Review of Abortion Law in Scotland Expert Group: report

6. Pathways

The topic of pathways considered how the law shapes the way abortion services are accessed in Scotland, and how providers are able to deliver them. The current law governs not just whether someone can access care (i.e. the grounds under which an abortion is allowed), but where an abortion can be performed and by whom. Currently only doctors can authorise and oversee abortions, and two doctors must sign off a request for an abortion before the procedure can go ahead. Legal requirements therefore impact many parts of the process.

This topic was a vital part of the review because the law is deeply embedded in clinical pathways and can act either to support safe and effective care - or, as has been raised throughout the process, can create delays and barriers that do not benefit patient safety. The Group approached this topic with a focus on ensuring that any new legal framework supports best current and future clinical practice and promotes patient safety.

The Pathways topic included a number of key areas, each of which may affect how accessible, timely, and person-centred abortion care can be provided in Scotland:

• Provision – who is legally permitted to provide abortion care.
• Place – where abortion can legally be provided.
• Conscientious Objection – the right of healthcare professionals to object to providing abortion care.
• Data and Reporting – what information is collected and how it is reported,
• Certification – the legal requirement for two doctors to certify that abortion grounds are met.
• Counselling – the role of counselling in abortion care
• Mandatory Waiting Periods – whether necessary or not
• Adults with Incapacity, Young People and Brain Stem Dead patients – how the law applies to complex and sensitive cases, including individuals who may be unable to consent.
• Positive Duty to Provide – whether there should be a legal duty on Health Boards or the Scottish Government to ensure abortion care is available.

These areas form the legal and clinical framework through which abortion care is accessed and provided. The Group’s work on this topic aimed to ensure that any legal reform enables care that is in line with evolving best clinical practice, does not ‘exceptionalise’ abortion and is centred around the needs of those accessing care, while supporting healthcare professionals to provide safe, effective care without unnecessary legal barriers.

In discussing the above topics, the Group distinguished between issues that they felt should be covered in primary legislation and those that belong in clinical guidance. Recognising this distinction and the importance of issues which may not be in primary legislation, the Group discussed the need for the Government to commission a new and specific National Clinical Guideline for Scotland to accompany any new legislation, enabling abortion providers to follow best practice.

The Group first created a diagram of the current abortion pathway (Appendix C) to visually demonstrate the points at which the law currently directly impacts a patient’s journey to accessing and receiving abortion care. In line with the overarching remit and principle to treat abortion as a healthcare matter, significant consideration was given to how abortion provision differs from other healthcare interventions, and whether these differences are medically justifiable.

6.1 Provision and Certification

6.1.1 The current law

The requirement that only doctors can provide abortion care, and that two doctors must certify an abortion at all gestations before it proceeds were, as discussed earlier, shaped by the medical, legal, social and political context of the Abortion Act 1967. Current models of healthcare emphasise patient-centred decision making, efficient service delivery and autonomy. With both shifts in workforce skills, and a huge shift to medical abortion provision, abortion care can be provided safely and effectively by a broader range of healthcare professionals, providing that they have been appropriately trained. Since 1967 there have been major changes to the role and responsibility of nurses and midwives in other areas of medicine, who now provide a wider range of tasks to meet the changing demands of a modern healthcare system.

The Group was clear that abortion provision is presently unnecessarily restricted by the legal requirement that it can only be provided (or at least overseen) by doctors. The Group noted that this requirement reflects the clinical context under which the legislation was originally drafted - when only surgical abortions were provided in a hospital. Clinical practice has changed radically, with medical abortion now overwhelmingly the most common method of abortion procedure, and one that can be safely provided by a number of healthcare professionals, including nurses and midwives. The Group also recognised that surgical abortion techniques, such as manual vacuum aspiration (MVA), can also be provided by other healthcare professionals with the appropriate skills and training. Midwives and nurses already deliver miscarriage care that involves that involves this same clinical procedure, and the Group noted that the distinction between this and abortion care has become increasingly illogical.^[104]

The requirement for two doctors to certify that an abortion meets the legal grounds set out under the Abortion Act (the ‘two-doctor rule’), can be a barrier to timely access, particularly in rural communities where it may be challenging to identify two doctors willing to sign the Certificate A (green) form. The Group felt that current certification requirements for abortions before the 24 week limit do not benefit the patient and increase workloads for providers. However, the Group also recognised that, for later stage abortions (after 24 weeks), the involvement of a second doctor is widely viewed by clinicians as valuable and supportive, particularly given the complexity of many of these decisions. In all areas of medicine, it is normal practice to discuss complex cases and difficult decisions with colleagues. The requirement can enable shared decision-making, professional reassurance, and clarity in interpreting the law.

6.1.2 International examples

With respect to the international examples, with the exception of Germany where only doctors can provide abortion, there is a clear preference towards expanding the range of healthcare professionals involved in abortion care, particularly for early medical abortion (see Appendix N). Nurses, midwives, nurse practitioners (and in Australia and Canada, pharmacists) are now able to provide or support abortion provision. In many of the jurisdictions considered, the ability to prescribe or administer abortion medication is not restricted solely to doctors, although in a number of cases this is limited to earlier gestations. There is a tendency then for laws to adopt a competence-based approach rather than defining provision by professional title.

The Group noted a similar trend in respect of the need for the number of practitioners required to agree the abortion with, in general, a need for two practitioners to discuss abortions only beyond a certain gestation, mostly 22 - 24 weeks (although 12 weeks in Ireland). In New Zealand the practitioners need not be in agreement. In the UK context, Northern Ireland allows doctors, nurses and midwives to act as medical professionals for the purpose of providing abortion. Certification and number of providers required vary by gestation and legal ground in Northern Ireland, with early abortions requiring one provider, and post-12-week abortions requiring one or two professionals depending on circumstances.

6.1.3 Stakeholder comments and Evidence Review

No stakeholder input specifically called for the retention of provisions that allow only doctor involvement, although a number of submissions argued that this ensures greater safety of abortion. This position, however, is not supported by international evidence, with the WHO’s Abortion Care Guideline recommending that nurses, midwives, and other community health workers should provide early medical abortions, that midwives should provide vacuum aspiration, and that a wide range of healthcare professionals may be involved in provision in certain settings.^[105]

With regards to the requirement for two doctors to certify an abortion, the Group reviewed a range of evidence that argues that two doctor certification is unnecessary and potentially harmful. The Advisory Group called for the removal of the requirement for two doctors to approve an abortion.

There is evidence that many doctors report discomfort with the need for two doctors to certify that one or more of the Abortion Act grounds are met, believing rather that the decision of whether or not to continue a pregnancy is one that properly belongs to the pregnant woman, particularly at earlier gestations.^[106] In some cases, doctors describe trying to conceal the need for legal certification from women, believing that they may find the legal requirements stigmatising.^[107] Indeed, many women are unaware abortion remains a criminal offence unless one of the grounds of the Abortion Act is met.^[108]

Considering the expanded scope of other healthcare professionals in providing abortion care, almost twenty years ago the House of Commons Science and Technology Committee report on Scientific Developments Relating to the Abortion Act 1967^[109] concluded that, based on the evidence from existing service delivery, nurses and midwives were already significantly involved in abortion provision and should, with appropriate training be permitted to certify abortions, prescribe abortion medication and provide early surgical abortions. The committee found no evidence that these reforms would have any negative impact on patient safety or quality of care, and the restriction to permitting only doctors to provide abortion care does not reflect the realities of modern practice.^[110]

The Shaping Abortion for Change (SACHA) study, the largest research project on abortion carried out to date within the UK, and funded by the UK’s National Institute of Health Research published a paper in 2021 titled ‘Attitudes towards the regulation and provision of abortion among healthcare professionals in Britain: cross-sectional survey data from the SACHA Study’.^[111] This provides quantitative support for these views through a stratified cluster sample survey of healthcare professionals working in a range of healthcare services including abortion services. The survey found that 65.3% of healthcare professionals supported allowing nurses to prescribe abortion medication, with many respondents calling for nurse-led clinics that empower both nurses and midwives to prescribe abortion medication directly. Several free-text comments shared throughout the paper describe the current legislation as “archaic”, and not reflective of current clinical practice especially in services that are already predominantly nurse or midwife led. A number of responses strongly supported repeal of the two doctor rule. Some respondents suggested that a single provider – whether that be a doctor, nurse or midwife – should be permitted to assess eligibility and provide care.

Kishen and Stedman (2020), writing in The Role of Advanced Nurse Practitioners in the Availability of Abortion Services,^[112] provide further analysis. They demonstrated that outcomes of early abortions provided by non-doctor clinicians are equivalent in terms of safety and efficacy to those carried out by doctors and that advanced nurse-midwife practitioners are essential in meeting service demand, particularly as fewer doctors enter abortion care.

In a review^[113] designed to assess the safety and effectiveness of abortion procedures, five studies (18,962 abortions), including one study from the USA, compared surgical abortion procedures administered by mid-level providers to those administered by doctors. Three studies (3,056 abortions), including one study in Sweden, assessed medical abortion procedures. There was no statistically significant difference in the risk of failure for medical abortions performed by mid‐level providers compared with doctors. Observational data indicate that there may be a higher risk of abortion failure for surgical abortion procedures administered by mid‐level providers, but the number of studies is small (and very few surgical abortions are done by any provider in Scotland). There were no statistically significant differences in the risk of complications for first trimester surgical abortions performed by mid‐level providers compared with doctors.

The WHO further supports the expansion of abortion provision beyond doctors. In its guidance on ‘Expanding Health Worker Roles for Safe Abortion in the First Trimester of Pregnancy’, the WHO states that appropriately trained nurses, midwives and other healthcare professionals can safely provide first trimester abortion care, where referral systems for higher-level care are in place for any complications (as is the case within the Scottish health system). The WHO emphasises that “enhancing the role of non-medical practitioners may facilitate access to safe and timely healthcare where there are shortages of specialist medical practitioners”.^[114] Other human rights-based organisations support the WHO position, with the Human Rights Law Centre stating^[115] that the two doctor rule treats women as incapable of making decisions about their bodies and should be excluded from South Australia’s reformed abortion laws.

As outlined in the House of Commons Science and Technology Committee report, there were a number of reasons behind the introduction of the two doctor rule in 1967, including to provide legal defence for clinicians and to demonstrate the seriousness of the decision to terminate a pregnancy. Again, this points to the social attitudes towards abortion at the time in which the Act was passed. The report notes, supported by the clinical expertise on this Group, that today across the UK it is not uncommon that the two doctors signing the ‘certificate A’ form do not engage with the patient themselves. With the way that ‘Ground C’ is applied, it has been argued that any abortion under 24 weeks gestation would meet the required criteria, as continuing a pregnancy always has a greater physical health risk to a patient than an abortion.^[116] With that in mind, a doctor would, in theory, always be able to make a decision ‘in good faith’ that at an abortion under 24 weeks, (accounting for more than 99.5% of abortions in Scotland in 2024) meets the criteria set out in the Abortion Act. As such, it appears to be the case that “the requirement for two signatures does not play a meaningful role in abortion practice”.^[117]

A number of major health bodies have called for the two doctor rule to be repealed. The RCOG states in its reforming abortion law position statement that the “requirement for two doctors’ signatures to authorise an abortion should be removed, enabling abortion to be provided and regulated in line with other comparable forms of healthcare where the patient’s autonomy is paramount and there is a process of informed consent.”^[118] Similarly, prior to their updated position statement calling for decriminalisation in 2024, the Royal College of Nursing published a Termination of Pregnancy Framework in 2013 which highlighted a consultation they had undertaken for submission to the Science and Technology Report. The RCN stated “ahead of its August 2007 submission to the Commons Science and Technology Committee inquiry…the RCN consulted with members working in termination of pregnancy services. Following this consultation, it was clear that for those who worked in this clinical field, the law required modernisation. The requirement for two doctors to agree that a woman meets the grounds of the Abortion Act 1967, and the prohibition on nurses and midwives prescribing early medical abortion drugs or performing early surgical termination of pregnancy were seen as outdated and in need of future consideration.”^[119]

The evidence makes clear that requiring two doctors’ signatures deviates from standard medical practice for other health conditions including major surgery, where one relevantly trained healthcare professional is usually able to obtain informed consent and carry out procedures. The Group is aware that some stakeholder organisations, including some Pro-Life and Faith groups who submitted evidence to this review, argue that abortion should be treated differently to other healthcare matters, however this position cannot be justified with regard to the safety of modern abortion care, with no clinical evidence to suggest that it should be treated differently from other medical or surgical procedures that do not require the certification of two doctors. Further, it is clear that public opinion aligns with the view that “a woman should be able to terminate a pregnancy where she decides on her own that she does not want to have a child”, as demonstrated in the 2024 NatCen British Social Attitudes survey, where 76% of respondents agreed.^[120]

6.2 Place and Regulation

6.2.1 The current law

The Group noted the findings of the evaluation on Early Medical Abortion at Home (EMAH), published in 2023.^[121] The report concluded that there was evidence of “the high effectiveness” of EMAH care in Scotland, as well as showing an incidence of complications which did not differ significantly from those associated with EMA undertaken in Scottish hospitals. This, alongside a high degree of acceptability to patients, and staff support for continuing the new model of care, “indicates that the benefits of the current flexible model outweigh any risks associated with not always having in person appointments.”^[122] It was not within the remit of this Group to consider the overall safety of EMAH, but given the outcomes of the evaluation and other clinical and international guidance pointing to the overall safety, the Group noted that the current approval in relation to EMAH and other forms of medical abortion outwith hospitals aligns with the overarching principles set out by the Group and that any consideration of the law on place should ensure that EMAH can continue to be offered.

However, the Group also observed that EMAH and other abortion treatment outwith a hospital is currently only permitted through Ministerial approval, as required under the Abortion Act 1967. The current law requires Scottish Ministers to approve each place, or class of places, where abortion care may be provided. While the Group agreed that it is appropriate for abortion care to be provided by healthcare services – either via the NHS or providers regulated by Healthcare Improvement Scotland, it noted that other comparable healthcare services do not require Ministerial approval. This legal requirement therefore ‘exceptionalises’ abortion, and the Group could identify no clinical justification for Ministerial sign-off to be necessary in approving providers. The Group did not consider there is clinical need for Scottish Ministers to approve the place of abortion provision as they do not approve it for any other health care, however complex. Furthermore, the Group raised concern that the current restrictions within the 1967 Act may limit innovation in service delivery – for instance the amount of time between licensing of early medical abortion and the agreement of Ministers to allow it at home despite standard practice around the world (20 years).

The Group’s initial view held that, while the current legal framework has permitted the provision of EMAH, legal reform may be required to enable future innovation and to ensure consistency with how other healthcare services are regulated. The Group did note that any reformed legal framework should ensure that abortion care continues to be safe and patient-centred, without unnecessary barriers that prevent the future development of services in line with clinical best practice.

6.2.2 International examples

The international examples reviewed by the Group demonstrate a range of approaches to defining where an abortion may be provided, with many jurisdictions opting for models that align with broader healthcare regulation. A number of international models do distinguish between medical and surgical abortions, and some distinguish between early and later gestation procedures. It should be noted that while these examples focus on place, legislative frameworks should be considered alongside regulations on provision – often, for example, if a registered healthcare professional must provide the service, this would intrinsically have implications for where an abortion can be provided even if it is not included specifically in a law. In some countries a tiered approach is taken, changing the level of regulation required for what jurisdictions may determine to be more complex cases.

The international examples show that there remains an emphasis on ensuring that abortion is provided in clinically appropriate and regulated environments, including early medical abortion at home, but the legislative involvement does clearly vary and shows that many jurisdictions place abortion care within standard health service regulation.

6.2.3 Stakeholder comments and Evidence Review

With the increased use of EMAH, there have been renewed calls to reconsider the regulation of where abortions can be provided. The Group considered a number of views in stakeholder submissions on how and where abortion care should take place. While the submissions reflect the wide range of views, many of the concerns raised primarily focused on service delivery model rather than on any legal regulation of place.

In relation to EMAH, a number of stakeholder submissions from Pro-Life and Faith Groups raised concerns about potential reductions in oversight and accountability of abortion service providers and deterioration in the effective management of complications if they are not identified in a timely manner, particularly in relation to EMAH. Likewise, concern was expressed that telephone consultations jeopardised the ability of the provider to detect uncertainty and, importantly, coercion.

Restrictions on where abortion can be legally provided were argued by some Pro-Choice submissions and clinicians on the Group to be a barrier to access, particularly for patients in rural or island communities, those with disabilities and caring responsibilities, younger patients or those with coercive or abusive partners, for whom accessing in-person care may be unsafe. Drawing on a close assessment of relevant clinical evidence and human rights documents, the WHO has therefore called on states to remove unnecessary restrictions on abortion provision.^[123]

There was broad agreement across submissions from all groups that abortion providers should be subject to appropriate oversight. However, most Pro-Choice stakeholders questioned whether Scottish Ministers should continue to retain responsibility for approving abortion providers or whether the role of approving providers could be transferred to an independent regulator, such as Healthcare Improvement Scotland (HIS), given that HIS already holds power to monitor registered private providers.

Pro-Choice stakeholders argued that abortion should continue to be regulated as a clinical procedure, but in a way that ensures it is in line with other procedures and regulated through existing professional organisations such as the General Medical Council (GMC) and Nursing and Midwifery Council (NMC) and existing service regulators, such as HIS for any private providers.

There is strong evidence that medical abortion is safe and effective in a range of settings, including at home and community care centres. The WHO’s 2022 abortion care guideline states that “Evidence has demonstrated that in gestational ages less than 12 weeks, pregnant persons can safely and effectively manage their own medical abortions using mifepristone and misoprostol in combination or misoprostol alone. Enabling this option can significantly improve access to safe, timely, affordable and person-centred abortion care.”^[124] This guidance notes the home as one example of where abortion can safely take place outwith a medical facility, and notes that “service delivery with minimal medical supervision can significantly improve access, particularly in restricted settings and crisis situations, as well as improve privacy, convenience and acceptability of the abortion process without compromising safety and effectiveness”.^[125] In support of this, the RCOG best practice guidance states that the “ultimate judgement regarding a particular clinical procedure or treatment plan must be made by the doctor or other attendant in the light of clinical data presented by the patient”.^[126]

The National Institute for Health and Care Excellence (NICE) has also noted that early medical abortion at home (EMAH) is safe and should be offered to women as an option.^[127] Subsequent to the NICE guidance, the Scottish evaluation into EMAH provided evidence for the safety of EMAH in Scotland up to 12 weeks gestation.^[128]

6.3 Conscientious Objection

6.3.1 The current law

The Group noted that the current legal framework for conscientious objection in Scotland is generally well understood, broadly accepted and functions effectively in most circumstances. The existing provision under section 4 of the Abortion Act 1967 allows healthcare professionals to opt out of participating directly in abortion procedures if it conflicts with what the Group understand are deeply held moral or religious beliefs. It was felt important that clinicians are not required to deliver care that they do not feel able to provide in good conscience, and that the law recognises that moral complexity of abortion care for some healthcare professionals is likely to lead to an overall more comfortable service for patients.

That said, the Group also recognised the practical implications of conscientious objection for access to abortion care and for service delivery, particularly in relation to later stage abortion care where provision is already limited in Scotland. In these contexts, the impact of staff choosing to opt out of provision, and an unwillingness at a managerial level to tackle the issue and extent of conscientious objection has undoubtedly impacted the ability of patients to access the care they need in the country in which they live. The Group notes that with sufficient and accessible training for abortion care, these practical challenges can be manageable at individual Health Board levels through service design and staffing policies that ensure that patients are able to receive timely care.

One particular area of concern for the Group with regards to the current law on conscientious objection is the absence of a legal duty to refer – in other words a requirement for someone who conscientiously objects to refer an individual seeking abortion to someone else who can help them. While this does not currently cause widespread access issues due to self-referral models adopted by abortion providers within Health Boards, there may be instances, particularly in rural or island areas of Scotland, where patients visit a GP and face barriers to access if their local practitioner conscientiously objects.

Furthermore, it is not possible to predict how service design and delivery may change in the future. The Group therefore considers that this is an area that merits consideration.

6.3.2 International examples

Across all international jurisdictions, there is broad recognition of the right for clinicians to object on moral or religious grounds, with a number of countries attempting to balance this with patients’ rights to access timely care.^[129] Many jurisdictions, but not all, have therefore introduced a legal requirement to refer or provide information to patients seeking care. Notably, New Zealand’s legislation includes specific guidance on the logistics of referral, requiring the clinician who objects to consider geography, timing and availability when directing patients to another service. It was noted that within the Scottish context, patients are already able to self-refer to abortion services. Consistently across all reviewed jurisdictions, conscientious objection does not apply in emergency situations where the life or health of the pregnant person is at risk.

6.3.3 Stakeholder views and evidence review

The Group recognises that conscientious objection remains a sensitive area of abortion care and abortion law, raising questions regarding how best to strike the balance between clinicians’ individual moral autonomy and patients’ ability to access healthcare services they require. As part of this review, the Group has considered a range of views and evidence regarding conscientious objection and how it ought to be retained or redefined within a future legal framework to protect this balance. This topic was the subject of a significant amount of stakeholder comment, demonstrating the importance of ensuring that any amendment to conscientious objection law is considered carefully and decisions are made on the basis of not only empirical evidence, but with significant regard to the interests of those providing healthcare, and the patients accessing it.

Many stakeholder submissions emphasise that conscientious objection is not a matter of professional preference, but a fundamental expression of moral or religious belief. A number of Pro-Life stakeholder submissions emphasised the legal right to conscientious objection being anchored in Article 9 of the European Convention on Human Rights (ECHR),^[130] which protects the freedom of thought, conscience and religion. Others have therefore argued that there is no need for a specific statutory provision in a revised abortion law, as rights of religious refusal of treatment are already protected under Article 9. Indeed, making statutory provision for abortion would perpetuate the exceptionalisation and stigmatisation of abortion care.

While there is a general interest for both patient and providers in not compelling individuals to provide care that conflicts with their moral values, there remains a need to ensure that conscientious objection does not impede access. This is clearly set out in the WHO abortion care guidelines.^[131] Therefore, there are some exceptions to a conscientious objection clause to be considered.

There may be circumstances within the existing law under which the right to conscientiously object would obstruct safe provision. For example, in cases where a person is employed specifically to provide abortion services and proceeds subsequently to declare conscientious objection, there is a risk to sufficient and safe staffing levels. In her 2017 book titled ‘Arguments about Abortion: Personhood, Morality and Law’, Dr Kate Greasley therefore argues that “if safe abortion is to be accessible, then at the very least those who are employed for the sole purpose of carrying it out must be willing to do so.”^[132]

A number of Pro-Life and faith-based stakeholders advocated for an expansion of conscientious objection beyond direct participation in abortion and propose that with the expansion of medical abortion services, conscientious objection rights should be extended. They argue that any involvement in the process of abortion would make them “accomplices” to what they believe to be a fundamentally immoral procedure and places many professionals in an “invidious position”.^[133] It has been proposed within these stakeholder submissions that any future legal drafting of an updated Abortion Act should reflect section 38 of the Human Fertilisation and Embryology Act 1990 which states that “no person who has a conscientious objection to participating in any activity governed by this Act shall be under any duty however arising, to do so”.^[134]

In the UK Supreme Court case, Greater Glasgow Health Board v Doogan [2014] UKSC 68 clarified the scope of conscientious objection under s 4 of the Abortion Act 1967. The court ruled that the right to conscientious objection is limited to direct, hands-on participation in abortion procedures. This means that tasks such as delegating, supervising, or supporting staff involved in abortions do not fall under the protection of conscientious objection. This decision has significant implications for the roles and responsibilities of senior healthcare staff.

One submission observed that the interpretation of the law as demonstrated in the Doogan case risks excluding capable individuals from the profession, particularly those whose conscientious beliefs were previously accommodated, leading them to leave their jobs or retrain. It is important to note that healthcare providers with an objection to abortion do not need to choose to specialise in this area of practice. The RCOG, for example, has an understanding with the Department of Health that if abortion care is one of the duties of a post that fact should be included in the job description and in the job advertisement.^[135] The RCOG further advises trainees considering a career in Obstetrics and Gynaecology to discuss with the training director any concerns they may have about abortion before embarking on a training programme.^[136] The CSRH has a similar document, for both doctors and nurses training in the specialty.^[137] All these advisory documents contain provision for individuals who have a ‘change of heart’ with regard to abortion care once in post. In practice, the clinicians in the Expert Group noted that it is rare for individuals to leave their clinical practice due to administrative tasks surrounding abortion care.

In the UK the General Medical Council, in Personal Beliefs and Medical Practice permits refusal to participate in the abortion procedure itself but not in pre- or post-abortion care, advice, or referrals.

In a recent study, the following actions were viewed as constituting ‘no direct involvement in abortion’: consultation/advice, booking women in, post abortion care. ‘Partial involvement’ involved the following: referring, supporting the woman through the process, medical practitioner agrees and signs form, supervising others, seeking second signature on form. ‘Direct involvement’ was understood as involving ‘inducing the abortion, performing feticide, conducting labour and delivery and performing operation (e.g. curettage). While it was recognised that there was a reasonable allowance made to express a conscientious objection, there were some difficulties expressed by healthcare professionals in doing so in practice, particularly in relation to requirements set out in employment contracts.^[138]

In the case of pregnant women seeking to access abortion services, the impact of healthcare professionals expressing a conscientious objection are a cause for concern. One recent study drawing on empirical research findings in England showed that pregnant women experienced inconsistent communication and referral practices arising from the expression of a CO to abortion by healthcare professionals, with some left to navigate the system alone. In the circumstances, it was suggested that further reforms were required to ensure transparency in CO declarations and more seamless referral systems, which better balanced the rights of objectors with patients' rights to access abortion care.^[139]

In R.R. v Poland, the European Court of Human Rights held that where healthcare professionals may have a right under domestic law to conscientious objection, “states are obliged to organise the health services system in such a way as to ensure that an effective exercise of the freedom of conscience of health professionals…does not prevent patients from obtaining access to services which they are entitled.”^[140]

It should also be noted that in a range of jurisdictions, such as Sweden, Finland and Iceland, CO on the part of healthcare professionals in public healthcare settings is not recognised under law.

A notable recent legal challenge to this position arose in the case of Grimmark v Sweden (Application no. 43726/17). In this case, the applicant complained under Article 9 (freedom of thought, conscience and religion) of the European Convention on Human Rights that, by prohibiting her work as a midwife, the Swedish authorities had interfered with her rights under Article 9 ECHR. The European Court of Human Rights found that the claim was ‘ill-founded’, and it was dismissed.

While there has been concern expressed by some academic commentators at the failure on the part of the Court to provide a more detailed analysis, other commentators have observed that the judgment strengthens the position that the refusal by healthcare professionals to carry out healthcare services, including abortion services, is not a human right.^[141]

There is also debate on whether professionals who conscientiously object should be legally required to refer patients to another practitioner. At present, NHS contracts require anyone exercising their right to refusal under that section to make ‘prompt referral to another provider of primary medical services who does not have such conscientious objections’.^[142] According to the British Medical Association and General Medical Council guidelines, objectors should even, in some instances, arrange the appointment for the patient with a non-objecting doctor. Some submissions from Pro-Life organisations argue strongly against such a requirement, again arguing that making a referral amounts to facilitating an abortion and risks violating a conscientious objectors’ moral judgement. Some stakeholders propose that referrals should only be made by a third party, such as the Health Board or a designated service, thereby protecting conscience without preventing care. In practice in Scotland, the vast majority of patients self-refer to an abortion service and it would therefore be for the Health Board organising the service to ensure that the patient has prompt access to a healthcare professional who does not conscientiously object. As such, within Scotland, it does not generally impact individuals’ ability to access services. Even so, there is a significant amount of literature which accepts or proposes that referral, in circumstances where the first clinician has a conscientious objection, is necessary to avoid obstructing access to care. The WHO has long urged states to take steps to ensure that ‘conscientious objection’ does not undermine access to abortion in practice.

D.W. Brock, writing on conscientious refusal,^[143] points to two further studies^[144],[145] that highlight how refusals to refer patients or the deliberate provision of misleading information—intended to deter or block access to abortion—can lead to delays in care. Under international human rights law, healthcare providers who object to abortion on conscience grounds are still required to refer patients elsewhere. This obligation is designed to prevent conscientious objection from becoming a barrier to abortion access. However, he notes that regulating conscientious objection is complex. In many countries, the law either does not address it or adopts what Brock describes as the "conventional compromise": allowing providers to object while attempting to regulate or limit the impact on women's health and rights. This compromise typically includes defining who may object (usually only those directly involved in care), what must be done in the event of an objection (often requiring a referral), and when objections are not allowed (such as in emergencies). Despite these legal frameworks, the studies show that such provisions are not always followed in practice. Professional medical organisations often support this compromise, emphasising that healthcare professionals must inform patients about the availability of abortion and refer them to another provider who can deliver the service.

6.4 Data and Reporting

6.4.1 The current law

The Group strongly valued the role of data collection in abortion care and noted the importance of the annual abortion data publications produced by Public Health Scotland (PHS). The Group recognised that these publications provide population-level overviews of abortion provision in Scotland, including information on gestation, method, age, area, deprivation category and more. This is helpful for understanding trends in service delivery, but also for monitoring and demonstrating the need for, and effectiveness of, abortion care in Scotland. The data also offer some insight into accessibility of care and enable evidence-based decisions on improving abortion care along with other sexual health interventions, such as access to contraception. However, the Group did consider carefully whether the requirement for abortion data collection really does need to be included within legislation. Alongside this, as discussed earlier, the Group considered that the legal requirement to notify the Chief Medical Officer (CMO) of every abortion is clinically unnecessary. While other healthcare interventions are subject to standard data collection, abortion care is unique in the legal requirement for a statutory notification to the CMO. The Group felt that this requirement reinforced the idea of abortion being distinct from other forms of care, potentially adding stigma to a procedure that is routine and safe.

6.4.2 International examples

The international examples reviewed by the Group show variation in the legislative requirements for data collection and reporting of abortion data. All jurisdictions do appear to emphasise the importance of monitoring abortion services as part of a broader oversight of healthcare systems. While some jurisdictions do so through including reporting obligations directly in legislation, others rely on professional practice standards to guide data collection. Northern Ireland retains the requirement to notify the Chief Medical Officer within 14 days of performing an abortion.

6.4.3 Stakeholder comments and evidence review

A number of Pro-Life and Faith Groups stakeholders argued that a notification process should remain in place in order to monitor safety. Some feel that the current system is not as robust as it should be arguing that there should be a requirement to produce an annual report on the data collected which includes transparency about the grounds on which abortions are sought; and in the case of abortions on the grounds of disability, the conditions for which they are sought and detailed data on complications, Other Pro-Life organisations go further proposing ‘wide-ranging, connected, and longitudinal data to monitor health benefits, and risks of harm’ including harm to mental health, the effects on long term fertility and subsequent pregnancy outcomes.

PHS routinely collects and reports annually on abortion statistics including grounds and fetal anomaly.^[146] With regard to complications of abortion, although not routinely published, the evaluation of EMAH was able to look at complication data and found that there were no indications of change in the low rate of serious complications before and after the introduction of EMAH.^[147] Health Boards in Scotland are able to monitor complications using CHI numbers. In Scotland record linkage can be used to explore any long term effects which may be associated with abortion, but this is not done routinely. There are many publications that explored long term risks to, for example, fertility, pregnancy outcome and mental health, all of which are reassuring.^[148]

6.5 Counselling

In this report counselling is distinguished from information-giving and from the discussion which takes place in all medical consultations in which the health professional routinely discusses with the patient the risks and benefits of treatment as well as the alternatives. Clinicians on the group are clear that this forms part of every abortion consultation with clear and accurate information being given verbally as well as in a written leaflet and/or through an online video. The WHO notes “some individuals may wish to receive counselling before or after the abortion. Counselling is more than information provision but rather an interactive process through which someone voluntarily receives information, support and non-directive guidance… Counselling should always be voluntary.”^[149]

6.5.1 The current law

The Group noted that there is no reference to counselling within the Abortion Act 1967, and that its provision is determined by clinical practice rather than by legislative requirements. Clinicians in the Group provided helpful insight on the current counselling pathways available in Scotland, noting that supportive, non-directive counselling is routinely offered to patients who request it or who are identified as potentially benefiting from it - either before or after the abortion.

6.5.2 International examples

The majority of international examples reviewed do not mention counselling in their primary legislation, thereby not mandating counselling in advance of an abortion and leaving any counselling arrangements to service providers. For those who do specifically refer to counselling within legislation, a range of approaches are adopted. On one end of the spectrum, Germany’s model mandates compulsory counselling that emphasises the value of fetal life and is legally required before an abortion can be performed – although this model has been widely criticised internationally for compromising patient autonomy. In contrast, New Zealand and South Australia promote a non-directive, optional model that legally requires counselling to be available while respecting individual decision making on whether counselling is required.

6.5.3 Stakeholder views and evidence review

A number of the Pro-Life and Faith Groups advocated for formal pre-abortion counselling with concerns being raised around women who are uncertain of their decision to proceed with an abortion. The Group recognised that a few patients, following the routine consultation, who appear to be distressed or uncertain about their decision do require further discussion (and time), and all Health Boards in Scotland have a pathway to refer for counselling where this is clearly required or requested. Patients can also contact counselling services themselves if they do not wish to access this through a Health Board. The Group considered the evidence on decision-making. There is a significant amount of robust evidence that most patients seeking abortions are confident in their decision. A 2015 Scottish study entitled "Do women seeking termination of pregnancy need pre-abortion counselling”^[150] concluded that few women currently use pre-abortion counselling services in the setting under investigation, stating that they are already sure of their decision regarding termination of pregnancy and do not require additional support. Furthermore, the authors concluded that policies aimed at mandatory counselling are a waste of resources and contrary to women's wishes. They add that healthcare professionals working in abortion settings should, however, be aware of risk factors for poor psychological outcomes post-abortion so that they can specifically target counselling services to these women. A retrospective case note review was conducted in 2013 in Lothian^[151] seeking to determine the proportion of women for whom a pregnancy was clearly unintended (based on the London Measure of Unintended Pregnancy score^[152]). The authors concluded that almost all women requesting an induced abortion had a clearly unintended pregnancy, were certain of their decision and did not wish further counselling. They suggested that a simple self-completed questionnaire could identify those who may benefit from further discussion.

A number of the Pro-Life and Faith Groups advocated for a more formalised, national counselling process, one submission recommending that the abortion pathway should include counselling as standard, noting that this counselling should be provided by someone independent of the abortion service. One submission called for the Group to recommend that the Scottish Government introduce a centralised resource, accessible to all women, that comprehensively covers all available options including information on continuing with a pregnancy, adoption and accessing abortion services. Such an information resource is already in place on the NHS Inform website which provides detailed information on how to access abortion in Scotland, what is involved in the assessment, how abortions are performed, the risks and side effects and what happens after an abortion. NHS Inform also provides information on emotional support, mental well-being in the context of abortion as well as information on post-abortion contraception.^[153]

While a small number of women may require additional emotional support after an abortion, most women who terminate a pregnancy do not experience mental health problems. A review of the evidence published in 2009^[154] evaluated empirical research addressing the relationship between induced abortion and women’s mental health. They concluded that the relative risk of mental health problems among adult women who have a single, legal, first-trimester abortion of an unwanted pregnancy is no greater than the risk among women who deliver an unwanted pregnancy. Evidence did not support the claim that observed associations between abortion and mental health problems are caused by abortion per se as opposed to other preexisting and co-occurring risk factors. Another more recent study set out to determine the impact of abortion legislation on mental health during pregnancy and postpartum and assess whether pregnancy intention mediates associations.^[155] Using longitudinal data from nurses in the USA in 2010–2017 (4,091 participants, 4,988 pregnancies) they quantified associations between restrictive abortion laws and stress, depression symptoms during and after pregnancy, and depression diagnoses after pregnancy. Restrictive abortion legislation was statistically associated with unintended pregnancies which were, in turn, associated with increased risks of stress and depression. The clinicians on the Expert Group agreed that while there may be a very small number of women who would benefit from support after an abortion this can be handled by existing services including UK-wide charities with specialist experience in this area for example ‘AbortionTalk’ a UK wide telephone-based service.

A number of Pro-Life and Faith Groups argued that including counselling as part of a standard abortion care pathway would improve opportunities to detect potential coercion. Reproductive coercion is defined as any form of behaviour that intentionally controls another person’s reproductive choices.^[156] These behaviours include sabotaging contraception, for example, by removing or damaging a condom, or throwing away oral contraceptives and forcing a person either to continue or to terminate a pregnancy. The incidence of reproductive coercion varies around the world but, while there are some data from the UK on coercion among women attending maternity services, there are no data relating to abortion. The clinicians on the Expert Group agreed that it is standard practice in Scotland to ask women seeking abortion whether they are sure of their decision, whether anyone else is aware of the pregnancy or abortion plans and whether they feel pressured to seek an abortion. However, in their experience, coercion to have an abortion is rare. The NICE guidance^[157] emphasises the need, in the context of telephone consultations, to check that the person can speak privately and is seeking abortion voluntarily. Asking about coercion is also not standard practice in the antenatal consultation as part of the maternity care pathway.

Many national and international clinical bodies advise against mandatory counselling before abortion. The 2019 NICE guidelines explicitly state that women should not be required to undergo compulsory counselling, instead recommending that abortion providers should offer or refer patients for support only if they request it^.[158] . Similarly, RCOG affirms in its Clinical Guideline that patients who are certain of their decision to proceed with an abortion should not be subjected to mandatory counselling (recommendation 6.3), noting that “most women who undergo induced abortion are certain of their decision”,^[159] but recommends that voluntary counselling and support pathways should be clearly accessible to those who do want them (recommendation 6.4). The WHO abortion care guidelines further support NICE and RCOG, with their Service Delivery Recommendation 5^[160] on provision of counselling stating that counselling must be entered into freely and voluntarily, i.e. it should not be mandatory and the right to refuse when offered be respected. WHO also recommends that counselling should be made available and accessible to those who want to receive it, emphasising the need for person-centred counselling tailored to the needs to the individual.^[161]

The Centre for Reproductive Rights published a fact sheet on counselling requirements in Central and Eastern Europe, referencing a number of international human rights bodies who oppose mandatory counselling including the CEDAW and the ICESCR. They state that “in and of themselves mandatory counselling and information requirements jeopardize women’s human rights by forcing women to undergo counselling or receive information which they may not want and calling into question women’s decision-making authority and agency.”^[162]

The range of evidence available upholds a position that is strongly against the imposition of mandatory counselling in Scotland. Much of the evidence supports robust, staff-led processes that can identify individuals who may benefit from counselling without mandating it for all, which can instead act as a barrier for those patients who are confident in their decision. Both NICE and RCOG highlight the importance of compassionate, patient-centred counselling that remains voluntary.

6.6 Mandatory Waiting Periods

Mandatory waiting periods – legal requirements that enforce a fixed period delay between a request for an abortion and the procedure itself – are implemented in a number of countries.

6.6.1 The current law

The Group noted that there is no reference to mandatory waiting periods in the Abortion Act 1967. The Group considered evidence on mandatory waiting periods, as set out in the evidence review section of this topic.

6.6.2 International examples

A mandatory reflection period to insist that a woman takes time before finalising a decision was abolished in France in 2022. In Germany there is a 3-day waiting period required after counselling. None of the other countries reviewed has a mandatory waiting period.

6.6.3 Stakeholder comments and evidence review

These mandatory waiting periods have been framed by their advocates as an opportunity to encourage reflection and to support informed decision making. A number of Pro-Life and Faith Group stakeholder submissions emphasised the importance for patients not to feel rushed into making a decision on whether to proceed with an abortion, and the need for informed choice. The clinicians in the group made it clear that women requesting abortion are routinely offered more time to make a decision if they need it. They also pointed out that EMAH allows women to take the medication at home when it suits them, allowing them the choice to delay inducing the abortion if they so wish.

A number of clinical guidelines and international human rights standards view these waiting periods as unnecessary and potentially harmful. The National Institute for Health and Care Excellence (NICE), in its abortion care guideline NG140 (1.1.8)^[163] states unequivocally that patients should not be required to undergo a compulsory period of reflection before having an abortion. Instead, providers should offer support and further decision-making time only if requested by the patient. This reflects an understanding that, as discussed earlier, people accessing abortion care are often already confident in their decision, and that imposed delays are not clinically justified. The Royal College of Obstetricians and Gynaecologists (RCOG) echoes this position^[164], stating that delays caused by unnecessary processes can increase clinical risk and emotional distress without improving decision quality and highlighting that an abortion is safer the earlier it is provided^[165] (although that is not to say that abortions provided at later gestations are unsafe). It would therefore be counterproductive to enforce waiting periods for patients who are certain of their decision. Both organisations, in short, suggest that enforced mandatory reflection does not add clinical value and may cause harm, with patients who are unsure offered additional time and support where it is wanted or needed.

The Centre for Reproductive Rights (CRR) offers a comprehensive critique of mandatory waiting periods in its 2015 fact sheet on "Mandatory Waiting Periods and Biased Counselling Requirements in Central and Eastern Europe".^[166] The CRR outline several concerning consequences of mandatory waiting periods. Along with delays to care, they note that no evidence was found that waiting periods result in more “informed” decisions. In fact, many patients already experience emotional or logistical strain by the time they access services, viewing any additional forced wait as unnecessary and patronising. Importantly, the CRR also point to the potential of an increased risk of harm particularly for people in coercive relationships or facing unsafe living conditions. For these individuals, forced delays may increase their vulnerability and endanger their safety.

A number of international human rights bodies, including the CEDAW Committee^[167] and the European Court of Human Rights^[168] have criticised mandatory waiting periods as violations of women's rights to health, privacy, non-discrimination, and autonomy. While it is clear that patients should be given time to make an informed decision, this objective can be met through voluntary reflection periods and tailored clinical care, without resorting to statutory delays.

6.7 Young People

The Group noted that there are no specific references to young people in the Abortion Act 1967. However, clinicians noted that with regards to EMAH, patients under 16 are under current guidance in Scotland expected to receive an in-person consultation and also to take their medications in hospital unless appropriate support is in place to enable them to take the medication at home.

6.8 Adults with Incapacity

As things stand, pregnant women in Scotland who are deemed to lack mental capacity can legally access abortion, but the process requires medical certification under section 47, Adults with Incapacity Act 2000 (AWIA), to confirm the treatment is in the person’s best interests. In cases of abortion, regulations made under section 48 AWIA requires that an independent opinion be obtained from the Mental Welfare Commission and/or that a court order be obtained. Overall, it is designed to ensure that safeguards are in place to ensure decisions are made in the benefit of the individual.

The current law in this area is now considered outdated, particularly in light of the increased emphasis placed on the importance of adhering to a human rights approach as embodied in the UN Convention on the Rights of Persons with Disabilities.

This was recognised in the findings of the Independent Review of Mental Health and Incapacity Law in Scotland.^[169] In its recommendations, the Review emphasised the need to facilitate reform that ensured that people assessed as lacking capacity have access to decision-making processes that align with their human rights. The Scottish Government has welcomed the recommendations, offered a detailed response, and reform is currently underway.

The Group supports a human rights-based approach to women deemed to lack capacity in terms of accessing abortion services. A more joined-up approach between mental capacity and abortion laws in Scotland would also assist in supporting a human rights-based approach which ensures access to timely and suitable abortions services for pregnant women deemed to lack capacity.

While recognising that it is important that suitable safeguards are put in place, a flexible case-by-case approach on an individual basis would also be welcomed, with support provided by independent advocates, and in circumstances where mandatory courts orders for accessing abortion services were not required.

6.9 Patients with Brain Stem Death

There is also no clear statutory framework in Scotland governing the provision of abortion where a pregnant patient is brain stem dead. As a result, providers are required to navigate these rare but complex cases using general legal principles.

How best to treat a pregnant woman who has been assessed as being brain stem dead raises a range of contested ethical and legal issues. While there have been some high-profile cases in this area in countries such as the United States, there is very little academic scholarship or case law in the UK on the issue.

In general terms, UK courts have recognised that the decision to withdraw life-sustaining treatment from a patient in a persistent vegetative state, for example, should be made in the best interests of the patient, even when they are unable to make decisions themselves. This may involve considering their quality of life and any previously expressed wishes. There is no requirement for court approval to be sought for withdrawal of life-sustaining treatment in these circumstances, provided that there is agreement as to what is in the best interests of the patient, in addition to ensuring any relevant mental capacity laws and professional guidance have been followed.

If the pregnant woman is assessed as brain stem dead in accordance with the Code,^[170] then withdrawal of treatment may take place even if it results in the death of the fetus, without engaging the law on abortion. If no clinical diagnosis of brain stem death can be made in accordance with the Code, then a clinical assessment of what treatment is appropriate should be made on a case-by-case basis, based on the best interests of the pregnant woman. In individual circumstances, account may need to be taken as to whether the pregnant woman had made any relevant advance directives or had expressed specific values or beliefs in relation to the provision of such treatment. In the event that no agreement can be reached on what constitutes the pregnant woman’s best interests, then recourse to the court may be necessary in the circumstances.

6.10 Positive Duty to Provide Abortion Services

The Group noted that there is currently no legal duty in Scotland requiring individual clinicians, Health Boards or the Scottish Government to provide abortion care, nor is there any legal obligation to ensure that abortion services are available across all gestations. The Abortion Act 1967 permits abortion on certain legal grounds, but the Group considered that this does not guarantee that services will be accessible. This is particularly relevant in Scotland for patients with complex needs or those requiring care at later gestations.

In practice, the Group considered that a lack of duty to provide may have contributed to variation in service delivery across Scotland, particularly in relation to abortions between 20 to 24 weeks’ gestation. While abortion up to 24 weeks is legally permitted under the current legal framework, there is no routine access to care beyond 20 weeks within Scotland, except for cases of fetal anomaly, and most patients seeking abortion at later gestations under Ground C or D are currently referred to services in England.

A similar obligation is currently in place in the Northern Ireland context, where the Secretary of State for Northern Ireland is under a legal obligation to implement the recommendations of the CEDAW Report into abortion in Northern Ireland, including providing women with access to high-quality abortion and post-abortion care in all public health facilities. This obligation was cited by the Secretary of State in undertaking actions to commission services when the then-government declined to do so and was used by the Northern Ireland Human Rights Commissioner in their application to court regarding the failure to properly commission abortion services over an 18-month period between 2019 and 2021.^[171] France has the right to access abortion written it’s codified constitution, providing a means to challenge state failings to deliver accessible abortion care.

The Group decided that the lack of any statutory or regulatory requirement to ensure provision should be considered further.

6.11 Conclusions and Recommendations

6.11.1 Provision

The Group reviewed the evidence on the safety, effectiveness and acceptability of abortion care being provided by a wide range of healthcare professionals beyond doctors. Across the literature, and the international examples, there is consensus that abortion care can be safely and effectively delivered by a variety of professionals, including nurses and midwives, providing that they have the appropriate training. This is endorsed by WHO and reflected in recent reforms that have been carried out in a range of jurisdictions including a number of Australian States, New Zealand and Northern Ireland where a broader cadre of healthcare professionals now deliver and support abortion provision safely and effectively. The Group also noted midwives and nurses already provide clinically comparable care in Scotland, such as management of miscarriage, without legal restriction.

The Group agreed that, while abortions beyond 24 weeks gestation may require more complex decision making and therefore collaboration with other healthcare professionals, this does not necessarily require restriction to doctors. The crucial requirement is that any clinician providing abortion care at any gestation is appropriately trained and competent, in line with clinical standards that are in place to ensure safe provision in other areas of healthcare.

The Group therefore recommends that an updated abortion law should allow any appropriately trained healthcare professional to provide abortions. The definition should be set out in regulations, enabling it to be updated as practice, skills, and training frameworks develop. This ensures clinical flexibility and futureproofing, while still focusing on the overall safety of the procedure. It is noted that ‘appropriately trained’ would account for a range of scenarios and, for example, should allow a qualified nurse or midwife to provide vacuum aspiration (VA), but not necessarily other allied healthcare professionals.

Recommendations

1. Any appropriately trained registered healthcare professional should be able to provide abortion care at all gestations.

2. Healthcare professional should be defined in regulations, rather than in primary legislation.

6.11.2 Certification

On certification, the Group considered that the current legal requirement for two doctors to certify that the legal grounds for an abortion are met now functions predominately as an administrative barrier and adds little clinical value for abortions under 24 weeks gestation – and it is now at odds with modern medical practice and patient autonomy. Considered alongside the recommendation that there should be no legal grounds for abortions under 24 weeks gestation, there should be no requirement for two doctors to certify an abortion at those gestations. Stakeholders highlighted that no other comparable healthcare requires two doctors to sign-off before it can proceed, and that healthcare should be governed by clinical guidelines and patient consent rather than statutory certification. The RCOG and BMA have also reiterated support for the removal of certification requirements.

The Group appreciates that clinicians involved in later stage abortions, particularly those over 24 weeks, value consultation with other professionals when making what can sometimes be complex decisions. It is recommended that two healthcare professionals agree that an abortion would be appropriate after this gestational limit.

The Group considered the New Zealand model, whereby a consultation with a second professional is mandated before a later gestation termination can be authorised but agreement between the two is not required. However, given the particular complexity and sensitivity of these cases, it felt that there should be agreement between the two healthcare professionals that an abortion is appropriate in all the circumstances (except in an emergency). It is important to note that in line with current law this should not apply in emergency situations, and where an abortion is immediately necessary to save the life or prevent permanent grave injury to the patient, a healthcare professional should not be required to seek agreement from a second professional.

While two doctors must agree in these circumstances, the Group recommend that guidelines should set out what information should be recorded by providers in the patient’s medical records rather than via formal statutory certification. Therefore, there should not be a need for Regulations to set out the information that must be recorded (as there is currently in the Abortion (Scotland) Regulation 1991). This is in line with provision of other healthcare services.

Recommendations

1. The requirement for two doctors to certify an abortion before 24 weeks gestation should be removed

2. Two healthcare professionals should agree that an abortion is appropriate after 24 weeks gestation, before proceeding with the abortion (except in emergencies).

3. There should be no formal certification requirements at any gestation, with decisions recorded in medical records

6.11.3 Place

At the time the Abortion Act came into force, the primary ‘mischief’ the bill was seeking to address was women resorting to illegal abortion as a result of lack of access to safe, legal abortion in the formal healthcare system. As noted in the introduction to this report, illegal abortion had – by the time the bill was passed – become the top cause of avoidable maternal mortality in the UK, with women often presenting with sepsis after procedures by illicit providers. The provision, therefore, of a requirement for licensed clinics and NHS hospitals was to protect women’s health from the primary danger posed to it at that time.

In 2025, we are no longer in this position. Abortion is safe, largely accessible, and publicly funded. Women are able to present to hospitals for follow-up care where required. And most fundamentally, abortion is no longer a serious surgical procedure requiring a stay in hospital, but predominantly self-managed by women in their own homes via safe and effective medication.

At the same time, regulation and monitoring of healthcare services has progressed immeasurably since the 1960s. Non-hospital services need to be registered with Health Improvement Scotland, regular inspections and revalidation of medical and nursing professionals ensure that all healthcare is subject to the type of monitoring that the Abortion Act sought to introduce only for abortion care in 1967. The need for abortion-specific restrictions, therefore, is significantly less.

As a result of these developments, the Group agreed that there is no clinical reason to stipulate within legislation where abortions can take place, and therefore no need for Scottish Ministers to approve any place for abortions. Such matters should instead be covered in clinical guidelines, as for other healthcare procedures.

In order to tackle concerns around abortions taking place in unregulated premises, the Group consider that the law should stipulate organisations that abortion can be provided by – an NHS provider or a private provider registered with Healthcare Improvement Scotland (HIS). The Group agreed that while HIS should regulate any private provider, this should only be specified in primary legislation if there are circumstances not covered by existing legislation (such as the provisions in National Health Service (Scotland) Act 1978 (as amended).

Recommendations

1. Legislation should not stipulate where an abortion should take place but should state that abortions must be provided by an NHS provider or a private provided registered with Healthcare Improvement Scotland.

2. Further consideration should be made by the Scottish Government on whether existing provisions to ensure private providers are regulated are sufficient. If deemed so, no abortion specific legislation should be required.

6.11.4 Counselling

Based on the variety of evidence and views submitted, the Group recognise the importance of ensuring that all patients accessing abortion services are offered the opportunity for counselling where required, noting that this should be person-centred and respectful of individual circumstances and preferences. The evidence highlights that while the majority of patients seeking an abortion are confident in their decision, a small proportion may benefit from additional support, and it is vital that this remains available.

Stakeholder submissions reflected this, with several organisations advocating for accurate, clear and supportive information to be provided to patients. Both NICE and RCOG have issued guidance that states that counselling should not be mandatory, but that it should be available for those who seek it. This is consistent with a rights-based approach to abortion care which prioritises informed choice, but also patient autonomy.

The Group carefully considered models, such as those adopted in New Zealand and South Australia where the offer of counselling is a legal requirement, while the decision to accept it remains with the patient. It is acknowledged that these models do ensure that support is available, without mandating and increasing barriers to care. However, the Group considers that existing service delivery pathways are the most appropriate mechanisms for ensuring that counselling can remain a core part of abortion care, without compromising access.

The Group concluded that counselling should indeed be routinely offered as part of best practice abortion care but managed through clinical guidance and standards rather than embedded in primary legislation. This approach allows for flexibility as service models evolve and avoids creating legal rigidity in what should ultimately be a matter of clinical judgement and patient preference. Concerns were raised that embedding a legal requirement to offer counselling could risk formalising care pathways that are then difficult to update over time.

Recommendations

1. The Group recommends that mandatory counselling should not be included in abortion legislation.

2. It is recommended that clinical guidance, rather than legislation, should state that there should be timely access to counselling available for patients who wish to access it.

6.11.5 Mandatory Waiting Periods

All the evidence suggests that the vast majority of women in Scotland are certain of their decision to have an abortion. For those who wish for more time to decide or further discussion, provision is made for that to happen. Mandatory waiting periods serve no clinical purpose but only delay the start of treatment. The Group therefore recommends that mandatory waiting periods before an abortion could take place should not be included in any potential legislation.

Recommendations

The Group recommends that mandatory waiting periods should not be included in abortion legislation.

6.11.6 Conscientious Objection

The Group considered conscientious objection thoroughly, acknowledging the overwhelming stakeholder view, including from clinical bodies, that the overall principle of conscientious objection should remain. The Group recognises the deeply held moral and religious views in the context of abortion, and the importance of the right to object for those who do not wish to provide these services. However, the Group equally acknowledge that careful thought must be given to the impact of conscientious objection on those seeking to access abortion services. The Group agreed that the principle of conscientious objection should remain in any reformed abortion law but wish to recommend ways that the right to object can be improved to align with current practice, and to ensure that unnecessary barriers are not put in place for patients.

With regard to wording in section 4(1) of the Abortion Act which states that ‘no person shall be under any duty, whether by contract or by any statutory or other legal requirement to participate in any treatment authorised by this Act to which he has a conscientious objection’, the Group considered that ‘by contract’ should be removed. This would restrict people applying for roles which make clear abortion treatment is a significant/core part of the role and later identifying that they have a conscientious objection if they had not raised it during the recruitment process.

The inclusion of a duty on those with conscientious objections to refer patients on to somewhere they could be offered help with access to an abortion in an updated conscientious objection clause to more effectively balance the rights of individual healthcare professionals with the rights of women to access abortion care. This is in line with views of the professional organisations.

Recommendations

The Group recommends that this provision should remain similar to the current legislation, with a number of amendments:

1. With regard to wording in section 4(1) of the Abortion Act which states that ‘no person shall be under any duty, whether by contract or by any statutory or other legal requirement to participate in any treatment authorised by this Act to which he has a conscientious objection’, the Group recommend that ‘by contract’ should be removed.

2. An inclusion of a duty on those with conscientious objections to refer patients on to somewhere they should be included in an updated conscientious objection clause.

6.11.7 Data and Reporting

The Group felt that the requirement to notify the CMO of each abortion that takes place is anachronistic and serves no clinical purpose yet continues to exceptionalise and stigmatise abortion. It therefore recommends that there should be no statutory duty to notify the CMO or any other body about numbers of abortions.

However, the Group was clear that a comprehensive system of data collection is helpful for understanding trends in service delivery and for monitoring and demonstrating the need for and effectiveness of abortion care in Scotland. The data can enable improvements to service delivery and should continue to be gathered. The Group carefully considered whether this could be delivered through standard governance rather than legislation, but the Group would not wish to risk losing access to any data and felt that including a requirement for PHS to continue to collect data within primary legislation would safeguard the continuation of a wide range of accurate data

The Group agreed that PHS should continue to collect data on abortions and that there should be a requirement for this in primary legislation. However, legislation should not state what data should be collected, and this should be left to guidance. As is the case with other healthcare services where routine data are collected, the Group would not expect this to have any negative impacts on the data collection.

The Group carefully considered whether PHS should collect specific data on abortion complications but felt that any changes to how complications data is collected should not be included within primary legislation, accounting for potential improvements in data collection systems and methods. It is recommended that the Scottish Government consider improving collection of complications data alongside Health Boards.

Recommendations

1. The requirement to notify the Chief Medical Officer of an abortion should be removed.

2. The requirement to collect data should be included in any updated abortion legislation.

3. Any requirements on what data are to be collected should be in guidelines, not primary legislation.

6.11.8 Adults with Incapacity, Young People and Brain Stem Dead patients

As things stand, pregnant women in Scotland who are deemed to lack mental capacity can legally access abortion, but the process requires medical certification under s 47, Adults with Incapacity Act 2000 (AWIA), to confirm the treatment is in the person’s benefit. In cases of abortion, regulations made under s48 AWIA requires that an independent opinion be obtained from the Mental Welfare Commission and/or that a court order be obtained. Overall, it is designed to ensure that safeguards are in place to ensure decisions are made in the benefit of the individual and that they do not resist treatment.

The current law in this area is now considered outdated, particularly in light of the increased emphasis placed on the importance of adhering to a human rights approach as embodied in the UN Convention on the Rights of Persons with Disabilities.

This was recognised in the findings of the Independent Review of Mental Health and Incapacity Law in Scotland (Scott Review, 2022). In its recommendations, the Review emphasised the need to facilitate reform that ensured that people assessed as lacking capacity have access to decision-making processes that align with their human rights. The Scottish Government has welcomed the recommendations, offered a detailed response, and reform is currently underway.

The Group supports a human rights-based approach to women deemed to lack capacity in terms of accessing abortion services. A more joined-up approach between mental capacity and abortion laws in Scotland would also assist in supporting a human rights-based approach which ensures access to timely and suitable abortions services for pregnant women deemed to lack capacity.

While recognising that it is important that suitable safeguards are put in place, a flexible case-by-case approach on an individual basis would also be welcomed, with support provided by independent advocates, and in circumstances where mandatory courts orders for accessing abortion services were not required.

How best to treat a pregnant woman who has been assessed as being brain stem dead raises a range of contested ethical and legal issues. While there have been some high-profile cases in this area in countries such as the United States, there is very little academic scholarship or case law in the UK on the issue.

In general terms, UK courts have recognised that the decision to withdraw life-sustaining treatment from a patient in a persistent vegetative state, for example, should be made in the best interests of the patient, even when they are unable to make decisions themselves. This may involve considering their quality of life and any previously expressed wishes. There is no requirement for court approval to be sought for withdrawal of life-sustaining treatment in these circumstances, provided that there is agreement as to what is in the best interests of the patient, in addition to ensuring any relevant mental capacity laws and professional guidance have been followed.

If the pregnant woman is assessed as brain stem dead in accordance with the Code, then withdrawal of treatment may take place even if it results in the death of the fetus. If no clinical diagnosis of brain stem death can be made in accordance with the Code, then a clinical assessment of what treatment is appropriate should be made on a case-by-case basis, based on the best interests of the pregnant woman. In individual circumstances, account may need to be taken as to whether the pregnant woman had made any relevant advance directives or had expressed specific values or beliefs in relation to the provision of such treatment. In the event that no agreement can be reached on what constitutes the pregnant woman’s best interests, then recourse to the court may be necessary in the circumstances.

With regards to young people, the Group felt that it would be inappropriate to differentiate ‘young people’ within the law, and any additional safeguarding requirements could be considered as part of guidance.

Recommendations

1. There should be no specific changes to primary legislation regarding adults with incapacity (AWI) or young people and that Courts should not be involved in authorising abortions.

2. The Mental Welfare Commission should ensure there are clearer pathways and guidance in future for helping ensure swift processes and support for AWI where an abortion is being considered.

3. There should be no specific additional requirements for young people.

4. There should be no specific additional requirements within abortion legislation for patients who are brain stem dead.

6.11.9 Positive Duty to Provide Abortion Services

There is legislative precedent for creating duties in specific areas of health. For example, in the National Health Service 2006 Act, in relation to health research, education and training, workforce systems etc. The Group recommends that a positive duty on Ministers or health boards to provide abortion services in line with the law should be included in legislation.

It is recommended that the Scottish Government explore an amendment to the NHS (Scotland) Act 1978 to cover such a duty and ensure provision of abortion services is framed as part of a Health Board’s role in providing healthcare. In discharging this duty, the Scottish Ministers must, in particular, facilitate or otherwise promote access to, and delivery of, abortion as a healthcare matter in Scotland.

It is recommended that the Scottish Government explore a duty to ensure sufficient staffing levels within the Health and Care (Staffing) (Scotland) Act 2019 and alongside a duty on Health Boards, that the Scottish Government should consider a duty placed on Scottish Ministers. The Group suggest that Scottish Ministers could, at least once every 10 years, publish a report describing the workforce arrangements and systems in place in the health service for access to, and delivery, of abortion as a healthcare matter in Scotland.

Recommendations

1. The Scottish Government should include a duty to provide abortion services – or a ‘right to abortion’ – with said duty being on Scottish Ministers and Health Boards.

6.12 A note on disposal of fetal remains

While not directly related to the law on abortion, the Group consider that the Scottish Government should take this opportunity to reconsider current guidance around the disposal of pregnancy remains following an induced abortion or pregnancy loss up to 24 weeks’ gestation.

Currently in Scotland, guidance limits the options of disposal available to women, with a requirement that pregnancy remains of any gestation collected by healthcare professionals are subject to cremation or burial. This is despite the legal framework that a foetus is only a part of the woman, not a distinct entity in its own right.

Cremation is often associated with a ceremony and/or religious or spiritual ritual and takes place within a registered crematorium under the oversight of a Registrar, and while this may be the most appropriate choice for some women in these circumstances, for many it may be viewed as insensitive. Burial can be similarly emotionally taxing for women given the association with the loss of other family members or friends.

Because of the requirement for disposal to be via one of these options, a full consent form has to be undertaken with the woman during the consultation process which abortion providers report can be incredibly distressing, particularly at earlier gestations where if a woman had opted for EMAH as opposed to surgical or in-hospital EMA care there would be no such requirements. Current guidance also requires that pregnancy remains are required to be stored in a mortuary which, in light of other proposals in this paper around accessibility and provision of care, could limit where abortion can be provided in practice.

The Group consider that any legislation or guidance on this matter should reflect patient choice at its core and recognise that women experiencing pregnancy loss of any kind may not feel that cremation or burial is appropriate. The Group instead feel that the position in Scotland should reflect that of the 2024 Human Tissue Authority guidance applicable to England, Wales, and Northern Ireland, where cremation, burial, incineration or the return of the pregnancy remains to the woman when requested, are available options, and that women should also have the right to decline to discuss how their pregnancy remains are managed.

The Group therefore recommend a review on this matter, either within the ongoing process to review the law on abortion or separately, to ensure that patient choice is recentred at this stage of the pathway.