Understanding the Legality of Abortion: A US/UK Comparative Framework

Abortion is one of the most politically divisive issues not only in the United States, but also around the world. But it is much more than a political issue--abortion is a public health issue, a legal issue, and a gender-based violence issue. Research shows that globally, abortions happen regardless of whether they are legal; pregnant people of all ages and of all nationalities seek abortions. (1) Barriers to access only serve to make these abortions more dangerous. According to the Guttmacher Institute, “experts believe that about one-third of women undergoing unsafe abortions experience serious complications, yet fewer than half of these women receive hospital treatment.” (2) Making abortions safe and accessible globally is imperative for public health, and so restricting abortion access to varying degrees, as well as stoking negative stigma around abortion, constitutes an act of gender-based violence.

It can be difficult and confusing to understand not only abortion policies in the United States as they currently stand, but also how the history of abortion legislation in the US--and the particular stigmas that have developed around abortion across the country--influence the way forward towards more equitable abortion access. Perhaps the best way to highlight this complexity is through a comparative breakdown between abortion policy in the US and abortion policy in other modern democracies. In terms of a comparison to the United Kingdom, specifically, there is much to be learned about abortion policy reform from examining the differences and parallels between both countries’ approaches to abortion legislation and analyzing the impact of legislation across both societies.

The purpose of this blog post series is to break down the US/UK abortion legislation comparison in three major ways: in this installment, we’ll take a closer look at the history of abortion legislation and the current laws on the books in both countries. In the next installment, we’ll delve into the legislative limits of the current laws in practice. In the final installment, we will take a look at how the COVID-19 pandemic of the past year has affected the two countries’ abortion protocols differently. Hopefully, these comparisons will offer insights into how the United States’ abortion legislation operates, how it is manipulated in practice, and what is possible for the future of abortion access in this country.

Abortion Laws in the U.S.:

The United States is governed by both federal laws, which apply to the entire country, and state laws, which are individualized to particular states; federal law supersedes state law, as it is considered the supreme law of the land. (3) Abortion is legalized under federal law, which means that it applies nationally. But as we’ll see in the second installment of this series, the process for procuring an abortion is not so simple. Additionally, the legalization of abortion is fairly new in US history. Before the 1973 Supreme Court decision in Roe v. Wade that legalized abortion (discussed in more detail below), the United States had a relatively long history of abortion restriction. Connecticut was the first state to introduce an absolute abortion ban in 1821, but by 1900 every state (which was 45 states back then) had laws banning abortion. By the time that Roe v. Wade was decided in 1973, abortion was illegal in all cases in thirty states, legal only in circumstances such as rape, incest, or danger to the pregnant person’s life in sixteen states, and only completely legal in four states: Alaska, Hawaii, New York, and Washington. (4)

In 1965, the Supreme Court decision in Griswold v. Connecticut ruled that prohibiting the use of contraception violated a person’s “right to privacy.” Although not explicitly stated, the right to privacy is inherent in the Due Process Clause of the Fourteenth Amendment.* This particular Supreme Court decision paved the way for the 1973 ruling in Roe v. Wade, which declared that the right to privacy was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” (5) To put it simply: abortion was legalized for the entire country by using the argument of a pregnant person’s “right to privacy” inherent in the Fourteenth Amendment to the US Constitution, and abortion continues to be a legal right in the United States today.

Abortion Laws in the UK:

In contrast, abortion is still legally classified as a criminal act in the United Kingdom. According to Sections 58 and 59 of the 1861 Offenses Against the Person Act, it is a crime both for a pregnant person to “procure her own miscarriage” and for another person to help them to do so (ie. a doctor or a nurse practitioner); these crimes are technically punishable by life in prison. (6) The 1967 Abortion Act was finally introduced not to decriminalize abortion, but to provide a legal “exception” that still requires the authorization of two separate doctors. Under the Abortion Act, abortions can take place within the first 24 weeks of a pregnancy (up to the end of the second trimester), but only if two doctors agree that carrying the pregnancy to term would pose a greater risk to the physical or mental health of the pregnant person than abortion would. Abortions after 24 weeks can only occur in instances outlined below. (7)

According to the Abortion Act, an abortion exception is appropriate when the doctors are both of the “opinion that there are lawful grounds for the procedure.” Lawful grounds can fall under any one of the following four criteria: “a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, or injury to the physical or mental health of the pregnant woman or any existing children of her family;” this means that, up to the end of the second trimester, a pregnant person can qualify for an exception if the physical and mental “risk” to the pregnant person outweighs the risk of carrying a pregnancy to term. (8)

Criteria (b) is “that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman;” this criteria appears to be classified as more extreme than simply outweighing the risk of carrying a pregnancy to term, which is why the 24-week limit is not imposed--though the definition of “grave” is not offered. (Id) Criteria (c) is “that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated;” again, this criteria considers risk specifically to the pregnant person’s “life,” which is why the 24-week limit is not imposed. (Id) Criteria (d) is “that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.” (Id) This exception relates to the anticipated physical or mental disabilities of the fetus versus the risk to the pregnant person.**

In short, a pregnant person in the UK is not entitled to pursue an abortion just because they want an abortion--a pregnant person needs to receive authorization from two doctors, who are themselves in agreement on the exception criteria, in order to technically avoid exposure to criminal charges.

Conclusion:

From this limited scope, it appears that the United States is actually the more progressive country of the two when it comes to abortion access in the modern world. After all, abortion is legal across the entire United States, while is it still technically a criminal offense in the UK that requires the agreement of two doctors to procure an exception for. However, as you’ll see in the second installment of this blog post series, the reality is not nearly so straightforward. In practice, evidence indicates that abortion is much more accessible overall in the UK, according to factors such as cost, geography, and efficiency. So, how do we account for such a discrepancy? We’ll explore that next.

It’s also worth noting that, to this day, the language in both countries’ abortion legislation is not gender inclusive when referring to pregnant persons who do not identify as women or as mothers. Exceptions written into abortion restriction bills, which have consistently emerged since the decision in Roe v. Wade--up to and including in 2021--include language that refer to the danger to the “mother’s” life, or, as in Arkansas’ most recent bill, exceptions for saving “the life of a pregnant woman”. (9) The decision in Roe v. Wade explicitly uses female pronouns to describe pregnant people and language such as “woman” and “mother.” The plaintiff in the case is a woman, and so references to her as a woman are credible, but the language of the decision encompasses pregnant people generally: one of the pillars of the decision is “a woman’s qualified right to terminate her pregnancy.” (10) In the United Kingdom, exceptions for abortion written in the 1967 Abortion Act are similarly described in relation to a “pregnant woman.” (8)

It has even been a struggle in this blog post to focus on inclusive language, especially when the sources for this research uniformly deploy the word “women” to describe pregnant people. The exclusionary gendering of abortion legislation can be described as yet another example of gender-based violence that is perpetuated institutionally.

*To learn more about the “right to protection” and the Due Process Clause of the Fourteenth Amendment, click here.

**The exploitation of disabled communities in abortion politics, from both conservative and progressive standpoints, needs to be acknowledged here, though there isn’t significant room within this post to describe the depth and history of this issue.

1. The Guttmacher Institute, Sharing Responsibility: Women Society & Abortion Worldwide (Chapter 4):

https://www.guttmacher.org/sites/default/files/pdfs/pubs/sharing.pdf

2. The Guttmacher Institute, Sharing Responsibility: Women Society & Abortion Worldwide (Chapter 5):

https://www.guttmacher.org/sites/default/files/pdfs/pubs/sharing.pdf

3. National Constitution Center, The Supremacy Clause:

https://constitutioncenter.org/interactive-constitution/interpretation/article-vi/clauses/31#:~:text=This%20Constitution%2C%20and%20the%20Laws,Constitution%20or%20Laws%20of%20any

4. Mic, Roe v. Wade: A Simple Explanation Of the Most Important SCOTUS Decision in 40 Years:

https://www.mic.com/articles/23822/roe-v-wade-a-simple-explanation-of-the-most-important-scotus-decision-in-40-years#.yiABc9Pmj

5. ACLU, The Making Of The Right To Abortion

https://www.mic.com/articles/23822/roe-v-wade-a-simple-explanation-of-the-most-important-scotus-decision-in-40-years#.yiABc9Pmj

6. FPA, Abortion Law: England, Scotland and Wales:

https://www.fpa.org.uk/sexual-and-reproductive-rights/abortion-rights/abortion-law