at pro-choice protests in the United States. The truth of this mantra has long been recognised in Scots jurisprudence, which has (albeit unsatisfactorily) treated abortion as a primarily medico-legal matter since at least the beginning of the Nineteenth century. The provision of healthcare – it should be trite to say – must be regulated by law, sometimes by the criminal law. Hence, rather than arguing for the amendment of the 1967 Act, or full ‘de-criminalisation’ of abortion (which, if improperly implemented, would bear unintended consequences), what advocates of safe and accessible termination ought to be encouraging is the expanded provision of abortion services in Scotland to allow for lawful terminations where required. It has recently been reported that some patients have been forced to continue with unwanted pregnancies, or otherwise to travel to England to access abortion services, due to the fact that some health boards will not carry out termination procedures past 15 weeks gestation, notwithstanding the s.1(1)(a) 24-week limit. This is unsatisfactory on its own merits and ought to be remedied. The problem cannot, however, be fixed simply by changing the letter of the law.