WESTMINSTER legislation to decriminalise abortion has cleared the House of Commons this week – but what about Scotland?
Abortion is still a crime in Scotland, England and Wales, under legislation which was passed in 1967.
But in the Commons this week, an amendment to the Crime and Policing Bill will remove the threat of “investigation, arrest, prosecution or imprisonment” of any woman who acts in relation to her own pregnancy.
It comes after several high-profile cases where women have been arrested for illegal abortion offences.
In Scotland, while the same 1960s legislation applies, and sets a number of limitations on the circumstances that allow an abortion can be granted, campaigners have said there is less “urgency” for decriminalisation to be brought in north of the Border.
Rachel Clarke, of the British Pregnancy Advisory Service (BPAS), explained: “In England and Wales we've got underlying statute dating to the 1800s which is being used against women on a sort of semi-regular basis.
“More than 100 women have been investigated in recent years, six have ended up in court. There are also quite a few of those women who are still in the system awaiting a decision from prosecutors on whether their case is going to be taken to court.
“So for us, that change is very urgent and essential.”
In one instance, Nicola Packer was taken to a police cell from hospital after delivering a stillborn baby at home. She had taken prescribed abortion medication at around 26 weeks pregnant, later telling jurors that she did not realise she had been pregnant for more than 10 weeks.
Clarke explained that there hadn’t been the same levels of criminalisation in Scotland, mostly due to the existence of common law that isn’t “used against women in the same way” as the Westminster statute.
“Because Scotland doesn't have that urgent problem, the work that we've been doing up there and that Back Off Scotland has been doing up there, has been about trying to do wholesale reform of the law as the first thing,” Clarke explained.
“To deal with the issues that we've got, but also to support some of the work that's going on around improved access, particularly at later gestations.”
“The most urgent thing in Scotland at the moment is the lack of services post 20 weeks.”
Abortions are permitted until 24 weeks under the current law, but if a woman in Scotland requires one after 20 weeks, they have to travel to England for specialist care.
The Scottish Greens have recently called for abortion to be decriminalised in Scotland, but with the clock counting down to the Holyrood elections in 2026, there is little time on the parliamentary agenda to get legislation scrutinised and passed.
The power to update the law on abortion was devolved to the Scottish Parliament in 2016. There has been ample time to tackle the issue.
In January, Scottish Labour MSP Carol Mochan asked the Scottish Government when it plans to review the current legal framework on abortion.
Women’s health minister Jenni Minto pointed to a commitment made by Scottish Government ministers in the 2023 programme for government to review the law.
An expert group is due to send a report to ministers in the summer, but she notes that “proposals for changes to abortion law would be subject to a public consultation”.
With the topic of abortion likely to spark a heated debate, it will undoubtedly be a lengthy, contentious process, whatever the expert group suggests.
It is clear that the current law is outdated and crying out for reform – but with the aforementioned tight deadline for Holyrood legislation, it could be a long time until Scotland modernises the law on abortion.
