Understanding the Legality of Abortion: A US/UK Comparative Framework (Part II)

Introduction:

The purpose of this blog post series is to break down the U.S./U.K. abortion legislation comparison in three major ways: in the previous installment, we took a closer look at the history of abortion legislation and the current laws on the books in both countries. In this installment, we’ll delve into the legislative limits of the current laws in practice, as well as the ways in which certain laws are actually less restrictive than they appear to be. 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 Practice in the U.S.:

Although abortion is legal in the U.S., individual states have been drafting and signing bills and laws designed to restrict abortion access since the decision in Roe v. Wade was made, in a configuration that the Guttmacher Institute describes as a “lattice work of abortion law.” (1) Basically, though the right to an abortion has been established through federal law since 1973, for nearly fifty years individual states have been making access to abortion much more complicated through avenues such as restricting health insurance coverage, implementing waiting periods or ultrasounds, mandating that clinics meet unnecessary or arbitrary standards to shut them down (thus limiting geographical access), and a host of other financial and logistical barriers. These barriers disproportionately affect poor people, disabled people, and people of color seeking abortions, though they are designed to prevent all abortions, largely due to religious influences. Let’s break down some of the categories addressed in this lattice work:

TRAP Laws: TRAP stands for “Targeted Regulation of Abortion Providers,” and it describes the unnecessary licensing requirements created to make it difficult for abortion service providers to stay open. These regulations pertain both to the professionals allowed to conduct abortions and also to the configurations of the physical clinics. For example, 11 states require abortion providers to have some affiliation with a local hospital; according to the Guttmacher Institute, this does “little to improve patient care,” and does much more to “set standards that may be impossible for providers to meet.” (2) 38 states require abortions to be performed specifically by licensed physicians versus nurse practitioners, physician assistants, or certified nurse-midwives (all of whom are perfectly qualified to perform abortion procedures). (1) 17 states require the involvement of a second physician after a specified point. (1) All of these requirements put a significant strain on resources and practitioners. In terms of the physical spaces, laws have been passed making specifications on every aspect of the space, from how wide corridors must be in buildings where abortions are carried out, to how big parking spaces must be, to how far away these buildings must be from schools. (3) All of these laws work together to force fully operational abortion clinics to close.

Geography: As more abortion clinics are forced to close, persons seeking abortions have to travel further and further distances, many of whom cannot afford or find suitable public transportation to do so; in the cases where private transportation itself is not an obstacle, many cannot afford to take the significant time off work or arrange the childcare that might be required to travel such distances, especially if they need to stay for mandatory waiting periods or follow-up appointments. And this is not even considering the potential physical side effects of an abortion. It could very well be impossible for a person to drive themselves many hours to undergo a procedure or procure a medication abortion, and then be able to drive themselves hours to get home. In addition to these considerations, states with fewer clinics are likely to be overstressed for resources and might accordingly have significant waiting times for appointments. According to Amnesty, 27 major U.S. cities are considered abortion “deserts,” where most people live more than 100 miles from an abortion provider. (3) As of June 2019, six U.S. states are down to just one abortion clinic: Kentucky, Mississippi, Missouri, North Dakota, South Dakota, and West Virginia. (3)

To put this into context, let’s consider the single abortion clinic in South Dakota: the Planned Parenthood of Sioux Falls. Sioux Falls is in the southeast corner of the state; someone driving from the northeast corner of the state--for example from Buffalo, SD--would have to drive nearly seven hours just to get there. That person would be better off going to Billings, Montana, where the nearest abortion clinic to them is a mere five-hour one-way drive away. There isn’t a single Planned Parenthood in neighboring states North Dakota or Wyoming; in the latter state, I couldn’t find current research on a single open abortion clinic. Previously cited clinics, Emerg-A-Care and Planned Parenthood, have both permanently closed. (4) In North Dakota, the single clinic, the Red River Clinic, is a six-hour one-way drive from a place like Buffalo, SD. And none of these routes have available public transportation options (at least none that Google Maps can discover).

Expense: According to Planned Parenthood, abortions can cost up to $1,500, which is a financial strain many Americans cannot afford to incur. (5) Attempts to offset these costs are limited; federal funds in the U.S. are prohibited from funding abortions, due to the 1976 Hyde Amendment, which withholds federal Medicaid funding from abortions nationally with extremely narrow exceptions. (6) Outside of federal funds, only 16 states provide state funding for Medicaid enrollees in the state who are seeking abortions. (7) 33 states, as well as the District of Columbia, actively ban the use of state funds except, in accordance with the Hyde Amendment, in cases when the pregnant person’s life is in danger or the pregnancy is the result of rape or incest. (7) South Dakota has actually gone so far as to defy federal requirements by limiting their funding only to cases of life endangerment, which is a direct violation of the Hyde Amendment. (6) In addition to this conflict of federal and state funding, states have also interfered with financial access to abortion by restricting health insurance coverage. 11 states currently restrict the coverage of abortion in private insurance plans; 9 of these states require the purchase of additional specific abortion coverage. (8)

Medication Abortion: Also known as the “abortion pill,” mifepristone and misoprostol are used to conduct abortions in about 40% of abortion cases, when the pregnant person is up to ten weeks pregnant. (9) Since providing medication abortion can 1) be much more straightforward and accessible for persons seeking abortions and 2) lift the strain on abortion providers’ limited resources, many restrictive laws are targeted towards eliminating it as a practice. In 33 states, only a licensed physician is allowed to dispense medication abortion pills, despite contradictory findings from the “World Health Organization, the National Academies of Science, Engineering, and Medicine, and the National Abortion Federation” that nurse practitioners, physician assistants, and nurse-midwives are perfectly capable of dispensing such medications. (9, 10) In a 2019 study from the U.S. Government Accountability Office, “14 state Medicaid programs do not cover mifepristone even in the cases of rape, incest, and life endangerment as is required by the Hyde amendment.” (9)

Emotional Manipulation: When none of these other categories of restrictions succeed in making abortion inaccessible, there are a host of other manipulation tactics that are currently codified in law. One of these tactics is mandatory waiting periods, which can require a pregnant person to wait up to 72 hours after a consultation with a doctor to procure an abortion. In South Dakota, weekends and holidays are exempt from those 72 hours, which means the mandatory wait could be as long as five or six days after the consultation. (11) This obviously requires more than one trip to a clinic, which is unimaginable for many people seeking abortions, and especially those in abortion deserts. 37 states also require some sort of parental involvement when minors seek out abortions, spanning the spectrum of parental notification to active parental consent, which is intended to intimidate. (12)

Some states require a pregnant person to undergo an ultrasound and also force them to view it afterwards, and some force pregnant people to receive “counseling” by unlicensed, unregulated, and unaccredited “crisis pregnancy centers” before undergoing an abortion. (11) 18 of these states mandate that counseling include information on topics such as the purported “link” between abortion and breast cancer or long-term mental health consequences for the person seeking an abortion. (1) In reality, “a robust body of evidence continues to find no such link” between abortion and breast cancer. (13) And, contrary to negative mental health consequences, most pregnant people who seek abortions “state feelings of relief after an abortion.” (13) Even further, a review by the American Psychological Association “found no credible evidence” that abortion “in and of itself causes mental health problems for adult women.” (13)

Each and every one of the scare tactics listed above, in addition to inflammatory and terrifying anti-abortion clinic protests*, compound to make an already difficult, expensive, and overall inaccessible experience all the more hostile.

Abortion Laws in Practice in the UK:

While abortion is technically still illegal in the U.K. for anyone who’s seeking an abortion just because they don’t want to be pregnant, the reality is that qualifying as an “exception” is extremely straightforward due to the parameters laid out in Section A of the 1967 Abortion Act. Section A states that an abortion can happen until nearly the end of the second trimester if two doctors agree 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.” (14) Though on the surface this sounds like a high threshold to reach, medical evidence has shown that, on a physical level, abortion is less risky in regards to maternal mortality than childbirth is, thus making it automatically less risky to get an abortion than to carry a pregnancy to term and go through childbirth. (15) Research has also shown that aborting an unwanted pregnancy has no significant negative psychological side effects compared to carrying an unwanted pregnancy to term. (15) In short, this means that the threshold of risk can technically be met by any pregnancy. As a result, 98% of abortions in the U.K. occur under Section A. (15)

Aside from the relative ease of passing the “exception” threshold for abortion in the U.K., there are many other ways in which abortion in the U.K. is more accessible in practice than in the U.S. In terms of cost, 98% of abortions are free of charge through the National Health Service (NHS), the universal healthcare provided in the U.K. This lifts a significant financial stressor from consideration in a pregnant person’s abortion decision, though there’s always the option to pay for an abortion privately. (16) There are also a variety of ways a pregnant person can approach getting an abortion appointment, from self-referrals to referrals from a GP (General Practitioner) or referrals from a sexual health clinic. The NHS website explicitly states that a pregnant person should not have to wait more than two weeks from the first referral to the actual abortion, and that first consultation is expected within five days and can be conducted over the telephone, thus making that first hurdle accessible to anyone with telephone access. (17) However, one study published in 2018 found that women were experiencing estimated waiting times of three weeks after the initial referral. (18)

In the U.K., if a minor under sixteen years old is seeking an abortion, the minor’s parents do not need to be informed about the abortion, thus eliminating another scare tactic that the United States deploys. (19) Similarly, the pregnant person’s partner does not need to be told about the abortion or give consent for the abortion to occur. (19) In terms of geography, dozens of designated abortion clinics** span nearly every single county of England, as well as Scotland and Wales. (20) Abortions are also conducted in hospitals and account for about a quarter of abortions in England in Wales, whereas in the United States only 5% of abortions are conducted in hospitals. (21, 22) There are still existing reports of women who needed to travel over 100 miles to the nearest clinic or couldn’t afford the transportation required to get to clinics, but from my research this does not appear to be an extremely common narrative. (18)

Of course, the transition from restrictive legislation to accessible practice has not been a perfect upwards arc in the entirety of the U.K.--though the 1967 Abortion Act applied to England, Scotland, and Wales, it was never extended to Northern Ireland, the final country within the United Kingdom. (23) Instead, abortion was only allowed in Northern Ireland if the pregnant person’s life was at risk or if there was a risk of “permanent and serious damage” to the pregnant person’s mental or physical health. (23) Up until 2019, pregnant people from Northern Ireland who were seeking abortions had no choice but to travel to England to do so. This was time consuming and expensive, thus making it a completely inaccessible option to most people. In 2017, the British government announced that pregnant people from Northern Ireland could start seeking abortions for free in England, but that did not eliminate the geographic barriers or sociopolitical barriers. In 2019, abortion was finally decriminalized and the sections on abortion in the Offenses Against the Person Act of 1861 were repealed in Northern Ireland; the changes went into effect on March 31, 2020. Since then, however, the Northern Ireland Human Rights Commission has begun legal action “over the delay in commissioning abortion services,” and the case will be heard this May. (23)

And even in the rest of the U.K., getting to abortion clinics does not come without a cost beyond transportation and childcare considerations. According to BPAS (the British Pregnancy Advisory Service), there have been anti-abortion demonstrations at 45 different abortion clinics in England and Wales over the past few years, which have taken the forms of displaying “graphic images of dismembered foetuses,” “filming women and staff members,” and “following women down the street.” (24) Those interviewed about the protests said that, among other things, they were called murderers and baby killers, and were told they would die if they took pills. (24)

Conclusion:

While the written abortion legislation of both countries discussed in the previous installment indicated that the United States was the more progressive of the two, in practice abortion is realistically more accessible in the U.K. When it comes to issues such as cost and geography, the United Kingdom has fewer barriers for women of varied socioeconomic statuses to procure an abortion. Clearly, there are still issues that the United Kingdom must address when it comes to making abortion a universally accessible and non-traumatizing experience. Although it is extremely easy to meet the exception threshold of abortion legality, it needs to be completely decriminalized, at least within the first and second trimesters of pregnancy. The other issues that have arisen in my research, such as long wait times, transportation/childcare barriers, and harassment from clinic protestors, are easily remedied with medication abortion available by mail. This is a strategy featured heavily in the final installment of this series, where we’ll discuss how the added complication of the COVID-19 pandemic has further affected the application of abortion laws in both countries.

*for more information about the legality around abortion protests in the US, click here.

**the clinics referenced are run specifically through the following non-profits: the British Pregnancy Advisory Service (BPAS), MSI Reproductive Choices UK, and National Unplanned Pregnancy Advisory Services (NUPAS)

Sources:

1. The Guttmacher Institute: An Overview of Abortion Laws: https://www.guttmacher.org/state-policy/explore/overview-abortion-laws

2. The Guttmacher Institute: Targeted Regulation of Abortion Providers: https://www.guttmacher.org/state-policy/explore/targeted-regulation-abortion-providers#

3. Amnesty International: Abortion laws in the US – 10 things you need to know: https://www.amnesty.org/en/latest/news/2019/06/abortion-laws-in-the-us-10-things-you-need-to-know/

4. Wyoming Public Media: Last Wyoming Planned Parenthood Standing Will Close Doors In July: https://www.wyomingpublicmedia.org/post/last-wyoming-planned-parenthood-standing-will-close-doors-july#stream/0

https://www.stjohns.health/locations/tj-maxx-plaza/

5. Planned Parenthood: How do I get an in-clinic abortion? https://www.plannedparenthood.org/learn/abortion/in-clinic-abortion-procedures/how-do-i-get-an-in-clinic-abortion

6. Planned Parenthood: Hyde Amendment: https://www.plannedparenthoodaction.org/issues/abortion/hyde-amendment

7. The Guttmacher Institute: State Funding of Abortion Under Medicaid: https://www.guttmacher.org/state-policy/explore/state-funding-abortion-under-medicaid

8. The Guttmacher Institute: Regulating Insurance Coverage of Abortion: https://www.guttmacher.org/state-policy/explore/regulating-insurance-coverage-abortion

9. Kaiser Family Foundation: The Availability and Use of Medication Abortion: https://www.kff.org/womens-health-policy/fact-sheet/the-availability-and-use-of-medication-abortion/

10. The Guttmacher Institute: Medication Abortion: https://www.guttmacher.org/state-policy/explore/medication-abortion

11. Planned Parenthood: Types of State Attacks on Abortion: https://www.plannedparenthoodaction.org/issues/abortion/types-attacks

12. The Guttmacher Institute: Parental Involvement in Minors’ Abortions: https://www.guttmacher.org/state-policy/explore/parental-involvement-minors-abortions

13. British Pregnancy Advisory Service: Abortion in Practice: A guide for GPs: https://www.bpas.org/media/1367/gp-guide-issue-5-web-copy.pdf

14. Abortion Act 1967: https://www.legislation.gov.uk/ukpga/1967/87/section/1

15. British Pregnancy Advisory Service: Britain’s abortion law: https://www.bpas.org/get-involved/campaigns/briefings/abortion-law/

16. The Family Planning Association: Abortion: https://www.fpa.org.uk/factsheets/abortion

17. NHS: Overview, Abortion: https://www.nhs.uk/conditions/abortion/

NHS: What Happens, Abortion: https://www.nhs.uk/conditions/abortion/what-happens/

18. PubMed Central: Barriers the accessing abortion services and perspectives on using mifepristone and misoprostol at home in Great Britain: https://oar.princeton.edu/jspui/bitstream/88435/pr1vt95/1/Barriers.pdf

19. British Medical Association: The law and ethics on abortion, BMA views: https://www.bma.org.uk/media/3307/bma-view-on-the-law-and-ethics-of-abortion-sept-2020.pdf

20. BPAS: Find a clinic: https://www.bpas.org/contact-us/find-a-clinic/

MSI Reproductive Choices United Kingdom: Find you nearest MSI Reproductive Choices clinic: https://www.msichoices.org.uk/find-us/

NUPAS: Our Abortion Clinics: https://www.nupas.co.uk/clinics/

21. Department of Health & Social Care: Abortion Statistics, England and Wales: 2019: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/891405/abortion-statistics-commentary-2019.pdf

22. The Guttmacher Institute: Abortion Incidence and Service Availability in the United States, 2017: https://www.guttmacher.org/report/abortion-incidence-service-availability-us-2017

23. BBC News: Abortion in NI: Timeline of key events: https://www.bbc.com/news/uk-northern-ireland-politics-56041849

24. British Pregnancy Advisory Service: Demonstrations (Abortion Clinics) Bill, Bill briefing on abortion clinic protests: https://www.bpas.org/media/3355/demonstrations-abortion-clinics-bill-briefing.pdf

Infographic created by Isabella Cuan.