Wednesday briefing: Why the Royal College is speaking out against abortion prosecutions

  • 1/24/2024
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Good morning. Between 1861 and 2022 only three women were prosecuted and convicted in the UK for illegal abortions. Over the last two years, six women have been taken to court and 29 suspected cases of illegal terminations came under investigation. The reason behind the rise in police investigating this issue is unclear, but it has caused much concern among health workers and campaigners who say that abortion should not be criminalised. In response to this trend, the Royal College of Obstetricians and Gynaecologists (RCOG) has released new guidance discouraging medics and other health workers from reporting people suspected of ending their pregnancies illegally. The intervention from the health body was strongly worded, stating that the RCOG “firmly believes it is never in the public interest to investigate and prosecute women” who have had illegal abortions. The RCOG added that staff who disclosed confidential patient information without consent could face proceedings by professional bodies. For today’s newsletter, I spoke with the Guardian’s legal affairs correspondent, Haroon Siddique, about the UK’s abortion legislation and the potential impact of this new guidance. That’s right after the headlines. Five big stories Middle East | The US has carried out strikes in Iraq against three facilities linked to Iran-backed militias, the Pentagon has said, after a weekend attack on an Iraqi airbase that wounded US forces. US news | Donald Trump has won the New Hampshire primary, likely cementing his place as the Republican presidential nominee, but his only remaining rival, Nikki Haley, has vowed to stay in the race. World | The Doomsday Clock, a symbolic countdown to human extinction, has stayed at 90 seconds to midnight, the closest it had been since it was established in 1947, a panel of international scientists has said. 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Under the 1861 act, women who unlawfully administer drugs or instruments to cause an abortion could be “kept in penal servitude for life”. For decades, this detail went largely unacknowledged, but now, more women than ever are facing prosecution for having suspected illegal abortions. A big intervention The RCOG’s decision to step in was in part due to timing. Over the last year, six women have been taken to court in England, among them a 15-year-old girl who had an unexplained early stillbirth. She was subjected to a year-long criminal investigation, with her text messages and search history being examined by police. This month, 22-year-old Bethany Cox has been found not guilty of two charges relating to an illegal abortion after a three-year investigation. And last year, the case of Carla Foster, who took abortion pills during lockdown after she was past the legal time limit for an abortion, prompted outrage after she was sentenced to 28 months in jail – a court of appeal judge eventually ruled that her sentence would be suspended and halved to 14 months. “I think these cases happening all at once has really brought the issue back into the limelight, making the RCOG feel like they have to intervene,” Haroon says. In an intervention on Monday that will trigger further debate on the decriminalisation of abortion, Dr Ranee Thakar, the president of the professional body, said “outdated and antiquated” abortion laws meant women were left vulnerable to criminal investigation. Though there are instances where medics and others should report concerns to the police, for example when there is evidence that FGM has been carried out on a child, the NHS code of practice states health workers only need to alert police if there’s a danger of a serious crime. Haroon wrote a comprehensive analysis on the legal basis of the RCOG’s recommendations. No one knows why The motivation behind the relatively sudden uptick in prosecutions and lengthy investigations into abortions is unclear. “I think it’s fair to say no one really knows for sure why,” Haroon says, “but the increased use of pills obtained to do abortions at home during the pandemic has perhaps brought a level of awareness to the potential of illegal abortions happening, even if there’s a debate about whether they should be prosecuted in the first place.” During the early part of the pandemic, the government introduced the temporary “pills by post” scheme, to ensure that women could access relevant reproductive healthcare during lockdowns without going to health settings. The government tried to quietly scrap the measure but, after significant pushback, it was made permanent in England and Wales in 2022. One theory is that, in an effort to ensure that the scheme is not being misused, police are clamping down on the potential prevalence of illegal abortions. However, some measures have been described as cruel, with police reportedly testing women who have had miscarriages for abortion drugs and searching through women’s phones for their search histories and evidence on period-tracking apps. ‘Horrendous impact’ “It’s safe to say that an investigation like this could have a horrendous impact on a person,” Haroon notes. The RCOG has said that prosecutions exposing “deeply traumatised” women to invasive investigations are often “distressing” and instead it firmly believes that women “should be treated with care and compassion, without judgment or fear of imprisonment”. Jonathan Lord, the co-chair of the British Society of Abortion Care Providers, told the Guardian that the organisation has had “several reports of patients with quite severe PTSD – not from the pregnancy loss, but from the police investigation afterwards”. Families also bear the brunt. Carla Foster, who was described as “vulnerable” by the courts, spent time in prison after the police investigated her. She was separated from her three children, one of whom the judge said had special needs, which meant that he was “particularly reliant” on the “love and support” of his mother. Campaigners are pushing for abortion to be completely decriminalised, so that health workers and those who are pregnant and considering an abortion are protected from criminal investigations. “In the meantime, they’re doing their best to ensure that, with the resources and the sway they have, no woman does face [criminalisation] by telling their members not to disclose information to police,” Haroon says. However, he adds that it’s important to remember that for many “this still doesn’t go far enough”. Anything short of full decriminalisation will mean that a pregnant person’s future is “dependent on whether individual health workers cooperate”. 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