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by Margaret Taylor
26 April 2023
Abortion: why the first minister is wrong to promise a change in the law

Abortion: why the first minister is wrong to promise a change in the law

For someone who claims to be a supporter of abortion rights, First Minister Humza Yousaf does not always appear to be on top of the detail. Having served as cabinet secretary for both justice and health prior to taking up the top job that is more than a little surprising. Yet by promising to decriminalise abortion in the current parliamentary term, Yousaf has shown just how much he has to learn on the subject.

“Making a pledge like that in Scotland betrays how little he understands the law here,” says Dr Mary Neal, a healthcare law specialist at the University of Strathclyde. 

In fairness, Neal says the law around abortion is complicated, mainly because the 1967 Abortion Act – a UK-wide piece of legislation – “means different things in England and Wales and Scotland”. The aim of the act, introduced by Scottish MP David Steel two years after he entered the Commons as The Baby of the House, was to protect women from the harm caused by backstreet abortionists. It did that by setting out certain circumstances in which the 1861 Offences Against the Person Act – which makes it a crime to procure miscarriages using instruments or poisons – and the 1929 Infant Life (Preservation) Act – which criminalises the destruction of a viable foetus at the end of pregnancy – can be disregarded. But, as neither act applies in Scotland, those underlying crimes do not apply here either.

The decriminalisation debate started in other parts of the UK, where women were being criminalised

“It is complex and the Scottish legal position is less well understood because Scotland gets less attention [than the rest of the UK], but one of the reasons the law in Scotland gets less attention is that we don’t have a problem with criminalisation here,” Neal says. “The decriminalisation debate started in other parts of the UK, where women were being criminalised. In Northern Ireland in particular they had one of the most restrictive regimes and now have one of the least [abortion up to 12 weeks was decriminalised in Northern Ireland in 2019] and there have been cases in England and Wales where women have been prosecuted for obtaining abortion drugs illegally. Those cases have been very few but there have been none in Scotland.”

The reason for that, says Dr Jonathan Brown, a senior lecturer in Scots law at the University of Stirling, is that, unlike in England and Wales, there is no underlying criminal legislation for the 1967 act to over-ride. “Prior to 1967 there was no legislation in Scotland so abortion was never rendered a crime,” he says.

Instead, Scotland relies on a mixture of common law, case law and the Victorian-era writings of Edinburgh University professor David Hume – nephew of the philosopher of the same name – whose position was that the foetus is part of the mother’s body rather than a person in its own right and as such destroying it can’t be murder. 

“Abortion in Scotland is not a crime if it is done in the medical, therapeutic, context,” Brown says. “If a woman seeks a back-alley abortion then that’s a crime, but the woman who seeks the abortion would not be liable – the case law shows that only the person providing the abortion would be prosecuted.”

It therefore follows that decriminalising abortion in Scotland would, in effect, legalise non-medical, back-street abortions, as – legal time limits aside – those are the only kind of terminations that the law does not currently allow. That could create a significant problem given the difficulties women already experience in accessing the abortions they are legally entitled to receive, with different health board areas imposing different cut-off dates for providing abortion care. Though the 24-week limit is enshrined in law via the 1990 Human Fertilisation and Embryology Act, last year an investigation by The Scotsman newspaper found that eight health boards do not carry out the procedure beyond 18 weeks, four have a limit of 20 weeks, and the cut-off in NHS Fife is just 15 weeks and five days. Whether it is due to a lack of appropriate medical facilities or a lack of trained – or willing – personnel, women in these areas are forced to travel to England to access procedures they are legally entitled to here. If back-street terminations were effectively decriminalised they may be tempted to take their chances closer to home. 

Religious group 40 Days for Life has been holding 'vigils' outside Scottish abortion clinics and hospitals

Despite what the law says, religion has always played a part in how easy abortion services are to access in Scotland. Indeed, when the 1967 act legalised abortion in England so many women started making the train journey from Glasgow, where the strong Catholic faith influenced doctors’ willingness to provide terminations, to Liverpool, where they could finally be performed with impunity, the service became known as the Abortion Express.

Things have moved on since then, to the extent that Glasgow has one of Scotland’s few dedicated sexual health units in the Sandyford Clinic, but religiously motivated pro-life campaigners are increasingly trying to prevent women from accessing the services they provide. In the run up to Easter American anti-abortion group 40 Days for Life held so-called vigils outside Scottish clinics and hospitals for the entire period of Lent, with more than a hundred protestors pictured outside Glasgow’s Queen Elizabeth University Hospital trying to prevent women from going in. They held placards bearing slogans such as ‘Don’t be coerced into abortion’ and ‘Before I formed you in the womb I knew you’ and, according to a doctor who was filmed confronting them, harassed and intimated women as they went in. 

It has, says Back Off Scotland, a campaign group that has for three years been lobbying for the introduction of 150-metre protest-free buffer zones around hospitals, become a growing problem in recent years.

“We started Back Off Scotland in 2020 because we were aware of problems in Edinburgh but the earliest recorded protests in Scotland were in the 1990s, when the group Precious Life Scotland began protesting outside Brook Advisory clinics,” says Back Off cofounder and campaign coordinator Alice Murray. “They have not always been consistent but we’ve had 40 Days for Life and for a while in Edinburgh they did every Monday afternoon. We started Back Off Chalmers to ask Edinburgh City Council to put in a buffer zone around [Edinburgh sexual health clinic] Chalmers but started to get messages from across Scotland saying people have had it in the whole country and a council byelaw wouldn’t tackle the issue.”

Pro-life groups say they are providing a service to women. Rose Docherty, who was recruited by 40 Days for Life to organise its Scottish arm, told the Daily Record newspaper that the purpose of the group’s “prayer vigils” is to “help” women who have been “coerced” into having an abortion. “We are offering pro-life pregnancy crisis support, and we’re offering help to women experiencing post-abortion syndrome as well,” she said. That is not how the women attending clinics – for whatever reason – experience the interventions, though.

Murray, who is currently studying a law conversion course, says she decided to have a termination after becoming pregnant as a 20-year-old anthropology student. When she attended the Chalmers Centre she had to walk past seven protestors holding placards on the opposite side of the street. She says she feels lucky their presence was so small but that she nevertheless felt intimidated. Another woman who attended the same clinic tells of being harassed by protestors who were “chanting, praying loudly, showing photos of foetuses, giving out leaflets, and approaching women and couples entering the clinic, [and] telling people that dead embryos go into vaccines”. Another, who was attending the Royal Infirmary of Edinburgh when she was pregnant with her second child, says she confronted protestors and told them she had had a termination in between pregnancies. One member of the group screamed in her face and told her she was going to get cancer, she says.

Lauren, who was “shattered” when her 20-week scan revealed a syndrome that meant her baby would die soon after birth, chose to have a termination “because the idea of letting my baby girl suffer and die slowly was abhorrent to me”.  “I had a few appointments between then and my termination and every time I had to pass by the protesters [trying to make] me feel like a monster for making the decision, I did,” she says. “It was so bad that I made my mum drive the longer way out of the hospital so that I didn’t have to see them. But on the day I was to be induced, I had to drive past them again. I hadn’t realised how much they had affected me until four years later when I fell pregnant with another baby girl. I still purposely went the longer way to appointments and would get upset and angry when I did see them protesting. I have PTSD [post-traumatic stress disorder] from them being there even though five years have passed and I have a healthy baby.”

Green MSP Gillian Mackay has been working on a member's bill that would introduce 150-metre no-protest buffer zones around Scottish hospitals and clinics

Back in 2021, the SNP made a manifesto commitment to protect people’s abortion rights but stopped short of making any pledge to back buffer zones. Those seeking abortions should “not be targeted for choosing to access this right”, the party said but, rather than promising to use its own powers to introduce protest-free zones, said it would support any local authority that wished to do it via byelaws instead. When Back Off met with then women’s health minister Maree Todd later that year she gave a lacklustre response, saying the government was reluctant to introduce legislation that could be challenged for breaching laws around freedom of religion or freedom of speech.

Green MSP Gillian Mackay has taken up the cause, pledging to lodge a member’s bill that would see 150-metre no-protest zones around hospitals introduced. But, while Yousaf has said he supports the move and that Mackay will get “the full support of the government” to “bring forward that bill as quickly as we possibly can”, draft legislation is yet to be produced. Meanwhile, legislators in Northern Ireland have given their backing to buffer zones while the UK Government’s Public Order Bill, which will see them introduced in England and Wales, is expected to come into force in the summer.

“Everyone is saying the right things just now but we can’t for the lives of us understand why it has taken so long and how we are now in a situation where we are the last country in the UK – and bizarrely probably the most socially progressive – that doesn’t have buffer zones,” says Back Off cofounder Lucy Grieve.

Rachael Clarke, chief of staff at the British Pregnancy Advisory Service, says this is frustrating, not least because a recent judgment from the UK Supreme Court – which had been asked to consider a challenge to the Northern Irish legislation – makes it clear how any legal challenge is likely to be dealt with. The attorney general for Northern Ireland had asked the court to consider whether buffer zones would violate protestors’ human rights; the court ruled that they would not.

“We expect legal challenges to any Scottish legislation and they will be multi-pronged,” Clarke says. “They will look at freedom of speech, freedom of assembly and freedom of religion – these are the challenges that have come up with every buffer zone and the Scottish Government is right, these will happen no matter what. The Supreme Court has already ruled on Northern Ireland and the judgment was so overwhelming when it spoke about the impact protests have on women that for the Scottish Government to still be going on about [legal challenges] is baffling. It’s very clear what the Supreme Court thinks and we’ve been very clear with the Scottish Government on how we think that will interact with Scottish abortion law.”

For Mackay, the Supreme Court ruling has made the task of drafting her bill much easier – “the fact that that precedent is there is massive,” she says – and, while Scotland is different to the rest of the UK in that abortions are mostly carried out in hospitals rather than specialist abortion clinics, she says being able to draw on existing legislation will be helpful. 

“Our context is slightly different in terms of physical delivery of services so we can’t do a direct copy and paste, but it’s certainly helping that there are examples to follow, if not pinch,” she says. “Ours will be a Frankenstein of everyone else’s.”   

When the bill will be lodged is still not clear, though. Mackay’s office has been working on it alone without any input from the parliament’s Non-Government Bills Unit. A consultation she launched last May received a huge response, helped in part by people reacting to the overturning of landmark US abortion law Roe v Wade half-way through the consultation period. In addition to analysing all 12,000 submissions, her team has had to redact and PDF every one before they can be published, something that has taken many months to get through. The job, she says, is nearly done, but in the meantime protestors outside Scottish hospitals continue to have free rein.

It didn’t have to be this way, with the Scottish Government having plenty of opportunity to take responsibility for drafting the legislation itself. Yousaf is making some of the right noises about buffer zones now, but by committing to decriminalise abortion in the current parliamentary term while saying buffer zones will be dealt with “as quickly as we possibly can” he has shown how confused his priorities on abortion provision are. As health secretary, Yousaf could have made a significant impact on abortion care by ensuring Scottish hospitals can carry out the late terminations women are forced to travel to England to access. As first minister, he can pledge swift action on making buffer zones a reality. Promising to decriminalise something that isn’t a crime in the first place might have let the first minister flex a bit of socially progressive muscle, but in reality it is just a distraction.

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