Devolution and Termination of Pregnancy: Principles and Practice

The British Parliament is currently debating the Scotland Bill within the House of Lords, legislation that is designed to expand the powers devolved to the Scottish Parliament in Holyrood. Within this Bill, is the proposal to revoke the segment which prohibits Scotland from making legislation about abortion, essentially making this a devolved matter, as it is in Northern Ireland. Currently, abortion provision in mainland UK is dictated by the Abortion Act of 1967, which permits abortion in certain circumstances. Abortion in Northern Ireland is more highly restricted, and currently the majority of women seeking to terminate their pregnancy travel to mainland UK in order to undergo termination.

The Smith Commission, set up by the UK government in the final days of the referendum on Scottish independence, which promised to identify further powers which could be devolved to Scotland, reported on the possibility of devolving abortion legislation, but advised that this was a matter which required consultation. Instead, several MPs, who have expressed views against abortion in the past, have tabled the amendment to devolve abortion legislation. Currently, the First Minister of Scotland, Nicola Sturgeon, has affirmed that her government has no plans to amend the legislation as it stands, but critics of the idea have pointed out that the devolution could result in restrictions for women seeking to terminate pregnancies both north and south of the border.

Traditionally, Scottish law has been liberal where abortion is concerned. Termination of pregnancy could be provided by medical professions after consideration of the case, and abortion reformer Dugald Baird confirmed in the 1930s that legal action against medical professionals terminating pregnancies was unlikely without proven criminal intent. Of course, his view was not necessarily shared by all, and the concern of various human rights advocacy groups is that devolution could represent the start of an erosion of reproductive rights. During the parliamentary debates in the Commons, Yvette Cooper illustrated that whilst abortion in the US is legal after Roe vs Wade, those lobbying against abortion have campaigned for more restrictive laws at state level, leading to substantial reductions in the number of clinics providing abortion services.

Whilst public opinion in Scotland seems to support legal abortion, the reality of the situation is somewhat different, and this is not something that has been covered in any political debates. The majority of Scottish women seeking termination for reasons not relating to fetal abnormality or due to life threatening complications of pregnancy, are not able to obtain termination of pregnancy after 18 weeks of gestation. Instead, there is an arrangement by which they can travel south of the border to organisations such as BPAS and then claim re-imbursement for this. This is partly due to a lack of trained staff to perform second trimster surgical abortion, and the need to perform fetacide for medical termination after 21+6 weeks. So despite their legal entitlement to termination of pregnancy services, Scottish women already face restrictions in doing so.

Overall, Scotland has shown itself to be capable to self-government, the Scottish Parliament has proved itself capable in debating complex ethical issues such as care at the end of life, and in social issues such as equal marriage. There follows a logic which would suggest that perhaps Scotland is able to debate and decide on these issues for itself, however, it remains to be seen if the results of these decisions will still help keep Scottish women safe, or whether this is the first stage is a battle against those who seek to reduce their freedoms.