Abortion in The United Kingdom - History

History

Abortion was dealt with by the Ecclesiastical Courts in England, Scotland and Wales until the reformation. It was dealt with under the laws of the Catholic Church. The Ecclesiastical Courts dealt mainly with the issue due to problems of evidence in such cases. The Ecclesiastical Courts had wider evidential rules and more discretion regarding sentencing. Although the Ecclesiastical Courts heard most cases of abortion, some cases such as the Twinslayers Case were heard in the Secular Courts. The old Ecclesiastical Courts were made defunct after the Reformation.

Later, under Scottish common law, abortion was defined as a criminal offence unless performed for 'reputable medical reasons,' a definition sufficiently broad as to essentially preclude prosecution.

The law on abortion started to be codified in legislation and dealt with in government courts under sections 1 and 2 of Lord Ellenborough's Act (1803). The offences created by this statute were replaced by section 13 of the Offences against the Person Act 1828. Under section 1 of the 1803 Act and the first offence created by section 13 of the 1828 Act, the crime of abortion was subject, in cases where the woman was proved to have been quick with child to the death penalty or transportation for life. Under section 2 of the 1803 Act and the second offence created by section 13 of the 1828 Act (all other cases) the penalty was transportation for 14 years.

Section 13 of the 1828 Act was replaced by section 6 of the Offences against the Person Act 1837. This section made no distinction between women who were quick with child and those who were not. It eliminated the death penalty as a possible punishment.

Transportation was abolished by the Penal Servitude Act 1857, which replaced it with penal servitude.

Section 6 of the 1837 Act was replaced by section 58 of the Offences against the Person Act 1861. Section 59 of that created a new preparatory offence of procuring poison or instruments with intent to procure abortion.

From 1870 there was a steady decline in fertility, linked not to a rise in the use of artificial contraception but to more traditional methods such as withdrawal and abstinence (Szreter; Fisher). This was linked to changes in the perception of the relative costs of childrearing. Of course, women did find themselves with unwanted pregnancies. Abortifacients were discreetly advertised and there was a considerable body of folklore about methods of inducing miscarriages. Amongst working class women violent purgatives were popular, pennyroyal, aloes and turpentine were all used. Other methods to induce miscarriage were very hot baths and gin, extreme exertion, a controlled fall down a flight of stairs, or veterinary medicines. So-called 'backstreet' abortionists were fairly common, although their bloody efforts could be fatal. Estimates of the number of illegal abortions varied widely: by one estimate, 100,000 women made efforts to procure a miscarriage in 1914, usually by drugs.

The criminality of abortion was redoubled in 1929, when the Infant Life (Preservation) Act 1929 was passed. The Act criminalised the deliberate destruction of a Child "capable of being born alive". This was to close a lacuna in the law, Identified by Lord Darling, which allowed for infants to be killed during birth, which would mean that the perpetrator could neither be prosecuted for abortion or murder. There was included in the Act the presumption that all children in utero over 28 weeks gestation were capable of being born alive. Children in utero below this gestation were dealt with by way of evidence presented to determine whether or not they were capable of being born alive. In 1987, the Court of Appeal refused to grant an inunction to stop an abortion, ruling that a fetus between 18 and 21 weeks was not capable of being born alive. In May 2007, a woman from Levenshulme, Manchester who in early 2006 had an illegal late-term abortion at 7½ months was convicted of child destruction under the Infant Life (Preservation) Act 1929. The case is believed to be the first of its kind in Britain.

In 1938, the decision in Rex v. Bourne allowed for further considerations to be taken into account. This case related to an abortion performed on a girl who had been raped. It extended the defence to abortion to include "mental and physical wreck" (McNaghtan LJ)

The gynaecologist concerned, Aleck Bourne, later became a founder member of the anti-abortion group SPUC (Society for the Protection of Unborn Children) in 1966. The pro-choice group, the Abortion Law Reform Association, was formed in 1936.

In 1939 the Birkett Committee recommended a change to abortion laws but the intervention of World War II meant that all plans were shelved. Post-war, after decades of stasis certain high-profile tragedies, including thalidomide, and social changes brought the issue of abortion back into the political arena.