The abortion decriminalisation amendments at Westminster: bad law in the making

By Mary Neal - posted 13 June 2025

Two amendments aimed at decriminalising abortion in England and Wales have been tabled at Westminster and will be debated on Tuesday 17 June. These amendments to the UK government’s Crime and Policing Bill represent the latest in a series of attempts to legislate for decriminalisation. This article explains what ‘decriminalisation’ means, why it is a priority for abortion rights campaigners, how the current amendments would impact the law, and why amending government bills is the wrong way to go about changing the law in this area.

1. The current law and the campaign to decriminalise abortion

To ‘decriminalise’ abortion is to remove it from the purview of the criminal law, either partly or fully. It is surprising to some that abortion is still a criminal matter in the UK. The most recent statistics available show a quarter of a million abortions in the year 2022 in England and Wales alone, and it is estimated that the annual figure has now exceeded 300,000. There were 18,207 abortions in Scotland in 2023 (up 10% on the previous year). Although all abortions in England, Wales and Scotland must be authorised under one or more of the grounds in the Abortion Act 1967 (‘the 1967 Act’), it has long been acknowledged that each year, ‘in the vast majority of cases…the request for abortion is not grounded primarily in medical factors’. In other words, most abortions are performed because the pregnancy, while medically normal, is unwanted. This has created a general perception among laypeople that in the UK, abortion is available essentially on request before the end of the twenty fourth week of pregnancy.

However, where a termination in England or Wales does not comply with the terms of the 1967 Act, this could result in criminal investigation and possibly a charge of ‘procuring abortion’ under sections 58 or 59 of the Offences Against the Person Act 1861 (‘the 1861 Act’). If the pregnancy has progressed beyond 24 weeks, the charge could be ‘child destruction’ under the Infant Life Preservation Act 1929 (‘the 1929 Act’). In Scotland, depending on the circumstances, failing to comply with the terms of the 1967 Act might constitute the common law crime of ‘procuring abortion’.

In the mid-2000s, as abortion rights campaigners were marking the fortieth anniversary of the 1967 Act, many were also beginning to criticise the framework set out by the Act as ‘paternalistic’ and ‘no longer fit for purpose’. Since then, calls to ‘decriminalise’ abortion (i.e. to remove it from the criminal law) have been gathering momentum. There have been numerous attempts to achieve decriminalisation for England and Wales by repealing the statutory crimes, but none has succeeded so far. However, campaigners seized the opportunity to decriminalise abortion in Northern Ireland – properly a devolved matter – by amending legislation in Westminster while the Northern Ireland Assembly was suspended: section 9(2) of the Northern Ireland (Executive Formation) Act 2019 repealed sections 58 and 59 of the 1861 Act as far as Northern Ireland was concerned. The following year the Abortion (Northern Ireland) (no 2) Regulations 2020 came into force, establishing a framework under which abortion was available on request up to 12 weeks’ gestation; on broad social grounds up to 24 weeks; and up to birth in cases where there is a risk of death or grave permanent injury to the woman, or a diagnosis of fatal or severe fetal abnormality. This took Northern Ireland’s abortion law from being the most restrictive in the UK to being the most liberal, at least on paper.

Abortion laws in Great Britain are far more liberal than pre-2019 Northern Irish law. There is much that can and will be said separately about the debate in Scotland; however this article concerns the amendments currently tabled at Westminster, and they have no relevance for Scotland since abortion is now a devolved matter and only Holyrood can make or amend Scotland’s abortion laws.

2. The case for decriminalisation in England and Wales

Campaigners for decriminalisation have two broad objections to the current law in England and Wales.

One is that the framework of the Act assigns a ‘gatekeeping’ role to the medical profession: two doctors must certify that every abortion meets at least one of the grounds in section 1 of the Act. Although this is easily done in most cases, campaigners believe that it is wrong in principle that women should have to satisfy doctors of the need for an abortion. Access to abortion should be a ‘right’, on this view, rather than a treatment decision involving the exercise of medical judgment: the decision to terminate a pregnancy should be one for the woman alone. This is somewhat at odds with the contemporary framing of abortion as ‘treatment’ or even ‘routine healthcare’, since although patients have a right to accept or refuse treatment that is offered, treatment is not normally provided ‘on demand’.

The primary objection, however, is the risk of investigation and prosecution which campaigners say hangs over women because of the underlying criminality of abortion. Over 100 women are said to have faced criminal investigation since 2020, and at least six women have been prosecuted. One of them, Carla Foster, was convicted under the 1861 Act in 2023 in a very high-profile case, and imprisoned for just over a month before being released on appeal. Although the numbers of investigations and prosecutions are still very low, campaigners note that they represent a ‘record number’ and a ‘sharp increase’, though this language is somewhat misleading, given that there had only been three convictions in the previous century and a half.

It has been noted that ‘[t]he key factor that seems to have given rise to this increase in investigation and prosecution has been the move towards allowing telemedical abortion’. In other words, the uptick in investigations and prosecutions coincides with the ‘pills by post’ scheme introduced during the COVID-19 lockdowns to allow women to access early medical abortion at home without an in-person appointment (a route made permanent in England and Wales in 2022). Many investigations and prosecutions have been of women suspected of using the telemedical route to access abortion drugs well beyond the legal limit for abortion, and well beyond the point at which the unsupervised administration of such drugs is regarded as safe. Carla Foster was such a case: she self-induced abortion at 32-34 weeks using drugs obtained during the first COVID-19 lockdown by lying to a reputable provider about the gestational age of her pregnancy. Other investigations and prosecutions have also tended to involve the deaths of very late-term foetuses.

3. Attempts to legislate for decriminalisation

In recent years there have been a series of attempts by abortion activist MPs to change the current law. Two have taken the form of standalone decriminalisation bills introduced by now-Dame Diana Johnson MP (Labour) in 2017 and 2018. All the rest – including the current attempts – have involved the tabling of amendments to government bills dealing with health or crime. The latter approach is problematic.

There is a longstanding convention at Westminster of treating deeply controversial moral issues like abortion (assisted dying is another current example) as matters of conscience, with MPs given a free vote. By contrast, government bills are normally whipped through the Commons. This means that an MP with a deeply-held conscientious objection to abortion could vote against a decriminalisation amendment in a free vote, only to find that the amendment passes, and that she is subject to a whipped vote on the final version of the bill, which now includes the provision to which she is profoundly morally opposed. Ultimately, MPs may choose to obey their consciences rather than their party whips. Not only would this mean MPs risking party sanctions; it could result in the defeat or delay of important government legislation in crucial areas of policy that matter a great deal to the electorate (and which have nothing at all to do with the tacked-on issue of abortion). Disappointingly, campaigners determined to decriminalise abortion by any means available are perfectly willing to risk disrupting the governance of key policy areas, and to force their colleagues to choose between career and conscience.

While Northern Ireland undoubtedly had a restrictive law prior to 2019, with women routinely travelling to Great Britain for abortions and a small number facing prosecution at home, the same cannot be said of England and Wales, where an estimated 300,000 lawful abortions are now provided annually, overwhelmingly under the ‘social’ ground of the 1967 Act (‘Ground C’), and overwhelmingly funded by the NHS, and prosecutions of women for their own abortions are exceedingly rare.

4. Tonia Antoniazzi’s New Clause 1 (NC1)

NC1 is the more straightforward of the two amendments. It quite simply provides that women in England and Wales who act in relation to their own pregnancies cannot be guilty of any abortion-related offences. It is a measure designed specifically to deal with cases like Carla Foster’s. It leaves the offences in place so that other people can be guilty of them – for example, a doctor who fails to comply with the terms of the 1967 Act when performing abortion, or a man who covertly gives his partner abortion drugs to procure an abortion without her consent; or someone who violently attacks their pregnant partner or ex-partner, causing her to lose a viable pregnancy. The existing offences exist to deal with all of these things, and in fact they have been used far more often to prosecute men who cause the loss of wanted pregnancies than to prosecute women who self-induce abortion. Antoniazzi’s amendment would allow the law to continue dealing with these crimes as it currently does. It would also have no impact on the conscience clause that allows professionals with a conscientious objection to opt out of direct involvement in abortion, and that professionals throughout the UKL rely on every day.

NC1 is a ‘clean’ amendment in the sense that it is straightforward to understand, and it would not lead to any legal confusion. Nevertheless, it would take the law much further than many people are comfortable with, by essentially legalising self-induced abortion at any point up until birth, something that is medically unsafe and which the majority of the public does not support. Most people support the legality of late abortion only when performed by doctors in extreme circumstances.

5. Stella Creasy’s New Clause 20 (NC20)

NC20 is a very different creature. It is long, overly complicated, and difficult to make legal sense of, and its effects would be even more extreme than Antoniazzi’s. NC20 would remove all abortion-related offences from the law of England and Wales, not only for women acting in relation to their own pregnancies, but for everyone. This means that women could self-induce abortions at any stage of pregnancy without being guilty of any offence. But it would also remove any criminal sanctions for doctors who ignore the rules in the 1967 Act, and for abusive men who cause a non-consensual abortion by crushing abortion drugs and putting them in a partner’s drink, or by kicking or beating a heavily pregnant woman in the stomach.

(i) Impact on the Abortion Act

Creasy believes that her amendment leaves the 1967 Act’s regulatory framework in place. NC20 sub-clause (7) states:

…the provisions of sections 1 to 4 of the Abortion Act 1967 remain in place except that that section 1 is amended so as to remove the words “a person shall not be guilty of an offence under the law relating to abortion when” and replaced with “a pregnancy can only be terminated when.

This means that if NC20 passed, section 1 of the 1967 Act would read:

Subject to the provisions of this section, a pregnancy can only be terminated when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith…[section 1 goes on to set out the grounds for abortion].

But what would this actually mean, if all abortion-related crimes had been stripped from the law? Failing to follow the conditions set out in section 1 could no longer render anyone guilty of any offence. The Abortion Act itself does not create any new offences in England and Wales or specify any penalties for failure to comply with the Act’s terms. So the provision in NC20 that section 1 will ‘remain in place’ rings hollow. Of course, professional bodies could continue to publish guidance requiring their members to follow the rules set out in section 1, and professional sanctions could be imposed on those who did not do so. But this would simply remove the regulation of a socially controversial matter from the hands of elected representatives, and hand it to unelected committees of the professions. Far from ending the ‘gatekeeping’ of abortion by the medical profession (once such a key complaint about the 1967 Act), it would elevate such gatekeeping to new heights. 

(ii) Impact on punishing abusive men

Even more worrying is the fact that Creasy’s amendment would abolish the crimes used to punish violent and coercive men. Sub-clause (8) of NC10 provides that:

The Secretary of State must (subject to subsection (9)) by regulations make whatever other changes to the criminal law of England and Wales appear to the Secretary of State to be necessary or appropriate for the purpose of complying with subsection (1).

In other words, it is for someone else to repair the damage done by removing the existing crimes from the criminal law and enact a new crime that can be used against violent and coercive men. And until they do….what? Of course, a violent man who causes pregnancy loss can be charged with other things – like assault or grievous bodily harm – but these charges do not recognise and punish the very distinctive harm to a woman of wrongfully losing a wanted pregnancy. At present, offenders can be charged with both the physical assault on the woman’s body and the wrongful termination of her pregnancy.

It is bewildering that a feminist MP is so determined to abolish crimes that are used much more often to prosecute abusive men than pregnant women. The feminist case for doing so is far from obvious, and it feels like a deeply regressive move.  

(iii) Impact on the right to conscientious objection

Another major issue with Creasy’s amendment (but not Antoniazzi’s) is the impact on section 4 of the 1967 Act (the conscience clause).  Section 4(1) reads, in part:

no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection…

The key phrase is “authorised by this Act”. In the case of Greater Glasgow Health Board v Doogan and another [2014] UKSC 68, Lady Hale said that this means ‘made lawful by the Act’. Only actions ‘made lawful’ by the 1967 Act are covered by the opt-out in section 4. How would Creasy’s amendment affect this? The 1967 Act made abortion lawful under certain circumstances by carving out exceptions to the underlying criminal law. If there is no underlying criminal law, nothing is ‘made lawful’ by the Act anymore, meaning that nothing is covered by the conscience clause. This would be a very serious consequence indeed – removing a statutory right from hundreds of thousands of health professionals in one fell swoop, and without any public acknowledgement of the fact, or any debate.

Pro-decriminalisation campaigners might try to argue that “authorised by” means “made lawful” in the historical sense – i.e. it refers to abortions that were, as a matter of historical fact, unlawful before 1967 and became lawful when the Act came into force. This would be a bit of a reach: Lady Hale simply said ‘made lawful’, and the most common sense reading of this (and therefore the most plausible) is that section 4 protects people from having to participate in abortions that derive their lawfulness from section 1. Thus, if no abortions are deriving their lawfulness from section 1 anymore, because abortion is not unlawful in the first place, this means that there are no longer any abortions to which the protection in section 4 applies.  

As before, Creasy may well believe that sub-clause (7), which provides that section 4 ‘remains in place’, means that protection for conscience will carry on as before. But that is simply not the case in the light of the Doogan judgment. Alarmingly, in this respect, and in the others already discussed, Creasy simply fails to understand the relevant law, or the impact of her own proposal.

6. Conclusion

Carla Foster’s circumstances cannot fail to attract sympathy: she was someone of previous good character and a valued member of her local community, and there was no suggestion that she posed any risk to the public. At the time of the offence she had been experiencing significant upheaval in her personal life and struggling during the first COVID-19 lockdown. She was extremely remorseful about her late term abortion. Moreover, Foster is a mother of three (including one child with a disability) and imprisoning her inevitably punished her children too.

Few people would support the imposition of a custodial sentence in such a case, and many would regard the choice to prosecute her as inappropriate. But was it inappropriate even to investigate the death of Foster’s 32–34-week foetus? Arguably, it is not always inappropriate for the criminal law to take an interest in such cases: late abortion is unsafe and (as noted earlier) most members of the public see it as being acceptable only in extreme circumstances. Moreover, sometimes it is unclear whether the case is one of late abortion or the killing of a preterm child.

Certainly, police investigations will be appropriate only in a very few cases, and providing that prosecutorial discretion and the judicial function are exercised sensibly, they will almost never lead to charges and convictions. To exclude the possibility of criminal investigation altogether would be a radical move, however.

Any move to decriminalise abortion in England and Wales should follow a full public and parliamentary debate that includes consideration of the role of telemedical abortion in driving investigations and prosecutions, and discussion of whether a requirement for in-person consultation should be reintroduced. The process must respect the diverse conscientious positions of MPs; attempting to tack amendments on to government bills that will then be whipped through the Commons is not an acceptable approach.

Moreover, any proposals must be drafted carefully, to avoid leaving the law in a confused and messy state. Stella Creasy’s NC20 would make a mess of the law and should be rejected for this reason alone (quite apart from any concerns about it being extreme, and undermining professionals’ rights of conscience). Antoniazzi’s NC1 is clearer, and would leave conscience rights untouched, though legalising self-abortion up to birth may still be too extreme for many MPs.

If neither amendment passes, we can expect campaigners to continue targeting future bills on crime and health in similar ways. If either amendment succeeds, campaigners’ attention will turn to Scotland, where a Scottish government-established review group has been considering how (not ‘if’) abortion law ought to be reformed here. The group – whose terms of reference appear to presuppose that abortion ought to be decriminalised - is due to report any day. Decriminalisation in England & Wales would prepare the ground for the review group to demand decriminalisation north of the border too, setting the scene for what could prove to be an ugly and polarising debate in Scotland.