Abortion Rights Blog

The national pro-choice campaign

Scotland & Abortion Devolution: Healthcare or Human Right?

Today we are delighted to welcome writer Jane Carnall to our blog with a piece about the issue of devolving abortion law to the Scottish Parliament. Jane blogs at Edinburgh Eye and can be found on Twitter here.

In July 2015, Abortion Rights joined women’s groups across Scotland to make a joint statement to the government about the process of devolution [pdf link].

On Thursday 10th September 2015, Rhoda Grant, Labour MSP for the Highlands and Islands region, asked the First Minister “what discussions the Scottish Government has had with women’s groups following reports that the United Kingdom Government plans to devolve abortion law.”

Abortion is healthcare. Abortion is a human right.

These are two principles which are not usually in conflict: but in the discussion of abortion legislation and devolution in the UK, they may come into conflict.

Across the British Isles, the original legislation dealing with abortion is the Offences against the Person Act, passed in 1861. In England, Scotland, and Wales, the 1967 Abortion Act makes abortion is legally available as healthcare, and the majority of abortions performed for UK citizens are obtained on the NHS.

Abortion in late-term pregnancy is legally available in Scotland but not always practically available: some women have to travel from Scotland to England to get the healthcare they need which is not available to them from NHS Scotland.

In Northern Ireland, the 1967 Act does not apply, and abortion is only legally available if performed to save the life of the pregnant woman, under sections 25 and 26 of the 1945 Criminal Justice Act. In the Republic of Ireland, the 1861 Act is now slightly modified by the 2013 Protection of Life During Pregnancy Act, but the 1983 amendment to the Irish Constitution requires that the medical profession value the life of the fetus equally with the life of pregnant woman. In consequence, at least several thousand women each year travel overseas from Ireland to get the abortion they need, and pay for it: no one whose home address is in Northern Ireland is entitled to abortion on the NHS anywhere else in the UK.

The proposal before the UK government that abortion law should be devolved to Scotland, makes sense if abortion is considered as healthcare: as healthcare, abortion is already devolved.

The Scottish Government, via NHS Scotland, is responsible for ensuring that everyone who needs and is legally entitled to an abortion in Scotland, should be able to get what they need. Making the Scottish Government also responsible for legislative access to abortion is a sound devolutionary step.

As Nicola Sturgeon responded to Rhoda Grant on 10th September:

“A final decision has not yet been taken by the UK Government, but the Scottish Government’s view is that abortion should be devolved to bring it into line with almost all other health matters. The Scottish Parliament is responsible for scrutinising how the national health service in Scotland operates. It should also be responsible for setting the laws that the NHS works to.”

But if we consider abortion as a human right, should we support its devolution? Human rights should be equally and consistently applied everywhere. They should not be localised to one area or another.

Nicola Sturgeon made a welcome affirmation on 10th September, that

“the Scottish Government’s position on abortion law remains unchanged. We have no plans to change the law on abortion”

and, in further response to Rhoda Grant’s question:

“The Parliament has many responsibilities for issues in relation to which I have no current plans to change the substance of the laws. That does not negate the principle that it is the Scottish Parliament that should have responsibility. Let me be absolutely clear on my view and the Scottish Government’s position. The Scottish Government and I have no intention of legislating to change the current time limits for abortion.”

We know that as recently as February this year, anti-choice organisations such as CARE were seeking to have abortion legislation devolved to the Scottish Parliament with a view to restricting access to abortion in Scotland.

This July, a poll carried out by Survation in Scotland established that consistently, without any great differences in age, income, gender, political preferences, or locale, about three-quarters of Scots want abortion to remain legal and accessible according to current law; only a minority think the law should be changed to further restrict access to abortion in Scotland.

We know that in Northern Ireland, seven out of ten people want some changes in the law to increase access to abortion.

But in Northern Ireland, a woman has been charged with “procuring a poison or other noxious substance” for her underage pregnant daughter: the “poison” being Mifepristone and Misoprostol, which in any other part of the UK the girl could have been legally prescribed by her GP. The ban on abortion in Northern Ireland is being challenged in the courts under human rights law.

If abortion is only healthcare, we might accept that any healthcare system is a patchwork of access, a postcode lottery: that some necessary provisions will be available in some areas and not in others, that a person in need may have to travel and apply for access where the healthcare they need is available, not where they live.

But abortion is a basic human right, which should be universally available.

Even considered as healthcare, given the absolute time constraints on need for an abortion, and the unnecessary stress caused when artificial barriers are placed in the way of abortion access: it must be considered a failure in a country’s healthcare system if patients in need of an abortion have to face unnecessary delays or travel out of their area to get an abortion when one could be performed near at hand.

If the Scottish Government commits to keeping the gestation limits on abortion to be the same as in England and Wales, then is it possible that if prolife MPs at Westminster succeeded in modifying the 1967 Abortion Act to limit access, the Scottish Government would feel it necessary to pass mirror legislation limiting access to abortion in Scotland?

We have a well-founded concern, that undue influence of prolife pressure groups might lead to making abortion less accessible, whether at Westminster or at Holyrood. But we would hope that the clear majority approval of abortion access remaining the same would strongly influence policymakers and legislation.

It would be great if devolution of abortion legislation to Scotland led to Scotland taking a lead in healthcare and human rights, making abortion more accessible when and where needed.

Whatever the devolutionary outcome, our position should be clear: We want abortion access, free, safe, and legal: as a human right, and as healthcare.