New Clause 1 and the politics of abortion law reform

Abstract

On 17 June 2025, Members of Parliament voted to accept New Clause 1 (NC1) to the government’s Crime and Policing Bill. If enacted, NC1 will prevent the investigation, prosecution, and conviction of women who terminate their own pregnancies in England and Wales. In the light of a recent increase in investigations, prosecutions, and convictions, the importance of this reform must not be understated. Nevertheless, existing legal hurdles to accessing abortion will continue to exist. Substantive reform of the Abortion Act 1967 is required to advance reproductive rights, but this cannot be achieved through an amendment to an existing Bill. Such amendments must be narrowly defined to succeed, as NC1 demonstrates. Moreover, there are very few viable alternative routes to reform available given the government’s reluctance to take responsibility for abortion law reform. Therefore, it is currently virtually impossible to achieve comprehensive reform of English and Welsh abortion law.

On 17 June 2025, Members of Parliament (MPs) voted to accept New Clause 1 (NC1) to the government’s Crime and Policing Bill. If enacted, NC1 will prevent the investigation, prosecution, and conviction of women who terminate their own pregnancies in England and Wales. ¹ The Bill must complete its passage through Parliament before becoming law, but it is unlikely that NC1 will be removed altogether by the House of Lords. This is not to say that NC1 will go unchallenged, nor that it will become law in its current form. NC1 (now clause 191) is scheduled for consideration by the House of Lords during the Committee Stage in January 2026. In this commentary, I suggest that the need to pursue abortion law reform through narrowly defined amendments to existing legislation, as exemplified by NC1, makes it virtually impossible to achieve comprehensive reform of English and Welsh abortion law.

The context

It is a criminal offence, punishable by up to life imprisonment, to terminate a pregnancy in England and Wales. ² Section 58 of the Offences Against the Person Act (OAPA) 1861 makes it an offence for a pregnant woman to procure her own miscarriage, and section 59 of the OAPA 1861 makes it an offence for another person to supply or obtain anything with the intention for it to be used to procure the miscarriage of any woman. Section 1 of the Infant Life (Preservation) Act 1929 makes it an offence to intentionally cause the death of ‘a child capable of being born alive’ unless the act was done in good faith to save the pregnant woman’s life, so it applies to late-term abortions only. Nevertheless, a pregnancy can be terminated lawfully in circumstances where the Abortion Act 1967 affords a defence to doctors. These circumstances are, ‘that the pregnancy has not exceeded its twenty fourth week and that the continuation of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children’, ³ ‘that the termination is necessary to prevent grave or permanent injury to the physical or mental health of the pregnant woman’, ⁴ ‘that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated’, ⁵ and ‘that there is substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped’. ⁶ An abortion cannot go ahead unless two doctors agree that one of these grounds exists, save in exceptional circumstances where just one doctor believes that an abortion is immediately necessary to prevent grave permanent injury or to save the pregnant woman’s life. ⁷ The Abortion Act 1967 also establishes restrictions on where an abortion can be carried out, ⁸ and by whom. ⁹

In January 2025, the National Police Chiefs’ Council published updated UK-wide guidance on the investigation of child deaths. This contains specialist investigative guidance on potential offences relating to the termination of pregnancy. ¹⁰ The guidance requires the police to demonstrate ‘the highest levels of compassion and sensitivity’. ¹¹ Yet it advises police to search a woman’s home for abortifacient medication or packaging and to check a woman’s phone (including her search history, communication with others, and any apps that allow her to track her menstrual cycle) to establish her knowledge of and intention in relation to the pregnancy. ¹² Moreover, the guidance advises police as to how they might be able to access a woman’s medical records without a court order. ¹³ The previous version of the guidance (published in 2014) contained no such guidance. ¹⁴ The new police guidance seems to be a response to a recent increase in police investigations for abortion offences in England. It is thought that more than 100 women have been investigated by police for abortion offences since 2020. ¹⁵ Lengthy police investigations can have a profound impact on women, ¹⁶ who may have suffered miscarriage, ¹⁷ stillbirth, ¹⁸ or early labour. ¹⁹ Prosecutions and convictions also seem to be increasing. ²⁰ Recent high-profile examples include Carla Foster and Nicola Packer. ²¹ During the first national lockdown in May 2020, Foster took abortion medication that she had obtained via telemedicine (having misrepresented her gestational stage) while she was between 32 and 34 weeks pregnant. Having pleaded guilty to procuring her own miscarriage under section 58 of the OAPA 1861, Foster was initially imprisoned for 28 months in June 2023. This was reduced to a 14-month suspended sentence on appeal. Packer also took medication that she had obtained via telemedicine during the second national lockdown in November 2020. However, Packer told the court that she was unaware that she was between 22 and 24 weeks pregnant, which exceeded the 10-week legal limit for self-administered medical abortion at home. ²² Packer denied committing an offence under section 58 of the OAPA 1861, and she was acquitted in May 2025. The women who have been subject to investigation, prosecution, and conviction are typically those who were believed to be over 24 weeks pregnant, ²³ although an abortion that does not comply with all the conditions set out in the Abortion Act 1967 is a criminal offence at any stage of the pregnancy. Some media reports claim that Packer was around 26 weeks pregnant. ²⁴

The reasons for the increase in investigations, prosecutions, and convictions are unclear, but the introduction of telemedical abortion in 2020 during the first Covid-19 lockdown may be a relevant factor. ²⁵ In 2022, telemedical abortion was made permanent. ²⁶ Telemedical abortion refers to the delivery of abortion medication through the post, following consultation with healthcare professionals online or over the phone. This is only permitted where the pregnancy has not exceeded 10 weeks. ²⁷ Some who wish to oppose telemedical abortion express concern that being able to access abortion remotely enables pregnant women to access the service after the 10-week limit ‘either dishonestly or because they have miscalculated their gestational age’. ²⁸ Others identify a less direct connection with telemedical abortion. Sheldon and Lord, for example, suggest that an increased awareness among healthcare professionals and police as to how abortion medication can be obtained ‘fuel[s] suspicion regarding unexplained pregnancy loss’. ²⁹ In any event, the recent increase in investigations, prosecutions, and convictions demonstrates the danger of relying on a ‘socio-legal gap’, ³⁰ rather than reforming the law. A socio-legal gap occurs where a more acceptable situation exists in practice than on paper. In this context, the gap existed between the (previously) very low number of convictions for abortion ³¹ and the existence of abortion-related offences. As long as the offences exist, it is possible that women may be investigated, prosecuted, and convicted, and police practices may change over time (as is the case here).

Consequently, both the public ³² and relevant experts ³³ renewed their calls for abortion to be decriminalised. An initial attempt by MPs to achieve legal change occurred in 2024. Two amendments (New Clause 1 and New Clause 40) were proposed to the then government’s Criminal Justice Bill. ³⁴ However, neither amendment was voted on before Parliament was dissolved for the general election. Two similar amendments were then proposed to the government’s Crime and Policing Bill at the Report Stage. ³⁵ NC1 (tabled by Tonia Antoniazzi MP, Labour) would disapply existing abortion offences as they currently apply to women who terminate their own pregnancies. New Clause 20 (NC20) (tabled by Stella Creasy MP, Labour) would repeal the relevant sections of the law that criminalise abortion. A third amendment, New Clause 106 (NC106), was tabled by Caroline Johnson MP (Conservative). ³⁶ This would mandate an in-person consultation with a healthcare professional for abortion medication to be prescribed lawfully. NC106 was intended to ensure that abortion medication could not be obtained by women to terminate later-stage pregnancies. ³⁷ It was framed by proponents as a safety issue, ³⁸ but it could also be seen as a response to the increase in investigations, prosecutions, and convictions. MPs voted to accept NC1 (precluding a vote on NC20) with a majority of 242 and rejected NC106. ³⁹

An amendment

The way in which Antoniazzi’s proposal for reform came before Parliament is itself significant. Rather than appearing as a standalone Bill, the disapplication of existing abortion offences as they currently apply to women who terminate their own pregnancies was tabled as an amendment to a government Bill that was already progressing through Parliament. It is worth noting that the only recent examples of statutory reform to abortion law were also introduced to Parliament in this way. Section 178 of the Health and Care Act 2022, which made telemedical abortion permanent, was the result of an amendment to the Health and Care Bill tabled by Baroness Liz Sugg (Conservative) in the House of Lords. ⁴⁰ Section 9 of the Public Order Act 2023, which established safe access zones around premises providing abortion services, was the result of an amendment to the Public Order Bill tabled by Stella Creasy MP (Labour). ⁴¹

Introducing the reform proposal to Parliament in this way reflects the fact that there are only very limited opportunities for backbench MPs to introduce Bills to Parliament. In addition, parliamentary rules mean that Private Members’ Bills rarely become law. ⁴² A notable exception is of course the Abortion Act 1967, which was introduced by David Steel MP (Labour) after he came third in the ballot for Private Members’ Bills in the 1966–67 session. ⁴³ This difficulty is not unique to the abortion context. However, it is particularly acute in the abortion context because the government has typically been reluctant to take responsibility for abortion law reform. ⁴⁴ Indeed, during the debate that preceded the successful vote on NC1, the government representative (Alex Davies-Jones MP, Labour) noted:

The Government maintain a neutral stance on changing the criminal law on abortion in England and Wales . . . If it is the will of the House that the criminal law on abortion should change, whether by our exempting pregnant women from the offences or otherwise, the Government would not stand in the way of such change. ⁴⁵

This reluctance is ‘probably due to the contentious nature of the topic, which is likely to divide both party members and the electorate’. ⁴⁶ In contrast, the Scottish Government’s 2023–24 Programme for Government includes a commitment to review abortion law ‘to ensure that abortion services are first and foremost a healthcare matter’ by the end of the Parliamentary term (2026). ⁴⁷

The method set out earlier (i.e. attaching a reform proposal to an existing government Bill) is not without criticism. During the debate that preceded the successful vote on NC1, Simon Hoare MP (Conservative) drew attention to ‘the Christmas tree-ing of significant amendments relating to abortion’. ⁴⁸ This statement is indicative of a broader trend of Parliamentarians referring to Christmas tree Bills during debate. ⁴⁹ ‘Christmas tree Bill’ is a political metaphor (originating from the United States of America) which describes a Bill that attracts numerous, often unrelated, amendments during its passage through Parliament. ⁵⁰ A serious criticism of this phenomenon is that there is not sufficient time to debate each amendment sufficiently. This criticism was reflected in Hoare’s speech, which highlighted the exceptional importance of ‘serious consideration’ in the abortion context. ⁵¹ A perceived lack of scrutiny of NC1 may lead to opposition to it in the House of Lords, Baroness Fox has suggested. ⁵² Undoubtedly, ‘full, open and informed debate of legislative reform is required for the exercise of democratic rule’. ⁵³ Nevertheless, given the pressing nature of the issue NC1 was intended to deal with (see the previous section), and the narrow framing of NC1 as a response to this issue (see the following section), tabling the reform as an amendment to an existing Bill was an appropriate method in the absence of any realistic alternative. However, comprehensive reform of abortion law cannot be achieved using this method, as discussed below.

Narrow framing

NC1 had significant support both within and outside Parliament. Prior to the vote itself, NC1 was ‘[b]acked by 180 cross-party MPs and 50 organisations’. ⁵⁴ Then, NC1 passed with a large majority (242). I want to suggest that this support was the result of framing the proposed reform narrowly. By this I mean that NC1 was designed to respond only to the pressing issue of increasing investigations, prosecutions, and convictions – rather than attempting to undertake wider reform of abortion law. The narrow framing of NC1 was emphasised throughout the debate that preceded the vote, seemingly in an attempt to convince MPs (who wanted more time to debate broader reform) to vote in favour of it. Antoniazzi, for example, explicitly described NC1 as a ‘narrow, targeted measure’. ⁵⁵ Two key features of NC1 support this description. First, NC1 would not repeal the existing abortion offences. Accordingly, it is not strictly accurate to describe the potential consequence of NC1 as ‘decriminalisation’. ⁵⁶ Nevertheless, NC1 would have the effect of decriminalisation for women who terminate their own pregnancies because it would no longer be possible for them to be investigated, prosecuted, or convicted for abortion offences. The application of NC1 only to pregnant women who terminate their pregnancies (excluding healthcare professionals, partners, family members, etc) is the second key feature that supports Antoniazzi’s description of NC1.

Disapplying existing abortion offences rather than repealing them is perhaps a roundabout way of achieving the desired result (i.e. preventing the investigation, prosecution, and conviction of a pregnant woman who terminates her own pregnancy). The Abortion Act 1967 is an example of another indirect approach to reform that achieved Parliamentary support. Indeed, the Abortion Act 1967 affords doctors a defence to the offences in certain circumstances so that they can lawfully perform abortions, rather than simply legalising abortion in these circumstances. It has been suggested that this approach to reform was necessary to secure support for the Bill from MPs, ⁵⁷ and this seems to be the case for NC1 too. However, there remains a need for abortion to be decriminalised. Indeed, the criminalisation of abortion is incompatible with international human rights law (which obligates states to protect women from unsafe abortion and to reduce maternal morbidity and mortality) because it ‘has implications for access to safe abortion, as well as for the experience of seeking and availing of abortion care’. ⁵⁸ Disapplying abortion offences (as NC1 would do) only implements the World Health Organisation’s recommendation to ‘suspend the application of and repeal criminal law’ in part. ⁵⁹

The narrow framing of NC1 was pitched against the broader aims of NC20 during the Parliamentary debate that preceded the vote on NC1. Antoniazzi, for example, stated:

While [we] share an interest in removing women from the criminal law relating to abortion, [NC20] is much broader in terms of the scope of its proposed change to the well-established legal framework that underpins the provision of abortion services. ⁶⁰

One important aspect of NC20 that highlights this difference is that it would have repealed the existing abortion offences, meaning that nobody could be prosecuted for an illegal abortion. However, there was less impetus to support NC20 because there does not seem to be any evidence of a worrying trend of investigating, prosecuting, or convicting partners, doctors, or family members for illegal abortions. There are cases where an individual has been convicted for violently ending a pregnancy under the current abortion laws, ⁶¹ but these are very different circumstances. Moreover, there was a consensus in the Parliamentary debate that convictions for such behaviour must still be possible – though, as Creasy observed, abortion laws are not the only way to achieve this. ⁶² Perhaps even more significantly, NC20 would also have prevented ministers from making regulations that sought to restrict abortion access; amend section 1 of the Abortion Act 1967; or otherwise undermine the human rights approach set out by the United Nations Committee on the Elimination of Discrimination against Women in paragraphs 85 and 86 of its 2018 report. ⁶³ These paragraphs list a number of recommendations, including the decriminalisation of abortion. The human rights commissioner would be able to challenge in court any attempt to make such regulations. The head of advocacy at the British Pregnancy Advisory Service explained that abortion providers supported NC1 over NC20, even though they were in favour of wider abortion law reform, on the ground that wider reform needed greater consideration than a debate on an amendment to an existing Bill would allow. ⁶⁴ This statement reflects the limitations of attaching a reform proposal to an existing government Bill (as discussed in the earlier section).

Crucially, however, neither NC1 nor NC20 would make any substantive changes to the Abortion Act 1967. Under NC20, the conditions for abortion set out in the Abortion Act 1967 would have continued to apply, but they would no longer have operated as a defence for doctors. This is because NC20 contained a provision that would have amended the wording of section 1 of the Abortion Act 1967. It specified that the existing phrase ‘a person shall not be guilty of an offence under the law relating to abortion when . . .’ would be replaced with ‘a pregnancy can only be terminated when . . .’. During the debate, Creasy emphasised on several occasions that NC20 would retain all the provisions of the Abortion Act 1967. ⁶⁵ Nevertheless, concern that the Abortion Act 1967 would be rendered ‘obsolete’ by NC20 seemed to fuel opposition to it. ⁶⁶ In contrast, it was clear that the Abortion Act 1967 would continue to apply exactly as it does now if NC1 became law in its current form because doctors would still be subject to the current criminal law. Ensuring that the Abortion Act 1967 requirements would continue to apply in the same way was significant for securing support for NC1 because, as observed by Sheldon, Davis, O’Neill and Parker, attempts to substantively reform the text of the Abortion Act 1967 are rarely successful. ⁶⁷ However, this means that the existing legal hurdles to accessing abortion will continue to exist if NC1 becomes law in its current form. It will remain the case that an abortion cannot go ahead without the agreement of two doctors (save in exceptional circumstances where just one doctor believes that an abortion is immediately necessary to prevent grave permanent injury or to save the pregnant woman’s life). ⁶⁸ Yet the so-called two-doctor requirement has been subject to significant criticism from both academics and healthcare professionals for being an unnecessary hurdle to accessing abortion services. ⁶⁹ It will also remain the case that doctors can only perform abortions or prescribe abortion medication up to 24 weeks of pregnancy, unless any of the exceptional grounds in sections 1(1)(b) to 1(1)(d) of the Abortion Act 1967 apply. Yet gestational limits on abortion violate international human rights law by ‘operat[ing] as “a regulatory barrier” that can result in people seeking abortion outside of the formal health system or unwillingly continuing a pregnancy’ and by having a disproportionate effect on vulnerable pregnant women. ⁷⁰ These are women who are ‘least able to access abortion because of later detection of pregnancy, lack of access to abortion provision, and lack of access to the resources required to avail of abortion’. ⁷¹ Moreover, gestational limits are not based on evidence about safety or efficacy. ⁷²

Whether the 24-week gestational limit would be undermined by NC1 was a particularly controversial issue in the debate that preceded the vote, with Rebecca Smith MP (Conservative) remarking that ‘[a]ny time limit is meaningless’ if NC1 becomes law in its current form. ⁷³ The 24-week gestational limit is clearly still relevant where abortion care is provided by healthcare professionals. It would continue to be a criminal offence for a doctor to perform an abortion or prescribe abortion medication to a pregnant woman if he or she knew or suspected that the pregnant woman had exceeded 24 weeks of pregnancy and none of the exceptional grounds in sections 1(1)(b) to 1(1)(d) of the Abortion Act 1967 applied. This means that a pregnant woman who is more than 24 weeks pregnant and who does not satisfy the exceptional circumstances cannot access professional abortion services (unless she successfully misrepresents her gestation). To terminate her pregnancy, she would have to seek an abortion outside of the health system, and this can be less safe. Those who suggest that the 24-week limit would be meaningless are concerned that the absence of criminal sanctions for individuals who terminate their own pregnancies at a late gestation erodes the deterrent effect of the law. This is clear in the speech of Rebecca Paul MP (Conservative), who said that ‘fully developed babies up to term could be aborted by a woman with no consequences’ if NC1 became law in its current form. ⁷⁴ Nevertheless, as Sheldon and Lord contend, vulnerable and desperate women are unlikely to be deterred by the imprisonment of others, and they do not deserve punishment. ⁷⁵ The point I want to make is that statements suggesting that abortions will be permitted up to birth depict NC1 as ‘extreme’ in an attempt to reduce support for it. ⁷⁶ Indeed, the current 24-week limit was considered to be ‘about right’ by 49% of respondents and ‘too late’ by 25% of respondents in a YouGov poll of Great Britain from 2023. ⁷⁷ Only 6% of respondents said that the current 24-week limit was ‘too early’. ⁷⁸

The significant support for NC1 from MPs within Parliament might be seen to suggest that the climate in the House of Commons is now more socially liberal. This is not to say that there is not still opposition to abortion in Parliament, of course. The BBC’s Political Editor, for example, has observed that: ‘[t]his has been a week at Westminster that has seen two decisions that point to a socially liberal shift’. ⁷⁹ The vote to accept NC1 is one of these decisions, and the other is the vote to accept the Terminally Ill Adults (End of Life) Bill on 20 June 2025. ⁸⁰ Taking the vote to accept NC1 alone, the extent of any such shift is somewhat limited by the very narrow framing of NC1 which does nothing to improve access to abortion services. Moreover, the amendment proposed to the then government’s Criminal Justice Bill by Dame Diana Johnson MP (Labour) might have succeeded in 2024 as it was practically identical to the one that was passed in June 2025. ⁸¹ It is of course impossible to know, as that Parliament was dissolved before a vote could take place. What is clear from the support for disapplying abortion offences is that legislators in England and Wales are not participating in the alarming rollback of reproductive rights seen elsewhere in the world. In the United States of America, for example, many states have restricted access to abortion since Roe v Wade was overruled in 2022. ⁸² Nevertheless, legislators in England and Wales are doing very little to advance reproductive rights by merely supporting NC1. Advancing reproductive rights would entail a comprehensive law reform that removes hurdles to accessing abortion services, including the two-doctor requirement and the 24-week gestational limit. However, this cannot be achieved through an amendment to an existing Bill, which must be narrowly defined to succeed, and there are very few viable alternative routes to reform available in the light of the government’s reluctance to take responsibility for abortion law reform. Such reform is therefore virtually impossible, at least in the immediate future.

The successful NC1 vote led to a call from one Scottish Labour MP for Scotland to ‘catch up’. ⁸³ However, given that NC1 was designed to respond only to the pressing issue of increasing investigations, prosecutions, and convictions, a similar amendment may not receive so much support in Scotland. Although there have been investigations, prosecutions, and convictions for abortion offences in Scotland in recent years, the data that is available does not show the same alarming increase in investigations, prosecutions, and convictions of women for terminating their own pregnancies as seen in England. ⁸⁴ Given that the reason for this increase in England is unclear, it would be rash to rule out a similar increase in Scotland in the future. In any event, the decriminalisation of abortion in Scotland is being considered by the Abortion Law Review Expert Group as part of its review of Scottish abortion law on behalf of the Scottish Government. ⁸⁵ It is worth noting that the criminal law on abortion in Scotland differs from that in England and Wales. Neither the OAPA 1861 nor the Infant Life (Preservation) Act 1929 apply in Scotland. Instead, abortion is a criminal offence under the common law – though the parameters of the offence are not clear. ⁸⁶ The Concealment of Birth (Scotland) Act 1809 has also been applied to cases of suspected illegal abortion. ⁸⁷ For completeness, I should note that abortion was decriminalised (by the Westminster Parliament) in Northern Ireland in 2019. ⁸⁸ A new offence for terminating a pregnancy outside the legal framework for abortion services established in 2020 was then created, but it does not apply to the pregnant woman herself. ⁸⁹

Conclusion

This is not the first time in the recent past that the House of Commons has voted in favour of abortion-supportive reform of English and Welsh law. Other examples include telemedical abortion and safe access zones. Nevertheless, the vote to accept NC1 is particularly significant because NC1 concerns the framework that currently regulates abortion in England and Wales. If NC1 becomes law in its current form, it will be an important first step for reforming this legal framework. It deals with the most pressing issue of increasing investigations, prosecutions, and convictions of women for terminating their own pregnancies. The importance of this must not be understated. Nevertheless, this first step must be followed by more comprehensive substantive reform of the Abortion Act 1967 to remove the hurdles to accessing abortion services, including the two-doctor requirement and 24-week gestational limit, that will continue to exist despite NC1. However, such reform is virtually impossible given the government’s reluctance to take responsibility for abortion law reform and the difficulty of introducing a Bill to Parliament as a backbench MP. The vote to accept NC1 demonstrates that to maximise the chance of a reform attempt succeeding, it should be attached to an existing government Bill and be narrowly framed.