Authors:Legal Action Group
Last updated:2024-03-28
Abortion rights under threat: how to use the law to protect women
Marc Bloomfield
Description: Pro-choice rally_Pexels_Derek French
Amid the increasing investigation, prosecution and criminalisation of abortion, a way forward was suggested at the Doughty Street Chambers International Women’s Day (IWD) Celebration to protect the right of every woman in England and Wales to choose as a human right.
In October 2022, the buffer zone amendment to the Public Order Bill was introduced, which placed protected areas around abortion clinics so that women could access their services without interference. It became law in May 2023 but was not implemented. Instead, the government ran a consultation (now ended) that undermined the very principle of buffer zones and included allowing silent prayer outside clinics.
Drawing on her experience in Northern Ireland, Stella Creasy MP, outlined the ‘Northern Ireland Lock’ and her indication to propose to parliament the same process in England and Wales. She said: ‘We can take heart from what we did in Northern Ireland when we introduced decriminalisation there. We also gave the secretary of state the responsibility to ensure that the human right to have an abortion was upheld … and that is how we get ahead of the backlash that changing the law on abortion can generate, and the calls to end telemedicine.’
Now in its ninth year, Doughty Street’s IWD Celebration lived up to its reputation of bringing together inspirational women to explore what more the law can do for women and girls. This year, the event came against a backdrop of a series of setbacks in women’s rights in the US: the overturning of Roe v Wade; Alabama deciding frozen embryos are children; and the Arizona Republican Party opposing a bill to protect contraception. Panel chair Caoilfhionn Gallagher KC made a rallying cry to all: ‘We need your expertise, we need your dynamism, we need your ideas.’
Creasy argued that abortion is also under attack in England and Wales: ‘In the last decade, 90 women have been investigated under section 60 laws … most who have suffered a miscarriage and failed to register it … and that’s not the only instance of the Offences Against the Person Act being used, there have also been 67 prosecutions under s58 and s59, and an increase in those investigations – 40 investigations in 2021 alone … women who need, not a police officer, but a counsellor at their hospital bed.’
In June last year, Carla Foster was prosecuted for taking abortion pills past the legal time limit, and sentenced by Pepperall J to 28 months’ imprisonment (later successfully appealed). The panel said the case showed there is a ‘guidance gap’ and Dr Emma Milne of Durham University called on the director of public prosecutions to provide direction to prosecutors in abortion cases similar to the guidance issued previously on assisted dying: ‘For example, a number of years ago, when there wasn’t clear guidance [on assisted dying] … what it led to was a series of cases investigated or prosecuted which now wouldn’t be under the new guidance which was brought in by Keir Starmer.’
This was supported by Doughty Street’s Karlia Lykourgou: ‘It needs the CPS to take a hard look at themselves as to whether this is actually in the public interest to pursue these cases.’