Book review: The Abortion Act 1967: A Biography of a UK Law

Introduction

The Abortion Act 1967: A Biography of a UK Law, co-authored by Professor Sally Sheldon, Professor Gayle Davis, Dr Jane O’Neill, and Dr Clare Parker, offers a ground-breaking biography of the Abortion Act 1967, which the authors claim to be ‘one of the most highly debated legal frameworks under UK’s legislative history’. ¹ The Abortion Act 1967, which applies to England, Wales, and Scotland, created exceptions to the criminal offences for abortion contained in the Victorian Offences Against the Person Act 1861 (OAPA), allow lawful abortion under certain circumstances when approved by two medical practitioners acting in good faith. ² By adopting an innovative, historically grounded, socio-legal approach, this book not only gives background to how the Abortion Act was shaped but also conducts thorough archival research and interviews to demonstrate that the Act is a ‘living law’ and thus continues to evolve in a rapidly changing society. From a methodological perspective, the book is novel and seeks to fill the gap in the existing literature: while the field of abortion law has attracted much attention, no study has taken this biographical approach.

Summary of chapters and analysis

The book comprises eight chapters, touching on issues including the early years of the Abortion Act 1967, the normalisation of abortion, the parliamentary battle for modernising reform, and how abortion is regulated in the neighbour jurisdiction of Northern Ireland. I will briefly summarise each chapter.

Chapter 1: Introduction

The introduction sets out the purpose of the collection, in the authors re-emphasising the importance of a dual methodological approach employing both historical research (finding relevant sources in archives) and socio-legal research (conducting interviews with doctors, campaigners, politicians, and service providers whose work has linked them to how the Abortion Act 1967 was shaped). The authors explain that this has helped to show how contextual study of the Abortion Act is attentive to both continuity and change over time. Given the controversial nature of the field, the collection of qualitative data is impressive and does not only contribute to the literature but also makes this collection an invaluable resource for scholars and practitioners on varying levels, as well as any person interested in the topic.

It is also important to note that this book is intended for audiences not just in the legal profession but also history, sociology, and gender studies: it is written in plain and accessible language that is easy to understand for all the target audiences. This fits very well together with the fact that each of the four authors themselves are from different disciplines (Claire Parker and Gayne Davis are historians focusing on the history of medicine; Sally Sheldon is a lawyer specialising in healthcare law and ethics; and Jane O’Neill is a social historian). The diverse background of the authors enriches the book’s interdisciplinary approach, showing the reader that abortion law does not exist in isolation, but is interlinked with other disciplines.

The authors highlight the fact that the act has hardly changed for over five decades despite many calls for reform. ³ However, it has evolved and been shaped by various actors (e.g. judges, doctors, campaigners, and service providers) while societal and cultural changes have also affected our understanding of the Act. As such, the authors claim that the study of the Abortion Act ‘is a study of changing political ideologies, including ideas of nationhood . . .’. ⁴ Thus, there seems to be a complex, dynamic interrelationship between law and society as they evolve over time.

Chapter 2: The Early Years

Chapter 2 briefly draws upon the period before the Abortion Act came into force, before providing a detailed exploration of the early years of the Act. The authors highlight how it was interpreted differently within different regions of Britain, and how uneven implementation had a knock-on effect on how accessible abortion services were to women in reality. The authors give examples of Birmingham and Glasgow, which appeared to take on a very rigid approach in offering abortion services and where, as a result, women had to travel to other regions to access those services. ‘Birmingham and Glasgow would, for many years, remain amongst the most difficult places in Britain in which to obtain NHS abortion services . . .’ ⁵ write the authors, whereas ‘in Edinburgh abortions seemed to be left pretty much to the consciences of individual doctors’ and in Dundee they were carried out ‘almost for the asking’. ⁶

I found this one of the strongest aspects of the collection, as this internal comparison shows how, in reality, some women had more difficulty accessing abortion than others, despite legalisation. This is an important point raised by the authors, as these geographical disparities are still the case today; for example, surgical abortions are unavailable in Scotland past 13 weeks, so women have to travel down to England for these services. ⁷

Additionally, the authors note that, during these early years, doctors had a predominant role in interpreting and shaping the meaning of the Abortion Act – especially with regard to the ‘social’ clause, ⁸ which refers to circumstances where a doctor considers a woman’s social circumstances when approving an abortion, even if there is no direct medical risk. ⁹ In light of this, the authors highlight a lack of consensus, even among doctors: ‘medical opinion was initially sharply divided with many doctors feeling ill prepared to adjudicate abortion requests’. ¹⁰ However, the authors also note that doctors’ interpretation of the Abortion Act was not only influenced by their own judgement but also by other healthcare professionals they worked with. For example, psychiatry played a significant role in deciding if the service was necessary for people who might claim to be mentally affected by pregnancy. ¹¹ This indicates that the decision-making regarding access to abortion was heavily concentrated within the medical sphere and was not necessarily responsive to the wishes of any women who were seeking abortion. ¹²

Chapter 3: The parliamentary battle for restrictive reform

Chapter 3 explores the timeline of calls for reform since the enactment of the Abortion Act. The authors show that in its early years, the Act was for the subject of reform proposals from different angles including political, Christian, feminist, moral, and ethical standpoints. Calls for reforms started immediately and continue to the present. For example, recently there has been an increase in calling for the decriminalisation of abortion across the United Kingdom. ¹³ In England in 2023, a woman received a 28-month prison sentence for terminating her own pregnancy using abortion pills. ¹⁴ Over the past year, growing support from Members of Parliament (MPs) and healthcare organisations has emerged for decriminalising abortion. The push aims to frame abortion as a healthcare matter that should be regulated rather than a legal issue subject to criminal penalties. ¹⁵

The authors explain that there was no consensus in Parliament on what path to take with regard to the Act, even within their own party, and their divided views were guided by various factors such as their faith, morality, and political position. However, while these proposed reforms were ultimately unsuccessful, they have indirectly impacted current practice under the Abortion Act. For example, the authors highlight that while the White Bill (1975) failed to achieve statutory reform, it ‘nonetheless left an important legacy’ by requiring licensing provisions for non-NHS providers. ¹⁶ It is relatively challenging to obtain licensure; essentially, any non-NHS clinic providing abortions, the difficulty is rooted in the concern with the ‘taxi touts and “Cash Before Delivery” doctors of the late 1960s and early 1970s’. ¹⁷

Furthermore, the Alton Bill (1988), while also unsuccessful in bringing about statutory reform, brought the issue of viable babies and serious foetal anomalies, which was the foundation for disability rights campaigners against the position on permitting abortion after 18 weeks for serious foetal anomalies. The 1980s saw a rise in the disability rights movement, ¹⁸ so it can be argued that the changing society at the time may have also influenced the rise in discussion over disability rights for foetuses with serious anomalies. This issue remains a topic of ongoing scholarly debate, as it can be seen in R (Crowter) v Secretary of State for Health and Social Care, a case seeking to restrict the application of the disability ground of the Abortion Act (s.1(1)(d)) to fatal impairments. ¹⁹

Chapters 4 and 5: The battles for normalisation and legal meaning

Chapter 4 explores the journey to ‘normalising’ abortion. It details the rise of the pro-choice movement, and the authors link this to a social shift towards acceptance of abortion. They suggest that there were various reasons behind this social shift, including easier access to non-surgical (pills) abortion that improved the safety of abortion in practice. ²⁰ The authors also highlight that there was a major shift in sexual and gender norms as well as a shift in understanding relationships and family structures, which impacted how abortion was perceived. ²¹ This was coupled with a shift in religious belief, a ‘decay in “discursive Christianity” which profoundly marked British life and public opinion, including on abortion’. ²² This re-emphasises the fact that the abortion Act 1967 is a living law.

Chapter 5 then focuses on the difficulties of implementation and interpretation of the Abortion Act 1967 through the domestic courts, specifically the so-called ‘social ground’ for abortion; and how judges played a central role in shaping the meaning of the Abortion Act. It is stated that ‘each judge necessarily brought their own moral sensibilities to bear . . . some taking more care to conceal them than others’. ²³ This illustrates that the meaning of the Act was not only interpreted by judges through a legal lens, but rather through their personal moral standards. As abortion became more normalised, this has been reflected in the interpretation of the Act. For example, since the book was published, the Court of Appeal delivered its judgement Crowter. ²⁴ The claims were dismissed, with Lord Justice Underhill stating that

The question of whether, and if so in what circumstances, it should be lawful to abort a viable foetus on the basis that it will or may be born with a serious disability is one of great sensitivity and difficulty. But it is a question which it is for Parliament, and not the Courts, to decide. ²⁵

This provides support for the authors’ observation that challenges through the domestic courts are ‘often unsuccessful’, ²⁶ and supports their identification of the changing context.

Chapters 6 and 7: Northern Ireland and parliamentary reform

Chapter 6 focuses on Northern Ireland, which helps to justify the reference to the ‘UK’ in the title of the book. Unlike the rest of the United Kingdom, the 1967 Act does not apply to Northern Ireland. ²⁷ In Northern Ireland, abortion remained criminalised under the OAPA and the Criminal Justice Act 1945, ²⁸ and abortion was lawful only for ‘preserving the life of the mother’. ²⁹ However, in 2019, abortion was decriminalised in Northern Ireland and in 2020, the Northern Ireland (No.2) Regulations came into force which introduced a new legal framework for abortion services in Northern Ireland that legalised access to abortions up to 12 weeks’ gestation, subject to been certified by one medical professional. ³⁰ Abortions beyond 12 weeks’ gestation are lawful in certain circumstances, including severe foetal impairment and fatal foetal abnormalities. The authors also suggest that from the 1980s, pro-reform campaigners and Associations like the Northern Ireland Abortion Law Reform Association (NIALRA) and Alliance for Choice (AFC) emerged and demanded that the Abortion Act be extended to Northern Ireland. ³¹ Even though those movements faced opposition and struggled to break through a climate of stigmatisation, the authors argue that the 1967 Act was influential in the debate over reform of Northern Irish abortion law. While reform of the 1967 Act has been unsuccessful, Northern Ireland’s new more progressive law could pave the way for decriminalisation in the rest of the United Kingdom. However, in practice, geographical inequalities remain as abortion services have not yet been fully implemented. ³² According to Amnesty International, ‘significant barriers’ ³³ remain to abortion in Northern Ireland, including scores of women still travelling to Great Britain to access services’. ³⁴

Conclusion

Overall, the book is thought-provoking and engaging, covering a wealth of topics and providing perspectives that will be useful for scholars from a variety of disciplines, including medical law. The biographical approach could be helpful to legal scholars in conducting comprehensive analyses of other key statutes. Throughout the book, the authors note that the meaning of the Abortion Act 1967 will continue to evolve. However, given that the authors recognise that judicial challenges to the Act through domestic courts have been unsuccessful and that there is a need for legislative reform, the collection could have been enriched by engaging in the discussion of what a potential future legislative reform could entail. Future research might pursue this path in greater detail.