Warning: this article mentions abortion, terminating a pregnancy and miscarriage
Last week, amendments to abortion law passed at Westminster action on abortion made news headlines across the UK. What may not be apparent to Scots is that the position here remains unchanged. People who have abortions can still be subject to prosecution – and, in fact, the introduction of new police guidelines means that any kind of pregnancy loss could result in a police investigation.
Today, abortion is a commonplace medical procedure. One in three women get an abortion at some point in their lives. It is partly this that prompted MPs to support an amendment to the Crime and Policing Bill, with the result that having an abortion in England or Wales has now been decriminalised.
They did not go as far as campaigners had hoped. Carrying out an abortion can still potentially lead to prosecution, as can assisting an abortion – by, for instance, accompanying a friend who is accessing the procedure. Still, the move is largely seen as a positive development by human rights organisations ewhich have expressed concern about the situation in Scotland.
Pregnancy loss is more common than most people think
Approximately one in every eight pregnancies ends in miscarriage, usually during the first 12 weeks. At this stage, many of those affected don’t even realise they were pregnant – the loss just seems like a heavy period. If there is prolonged bleeding or pain beyond what is usual for the individual, however, or if a fever develops, medical attention is needed. A miscarriage after this stage should always be reported to a doctor because if the body fails to clear all the tissue from the pregnancy, it can be very dangerous.
Understandably, many people in this situation find it acutely distressing. They may seek support from friends, often by posting about it online. We live in a culture where it’s increasingly normal to be open about these things, which is positive in many ways – but it can lead to trouble. Similarly, the use of apps to track menstruation or pregnancy can bring pregnancy loss to police attention.
New guidance described as ‘discriminatory by design’
The new guidance from the National Police Chiefs’ Council states that every case of pregnancy loss after 24 weeks, and every stillbirth, must be reported to the Procurator Fiscal for investigation, and that police investigation may be appropriate. “The response to an unattended stillbirth, or a live birth where there is information giving rise to a suspicion of an attempted termination of pregnancy outside of the legally permitted circumstances, will require the highest levels of compassion and sensitivity from investigators,” they say.
Nevertheless, they advise police to search the home for evidence of drugs like mifepristone and misoprostol, which can be used to induce abortions (but are also ingredients in medicines taken for other reasons). This approach extends to the confiscation of phones and computers so that personal data can be reviewed, including internet search history, health apps and private correspondence. If they suspect that an abortion has taken place after the legal limit of 24 weeks, they may carry out an interview under caution.
The guidance has been condemned by 29 civil society and health organisations in a joint letter to Chief Constable Jo Farrell. It argues that these methods “constitute a deeply regressive approach that is misogynistic and discriminatory by design”.
“Women experiencing pregnancy loss need compassionate care, not criminal investigation,” said Dr Sinead Cook, Chair of the Faculty of Sexual and Reproductive Healthcare, Scotland Committee. “These methods violate fundamental rights to dignity, privacy and healthcare.”
It has been noted that they could be a breach of Article 8 of the Human Rights Act, the right to private and family life. The World Health Organisation has called for governments to suspend all application of criminal law to pregnancy loss.
Legal change is needed, say campaigners
The women’s rights campaign group Engender last year identified several instances of police action taken in relation to pregnancy loss in Scotland. “Women now find themselves in the perilous situation where the laws governing abortion in Scotland have not kept up with advancements like abortion medicines and reproductive tracking apps,” said its executive director, Catherine Murphy. “Police Scotland, the Crown Office and Scottish Parliament need to act urgently to end the scope for prosecutions and bring the law into the 21st century.”
Engender has long campaigned for pregnancy to be treated as a private matter for individuals to manage with the aid of their doctors, and it is calling for Scotland to legalise abortion so that investigations like these will end. It notes that public attitudes to the matter have changed significantly in recent decades and that the law as it stands is out of touch. It has also observed that current laws do not affect everyone equally. Poverty, for instance, can make it much harder to raise a child. Meanwhile, people who are disproportionately likely to be living in poverty, such as disabled people and people with low levels of education, also face additional barriers to accessing abortion within the legal limits.
When police intrude into the loss of an unwanted pregnancy, there can be severe negative effects on mental health and the ability to recover from what is already a traumatic situation. Intentional pregnancy termination can also involve serious vulnerability, especially when there are traumatic circumstances surrounding the advent of the pregnancy. With little evidence that they are helping to prevent harm, the question has to be whether such investigations can be justified in anything but exceptional circumstances.
[If you have been affected by pregnancy loss, the Miscarriage Association can provide support.]
