The Observer view on abortion: abolish this archaic law that makes criminals of innocent women | Observer editorial

According to one leading UK abortion provider, police investigations of women suspected of illegally terminating their own pregnancies have increased significantly in recent years.

Earlier this year, Reported by MSI Reproductive Choices that this type of criminal investigation was very rare before 2018, but that it is known of many others occurring since then. While the number of women prosecuted for this crime remains small – four in the last 20 years – these police investigations can be traumatic for women, some of whom may have lost their babies, and the risk of prosecution can hang over them for months.

MPs have an important opportunity to decriminalize abortion in England and Wales this week when they vote on a row changes to the Criminal Justice Bill. Abortion remains a criminal offense under the Offenses Against the Person Act 1861, but the Abortion Act 1967 provides that it is legal where it is carried out in accordance with the conditions: where two doctors are of the opinion that the continuation of a pregnancy to 24 weeks gestation would risk physical or mental harm to a pregnant woman or her existing children; or, in the case of a pregnancy of more than 24 weeks, when two doctors consider that termination is necessary to prevent serious permanent damage to the woman, or failure to do so would endanger her life, or that if the child is born, it will suffers from a serious infirmity.

Abortion is a vital form of health care for women and should be regulated as such. One possible reason for the increase in police investigations is an unintended consequence of providing abortion via telemedicine since the pandemic. This is an important innovation that allows women with a pregnancy of less than 10 weeks’ gestation to be sent the two abortion pills after a remote consultation. As a result, some women who have had miscarriages or stillbirths may feel suspicious because, in theory, it is easier to mislead the practitioner conducting the remote consultation, whether intentionally or unintentionally.

The women who faced criminal investigation included one who gave birth at home more than three months prematurely. She performed CPR on the boy; her husband called an ambulance and her son survived. However, she had previously explored the possibility of an abortion, only to be told she was over the 24-week limit. Her husband was arrested on suspicion of performing an illegal abortion and both were subject to year-long police investigation.

Another case reviewed by abortion provider BPAS involved a woman under the age of 18 who did not have access to an abortion while locked out and later denied termination because she exceeded the legal limit; when she later gave birth to a stillborn baby, she was the subject of a police investigation.

Women don’t have to face this. Among the amendments to the Criminal Justice Bill that will be put to a free vote is the option to decriminalization of abortions up to 24 weeks – meaning that no woman or doctor acting with her consent could be prosecuted for abortions performed before that time. This amendment would also ensure that no woman who terminates her own pregnancy will ever receive a prison sentence. In addition, the Director of Public Prosecutions will have to give his personal consent to any prosecution of a woman who terminates her own pregnancy after the 24-week limit.

The reform is long overdue and MPs must act this week.