The Abortion Act 1967
50 years since the Abortion Act 1967
The ‘Act to amend and clarify the law relating to termination of pregnancy by registered medical practitioners’ received royal assent on 27 October 1967.
About the author
Charles Ward is a solicitor and a freelance writer.
Readers might also be surprised to discover that under English common law life did not begin at conception; life began instead at ‘quickening’, which is the point at which the unborn child begins to move inside its mother’s womb. In fact, the word ‘quickening’ means ‘coming to life’, which is why a woman in the later stages of pregnancy was said to be ‘quick with child’. It is also why common law did not regard pre-quickening abortion as a crime.
The medieval judge Henry de Bracton wrote about it when he said: ‘If one strikes a pregnant woman or gives her poison to procure an abortion, if the fetus is already formed or animated, and especially if it is animated, he commits homicide.’
Where Henry de Bracton got it wrong was in his description of post-quickened abortion as homicide. William Blackstone pointed out, 500 years later, that a homicide could not occur before the birth of the victim. A ‘quickened’ foetus killed in the womb was, therefore, ‘a heinous misdemeanour’, he said. Though what are notable by their absence are any reported cases of prosecution under that medieval law. Perhaps with primitive medical knowledge such cases would have been impossible to prosecute. The absence of reported cases means that the common law treatment of abortion remains untested and undefined. We have only what writers, such as Henry de Bracton and William Blackstone, thought the law to be.
The turning point was the Offences Against the Person Act (OAPA) 1837 which, for the first time, abolished any distinction between pre-quickened and post-quickened abortion. The OAPA introduced the offence of ‘procuring a miscarriage’, which applied at whatever stage of pregnancy the miscarriage was procured.
However, it was still considered a comparatively minor misdemeanour, with a maximum sentence of three years’ imprisonment or transportation. Those provisions were later repealed and reenacted in sections 58 and 59 of the OAPA 1861, which also imposed a maximum sentence of life imprisonment for the same offence. This legislation remains in force today for any abortion which takes place outside the confines of the Abortion Act (AA) 1967.
The Abortion Act (AA) 1967 itself was the result of a Private Members’ Bill introduced by David Steel MP, who was later to become leader of the Liberal Party. It was the seventh Private Members’ Bill on the subject, and the first to succeed. As originally drafted, the proposed legislation was wider than it is today.
However, it was scaled back as a result of section The ‘Act to amend and clarify the law relating to termination of pregnancy by registered medical practitioners’... was the result of a Private Members’ Bill... The Abortion Act received royal assent on 27 October 1967 37 of the Human Embryology and Human Fertilisation Act 1990, which (save in exceptional circumstances) reduced the time limit for abortions from 28 to 24 weeks to take account of medical advances in the intervening period. As amended, the AA runs to only five sections, which can be summarised as follows: Under section 1(1), a person is not guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered practitioners are of the opinion, formed in good faith, that:
- the pregnancy has not exceeded its 24th week and the continuation of the pregnancy would present greater risk than if the pregnancy is terminated of injury to the physical or mental health of the pregnant woman or any existing children of her family; or
- termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or
- continuation of the pregnancy would involve risk to the life of the pregnant woman greater than if the pregnancy was terminated; or
- there is substantial risk that if the child was born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
Section 1(2) explains that in assessing risk of injury to health, account can be taken of the pregnant woman’s actual or reasonably foreseeable environment.
Section 1(3) states that except where immediately necessary to save the life or to prevent grave permanent injury to physical or mental health of the pregnant woman, the treatment must be carried out in an NHS Hospital or another venue approved by the secretary of state.
Section 2 deals with notification; section 3 contains special provisions applicable to visiting forces; section 4 allows clinicians with a conscientious objection not to participate in treatment, unless such treatment is necessary to save the life or prevent grave permanent injury to the physical or mental health of the woman; and section 5 contains supplemental provisions.
It will be seen that while the AA does not throw obstacles in the way of a woman seeking abortion, there are procedures to be followed which are primarily to ensure the following:
- that the procedure is safely carried out by a registered medical practitioner at an NHS or other approved clinic; and
- that the abortion is carried out as the result of informed decisions on the part of the woman seeking the abortion and the doctors authorising it.
To authorise an abortion up to 24 weeks, a doctor is required to complete a form HSA1. This is a simple one-page certificate in which the doctor states whether or not they have carried out a physical examination of the woman, and whether any of the statutory grounds have been met.
There is also a variant HSA2 for an emergency abortion. There is no requirement – or even space within those forms – for doctors to explain or justify their decision. Provided the form is signed off in good faith, the statutory requirements are met.
As part of a Daily Telegraph investigation in 2012, a pregnant woman posed as someone seeking an abortion on the ground that she wanted to give birth to a boy instead of a girl. Two doctors who agreed to carry out her abortion were then reported for prosecution.
In deciding not to prosecute the doctors, the Director of Public Prosecutions (DPP) acknowledged that there was just sufficient evidence to substantiate prosecution. However, he ruled that a prosecution would not be in the public interest as no abortion had actually taken place. Any prosecution would have been for ‘attempt’.
For the same reason, the DPP refused to allow a subsequent private prosecution against those same doctors. But the absence of prosecution did not make the doctors’ actions right. The eventual outcome of the investigation was the publication of official guidance by the Department of Health and by the British Medical Association (BMA) on how doctors should discharge their responsibilities under the AA.¹ It therefore seems likely that any future breach of those guidelines could be dealt with as a professional conduct issue rather than as grounds for prosecution.
Instead of creating abortion on demand, it could be argued that the AA as amended has moved the law closer to the common law which existed before 1837. Had that law been allowed to evolve in step with medical advances, it is also plausible to think that it might have become similar to the legal position as it exists today. The fact that the common law can evolve in step with medical advances is apparent from the steady stream of end-of-life cases, in which the law has come to terms with the fact that death does not always come naturally but, increasingly, results from informed clinical decisions to switch off life-support (see Airedale NHS Trust v Bland [1993] AC 789).
According to the BMA’s own statistics, more than 90% of modern-day abortions take place within the 13th week of pregnancy, which means that the bulk of the procedures would have been legal under medieval law.²
1 Guidance in relation to requirements of the Abortion Act 1967: For all those responsible for commissioning, providing and managing service provision, Department of Health, May 2014, available at: http://tinyurl.com/ybct6hgc and The law and ethics of abortion BMA views, November 2014 (updated June 2017), available at: http://tinyurl.com/ydhuroow
2 See The law and ethics of abortion BMA views, para 2.1.1, available at: http://tinyurl.com/ydhuroow