Outdated, Harmful and Never in the Public Interest : The Urgent Need to Modernise Scotland's Abortion Law and Prevent Prosecutions

Wood, Jill and Murphy, Catherine and Mitchell, Lynsey and McPherson, Rachel (2024) Outdated, Harmful and Never in the Public Interest : The Urgent Need to Modernise Scotland's Abortion Law and Prevent Prosecutions. Engender Scotland, Glasgow.

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Abstract

Reform of abortion law in Scotland is long overdue. The legal framework which currently governs when an abortion is permitted is made up of a patchwork of laws that stem from as far back as the 17th century. These measures largely reflect the eras in which they were introduced, and the degrees of patriarchal control women were subject to at the time. The law is therefore out of step with the experiences of women in modern Scotland for whom abortion is routine healthcare, accessed by around one in three in their lifetimes. With a few high-profile exceptions, countries across the world are increasingly modernising and liberalising their legal frameworks on abortion. Laws in Scotland, England and Wales now trail behind more progressive regulatory frameworks in most other European countries. Britain, including Scotland, has also failed to keep pace with international human rights standards. These are clear that access to safe, legal and timely abortion is a fundamental human right that must not be regulated using criminal law and penalties. Under the current law women and pregnant people in Scotland have no legal right to end a pregnancy. That decision ultimately sits with doctors, two of whom must authorise the request for an abortion. This layers unnecessary complexity onto service delivery and creates delays and barriers for women. Without this permission and compliance with other rules set out in the Abortion Act 1967, abortion is illegal across Britain, and women, healthcare providers and people assisting someone to have an abortion can be subject to prosecution. The sharp increase in prosecutions for abortion related offences in England throws into stark relief how the legal framework is increasingly working at odds with modern clinical realities, and public health, human rights and gender equality obligations. This report examines the shortcomings of the current legal framework in Scotland in detail, including evidence that women have been charged and prosecuted for abortion related offences in recent years. It sets out pathways to decriminalisation and explores what a modernised and human rights compliant regulatory framework for abortion could look like. The report is informed by input from legal experts and medical professionals, detailing the wide ranging support that exists for decriminalisation. It concludes with clear recommendations for Scottish Government and other key decisionmakers on what the next steps towards a modernised regulatory framework should be. These actions will be vital to support ongoing improvement in reproductive healthcare services and the safeguarding of reproductive rights for future generations of Scotland’s women and pregnant people. The report concludes that the law, related policies, and regulations should be reformed so that no one is punished for accessing abortion, for providing safe abortion, or for assisting someone to have an abortion with their consent. Such a system would ensure regulation of abortion is removed from the criminal justice system and is instead treated like all other areas of healthcare, with issues such as malpractice or unsafe abortion dealt with through medical regulation and existing general law.

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