Review of Abortion Law in Scotland Expert Group: report

4. The current law on abortion in Scotland: An Overview

Abortion in Scotland is governed primarily by the Abortion Act 1967 (the “Act”), which also applies, in an amended form, in England and Wales.^[22] Control over abortion law, and the Abortion Act 1967, has been devolved to the Scottish Parliament since 2016. The Act sets out the circumstances under which a termination of pregnancy may be lawfully carried out. Provided that the requirements of the Act are satisfied, a medical practitioner will not commit an offence under common law abortion offences in Scotland.

The Group’s review began with consideration of the current law in Scotland, including the 1967 Act (as amended), Scottish common law, and relevant regulations and other relevant Acts. Understanding the legal framework and its interpretation in practice is important to assess whether the law remains fit for purpose and consistent with modern clinical practice and human rights standards.

4.1 Time Limits and Grounds for Abortion

The 1967 Act did not include a specific upper gestational time limit for abortions until 1990, when the Human Fertilisation and Embryology Act 1990 amended it.^[23] The amendment introduced a 24-week gestational limit in section 1(1)(a) for abortions performed on the grounds of risk to the physical or mental health of the pregnant woman or her existing children of her family (Grounds C and D as set out below). This was the first time a formal statutory time limit applied in Scotland.

No upper time limit applies in relation to abortions carried out under the other statutory grounds.

4.2 Statutory Grounds for Abortion

Under section 1(1) of the Abortion Act, a pregnancy may be terminated lawfully where two registered medical practitioners are of the opinion, formed in good faith, that at least one of the following grounds applies:

(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, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or

(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or

(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or

(d) 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.

Section 1(4) permits one medical practitioner to terminate a pregnancy where believed, in good faith, to be immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman.

The Abortion (Scotland) Regulations 1991^[24] (as amended) further breaks these sections down into grounds used by clinicians to report abortions authorised under the Abortion Act. Reference to these grounds is made throughout this report.

• Ground A: That the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated.
• Ground B: That the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman.
• Ground C: That the pregnancy has not exceeded 24 weeks and that continuing it would involve greater risk (than termination) of injury to the physical or mental health of the pregnant woman.
• Ground D: That the pregnancy has not exceeded 24 weeks and that continuing it would involve greater risk (than termination) of injury to the physical or mental health of the existing children of the family of the pregnant woman.
• Ground E: That there is a substantial risk that the child, if born, would suffer from such physical or mental abnormalities as to be seriously handicapped.
• Ground F: That the termination is necessary immediately to save the life of the pregnant woman.
• Ground G: That the termination is necessary immediately to prevent grave permanent injury to the physical or mental health of the pregnant woman.

4.3 Emergencies and Single-Doctor Authorisation

Under section 1(4) of the Act, a registered medical practitioner may carry out an abortion without the approval of a second doctor under Grounds F or G above in an emergency situation, where it is immediately necessary to save the woman’s life or to prevent grave permanent injury to her health, recognising the need for urgent clinical discretion in critical situations.

4.4 Role of Healthcare Practitioners

Although the Act requires that abortions be carried out by a registered medical practitioner, in the case of Royal College of Nursing v DHSS [1981], the House of Lords (now the Supreme Court) confirmed that nurses may carry out parts of the abortion procedure, provided that they are acting under the direction of a doctor who retains overall responsibility.^[25]

4.5 Places Where Abortions Can Lawfully Be Carried Out

Section 1(3) of the Act states that an abortion must be performed either in an NHS hospital or a place approved by the Scottish Ministers.

Under section 1(3A), a “class of place” may also be approved, allowing greater flexibility. This has been especially relevant in the context of early medical abortion at home and in other settings, where Scottish Ministers have approved certain homes and other locations as settings where abortion medication can be taken in certain circumstances^[26].

4.6 Regulatory Requirements Under Section 2 of the Act

Section 2 of the Act requires Scottish Ministers to make regulations concerning:

• The certification process by the two doctors;
• The notification requirements to the Chief Medical Officer (CMO);
• And the confidentiality provisions regarding the sharing of information related to abortions.

These requirements are fulfilled through the Abortion (Scotland) Regulations 1991^[27], amended in 2021. Under these regulations:

• Two doctors must complete and sign a standard form (the “green form”) to confirm that the statutory grounds are met. This form must generally be completed before the procedure, except in emergencies, where it may be completed within 24 hours (and signed by only one doctor).
• A doctor must notify the CMO of all abortions carried out, providing their name and that of their employer and the number of abortions carried out within a monthly period. This notification must be submitted by the 15th day of the month following the procedure(s)^[28].

Section 2(3) of the Act provides that anyone who wilfully contravenes or wilfully fails to comply with the requirements of those regulations will be subject to a fine if they are convicted.

In addition to the legislative requirements, Scottish Ministers issued a Direction to Health Boards in April 2022 under the National Health Service (Scotland) Act 1978, requiring Health Boards to submit abortion data to Public Health Scotland (PHS).^[29] This data collection enables the publication of annual abortion statistics.^[30]

4.7 Conscientious Objection

Section 4 of the Act provides that no individual is obliged to participate in treatment authorised by the Act if they have a conscientious objection. This right does not apply in situations where participation is necessary to save the woman’s life or prevent grave permanent injury.

This provision was tested in the case of Greater Glasgow Health Board v Doogan and Wood [2014] UKSC 68,^[31] where two senior midwives objected to being involved in the supervision and delegation of duties to staff providing abortions. The UK Supreme Court ruled that the “conscience clause” applies only to those directly participating in the abortion procedure in a “hands-on” clinical capacity, i.e. “actually performing the tasks involved in the course of treatment”. It was found to be unlikely that, in enacting the conscience clause, Parliament had in mind the host of ancillary, administrative and managerial tasks that might be associated with providing an abortion.

In any legal proceedings, the burden of proof of conscientious objection rests on the person claiming to rely on it. Subsection 3 states “In any proceedings before a court in Scotland, a statement on oath by any person to the effect that he has a conscientious objection to participating in any treatment authorised by this Act shall be sufficient evidence for the purpose of discharging the burden of proof imposed upon him by subsection (1) of this section”. In Scotland, a sworn statement is generally sufficient.

4.8 Additional Provisions: Multiple Pregnancies and Visiting Forces

Section 5(2) of the Act sets out the circumstances in which a termination of one fetus can be carried out where a pregnant woman is carrying more than one fetus (i.e. twins, triplets, etc.). At least one of the grounds in section 1 of the Act must apply and, in cases where the termination is on grounds of a fetal anomaly diagnosis (section 1(1)(d) of the Act) then that diagnosis must apply in relation to the fetus being aborted.

Section 3 of the Act allows medical facilities under the control of visiting forces or international organisations to provide abortions on the same basis as NHS hospitals without needing to be approved by the Scottish Ministers, provided that (a) the medical practitioner providing the abortion has been appointed by that visiting forces or international organisation body and (b) the pregnant woman has a ‘relevant association’ with the body providing the abortion. It also excludes abortions carried out under this section from needing to comply with the record keeping and notification requirements under section 2 of the Act (i.e. visiting forces hospitals/ clinics are exempt from the requirements of the Abortion (Scotland) Regulations 1991). To note, the Group is not aware of any such bodies seeking to provide abortions in Scotland.

4.9 Scots Common Law

The criminal law framework governing abortion in Scotland differs from that in England and Wales. In England and Wales, abortion is criminalised under the Offences Against the Person Act 1861 and the Infant Life (Preservation) Act 1929, with the 1967 Act providing exceptions. Scotland has no equivalent underlying statutory criminal offences, but abortion remains potentially a criminal offence under the common law offence of abortion, unless carried out under the terms of the Act, and people have been prosecuted under section 5(2) of the Abortion Act 1967. The scope and application of the common law offence is importantly unclear, contributing to increasing concerns in recent years regarding the potential for prosecutions in Scotland. Some have argued that abortion related prosecutions under section 5(2) of the Act is a misinterpretation of the law and therefore any reform must resolve this.^[32]

4.10 Other Relevant Legislation

4.10.1 The Concealment of Birth (Scotland) Act 1809

The Concealment of Birth (Scotland) Act 1809 succeeded a law enacted in 1690, which was partly concerned with the abandonment of ‘illegitimate’ children.

Section 2 of the Act provides that:

“And if, from and after the passing of this Act, any woman in Scotland shall conceal her being with child during the whole period of her pregnancy, and shall not call for and make use of help or assistance in the birth, and if the child be found dead or be amissing, the mother, being lawfully convicted thereof, shall be imprisoned for a period not exceeding two years in such common gaol or prison as the court before which she is tried shall direct and appoint.”^[33]

The equivalent offence in English law has been prosecuted in a small number of recent cases of unexplained late pregnancy loss or neonatal mortality.

This legislation does not directly relate to abortion, but it could potentially apply in cases where an unlawful abortion is suspected, as corresponding legislation in England and Wales has been where an abortion offence could not be proved – and indeed there have been prosecutions under this legislation in both Scotland and England in the past two decades. A Freedom of Information request (FOI) submitted to COPFS found that since 2003 there have been six charges brought forward to women suspected of concealing their pregnancy, where the child has been found dead or ‘amissing’.

4.10.2 The Medicines Act 1968 and the Human Medicines Regulations 2012^[34]

In addition to the restrictions imposed by the 1967 Act, which permits only a ‘registered medical practitioner’ to perform an abortion, mifepristone and misoprostol are classified as “prescription-only medicines” (POMs). POMs can only be dispensed with a valid prescription from a registered healthcare professional (e.g. doctor dentist, or certain nurses) and administered as per the practitioner’s instructions. The way the abortion law is widely interpreted means that only doctors prescribe medications for medical abortions, not other professionals such as nurses, who may prescribe the same medications for use in miscarriage care

It is an offence to sell or supply prescription-only medicines without a valid prescription. Therefore, anyone in the UK sending/giving mifepristone or misoprostol to any patient without a valid prescription may be committing an offence regardless of the Abortion Act 1967 or the common law relating to abortion.

4.10.3 The Adults with Incapacity (Specified Medical Treatments) (Scotland) Regulations 2002^[35]

In the vast majority of cases patients will be expected to provide informed consent before having an abortion, as for other forms of medical treatment and subject to the same standards of information disclosure.^[36]

However, in the rare cases where a pregnant patient does not have the capacity to consent to an abortion, it must be provided in line with the provisions of the Adults with Incapacity (Specified Medical Treatments) (Scotland) Regulations 2002. While the 1967 Act does not make any explicit provision regarding consent, Regulation 4 of the 2002 Regulations specifies, subject to some exceptions, that an adult who is incapable in relation to a decision about an abortion can only have an abortion where a medical practitioner appointed by the Mental Welfare Commission, who is not the medical practitioner primarily responsible for any of the adult’s medical treatment, certifies that–

“(a) the adult is incapable in relation to such a decision, and

(b) having regard to the likelihood of its safeguarding or promoting the adult’s physical or mental health, the treatment should be carried out.”

4.11 Review of Current Law

There is a clear need for review of the current law. Ambiguity around the legal status of abortion in Scotland, international human rights standards, evolving clinical best practice, and related impacts on women’s equality – particularly for marginalised groups - all point to the need for overdue modernisation of the abortion framework.

4.11.1 Clarity in the law

The complexity in the law (set out above) may lead to confusion for both patients and healthcare professionals providing abortion care services, hindering the ability of healthcare staff to act in the best interest of their patients. Clinicians in Scotland have attested to a growing concern over the potential exposure to criminal sanctions at work.^[37] The recent increase of prosecutions under the Offences Against the Person Act 1861 in England and Wales (which does not apply in Scotland) has contributed to this, attracting considerable attention in the media and prompting RCOG ‘guidance for healthcare professionals on involving the police following abortion and pregnancy loss’.^[38]

This media attention also has potential to cause barriers to abortion care for patients. Awareness that abortion is criminalised in some circumstances in Scotland appears to be low.^[39] While police investigation into abortion offences has been limited (albeit not non-existent) in 21^st century Scotland, events in England and Wales, and globally, indicate the potential for increased investigations and prosecutions in Scotland. In these circumstances ambiguity in the law has the potential to cause anxiety and even harm for women seeking abortion care and for the clinicians offering it.

4.11.2 International human rights standards on abortion laws

International human rights bodies have firmly established that access to abortion is needed for the realisation of women’s rights.^[40] Legal frameworks that criminalise abortion, causing barriers to access, have drawn attention from numerous UN bodies and processes, including those directed at the UK.

The Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW Committee) has stated that: “legislation criminalising abortion should be amended”; that criminalising abortion is a form of gender-based violence; that laws requiring authorisation from two doctors (as is the case in Scotland) create barriers to access; and, jointly with Convention on the Rights of Persons with Disabilities, that criminal provisions should be repealed to address the disproportionate impact of criminalisation on certain groups, including women living in rural areas and disabled people, with the CRPD specifically noting that concerns on disability discrimination could be addressed by decriminalising abortion. ^[41]

The Committee on Economic, Social and Cultural Rights (CESCR) has instructed states to liberalise any laws that impede access to sexual and reproductive rights, including laws that criminalise abortion. In its seventh periodic review of the UK’s compliance with the UN Convention on Economic, Social and Cultural Rights, the Committee included a focus on access to abortion care, including the legislative framework across all jurisdictions of the UK. It concluded that the UK should be guided by the World Health Organisation’s (WHO) 2022 guideline on abortion care, which recommends full decriminalisation of abortion.^[42]

The Committee on the Rights of the Child (CRC) has emphasised that the criminalisation of sexual and reproductive health services harms adolescent girls in particular and urged states to “decriminalize abortion to ensure that girls have access to safe abortion and post-abortion services.”^[43]

Special Rapporteurs (independent experts appointed by the UN Human Rights Council to examine and report on specific human rights issues) have further reinforced that the criminalisation of abortion does not align with international human rights law. The Special Rapporteur on the right to health emphasised that “decriminalization, coupled with appropriate regulation and the provision of accessible, safe abortion services, is the most expeditious method of fully protecting the right to health against third-party violations.”^[44] Similarly, the UN Working Group on Discrimination Against Women recommended states “decriminalize abortion, expand access to safe abortion services…and remove legal barriers to abortion in situations of crisis.”^[45]

4.11.3 Health standards and evolving clinical best practice

Scotland’s abortion laws do not reflect modern clinical best practice and may act as a barrier to equality of access to health services. Bodies representing healthcare professionals are clear that the law needs to be modernised to bring it in line with the realities of current clinical practice, to support person-centred healthcare, to improve the rights of women, and to improve the efficiency of health service provision and access.

All relevant professional health bodies in the UK support decriminalisation of abortion, including the British Medical Association (BMA), the Royal College of General Practitioners (RCGP), the Royal College of Obstetricians and Gynaecologists (RCOG), the Royal College of Nursing (RCN), the Royal College of Midwives (RCM), the Royal College of Psychiatrists (RCPsych), the Royal College of Anaesthetists (RCoA), the College of Sexual and Reproductive Healthcare (CoSRH), the Faculty of Public Health, the British Association of Sexual Health and HIV (BASHH), the British Society of Abortion Care Providers (BSACP), the Faculty of Forensic and Legal Medicine (FFLM), and the British Maternal and Fetal Medicine Society (BMFMS).

The Abortion Act 1967 sets out restrictions that can impede access to abortion, especially for those in rural areas and for groups that are marginalised within healthcare.^[46] Since 1967, clinical practices, technology, cultural norms, progress towards gender equality, and the human rights landscape have evolved significantly. The Abortion Act is now prohibiting best practice with regards to where an abortion can take place, who can provide it and how. It can delay access to abortion, especially in rural areas, because of the third-party authorisation requirement (‘two doctors’ rule’), and/or place practitioners at risk of breaking the law while providing routine healthcare. It also contains outdated language.

The WHO recommends in its 2022 guideline that: governance of abortion should be removed from the criminal law; abortion should be fully decriminalised; and third-party authorisation requirements and other impediments to clinical best practice should be removed.^[47]

4.11.4 Gender equality and stigmatisation of abortion

Abortion is routine healthcare that is accessed by around one in three women in Scotland in their lifetime. The framework of laws that govern abortion however, some of which is rooted in centuries-old law, has not kept pace with this reality. Instead, the parameters set out in the Abortion Act 1967 reflect sexist attitudes pervasive at the time, women’s equality, and gender roles; women had very little control over reproductive choices, healthcare and many other aspects of their lives.

The Abortion Act requires two doctors to judge whether a woman’s decision to have an abortion is legitimate within the restrictions set out by the Act. This approach is unique within Scotland’s health system, out of step with increasing focus on patient autonomy within healthcare, and subjects individual decision-making to a level of oversight that has no medical justification. Exceptionalising abortion drives the ongoing stigmatisation that prevents improvements in access to services and contradicts the lived reality of abortion as a component of routine healthcare.

Access to safe and timely abortion is also essential for the realisation of rights to privacy, bodily integrity and autonomy. It underpins realisation of economic, social and cultural rights for women, girls and pregnant people, including access to employment, training and education, adequate income and housing, household resources and financial security, and high standards of health and wellbeing.^[48]