In America, 13 states already had trigger laws in place to ban access to abortion before the reversal of Roe, and a total of 26 states are poised to ban abortion in the immediate aftermath of the Dobbs decision, with more likely to pass further restrictions without banning abortion altogether. But what does that have to do with Scotland?
Roe v. Wade is the landmark 1973 US Supreme Court (SCOTUS) ruling that changed the way states could regulate abortion. It was based on the court’s opinion that the US Constitution provides a fundamental right to privacy (via the 14th amendment) that protects a person’s right to choose whether to have an abortion. The precedent that Roe (25-year-old single woman Norma McCorvey, using the pseudonym ‘Jane Roe’) set led to the widely accepted judicial interpretation that abortion was legal in the US.
That all changed at the end of June when SCOTUS ruled 6:3 on Dobbs v. Jackson Women’s Health, overturning Roe and holding that the authority to regulate abortions lay with the states. But unlike the US, Scotland (as well as the wider UK) does not have a written constitution. So, what protects access to abortion here? Is our access to reproductive healthcare under threat?
Reproductive rights in Scotland
Through the Abortion Act 1967, it is legal to have an abortion during the first 24 weeks of pregnancy, and for the procedure to remain confidential, regardless of age, if certain conditions are met. But arrangements for early medical abortion at home (EMAH) were not put into place until March 2022 when it was necessitated by the Covid-19 pandemic. Prior to this, eligible patients (under 12 weeks gestation) were required to take the first dose of the medication in a hospital clinic.
The Scottish Government has expressed its intentions for the current arrangements to continue after the pandemic as part of standard treatments, but in these times of uncertainty, it is difficult to find these assurances comforting until EMAH is enshrined in law. And while abortion is legal up to 24 weeks, there are no Scottish NHS boards that provide abortions after 20 weeks, some health boards can only provide abortions at a lower gestation, and others – the islands, for example – do not provide abortions locally at all.
This means that many who seek treatment must travel to England to obtain an abortion within the legal time frame. Scotland prides itself as being an open, outward, and inclusive country, but it’s difficult to see how that is true given that there is limited access to abortion in some cases, and no access if the patient is past the 20-week mark.
Although harassment by organised anti-abortion groups outside of healthcare centres are not new or limited to Scotland, there has been an escalation of the number and intensity of these gatherings as of late. Dr Greg Irwin, a physician and advocate of safe access to abortion in Scotland, commented on activities outside Queen Elizabeth University Hospital (QEUH) in Glasgow where he works stating that he is “seriously concerned about the anti-abortion protests occurring outside the QEUH”.
Dr Irwin added that he and his colleagues “know first-hand how distressing this harassment is for our patients, which makes it infuriating for clinical staff to have to pass these groups day-in and day-out”. Dr Irwin described anti-abortion activists as being “close as they can get to the maternity unit, meaning that our patients in the wards can see and hear them”.
QEUH isn’t the only site where this takes place in Glasgow. Outside the Sandyford Central NHS Clinic, individuals using microphones were so loud that the clinic was forced to close rooms on the side of the building nearest the noise. Their actions not only made it impossible for patients to access the clinic without fear of intimidation, but they also made it difficult for the NHS staff – the same key workers we applauded every Thursday during the early months of Covid – to provide care to their patients.
It should come as no surprise that American anti-abortion groups have been linked to anti-choice activities, not only funding organisations, but also going so far as providing resources to individuals who target patients and staff entering NHS hospitals and clinics.
Safe Access (Buffer) Zones
There has been calls by abortion rights activists to implement national legislation for safe access zones, also known as buffer zones. This would enforce a protest-free area around the point of entry to reproductive healthcare facilities so that staff and service users are able to enter and leave the premises without fear of harassment.
This call for national legislation has come after Edinburgh Council attempted to implement buffer zones using local byelaws. However, legal advice provided to the governing body of Scottish Local Authorities unequivocally stated that local authorities cannot use byelaws to implement buffer zones at NHS facilities.
Politicians and political parties across Scotland have shown broad support for buffer zones, with some vocal exceptions. Scottish Green spokesperson for Heath, Gillian Mackay MSP has recently launched a consultation on buffer zones with the aim of introducing a members’ bill to legislate safe access zones across Scotland. First Minister Nicola Sturgeon also chaired an emergency summit on abortion care after urging from Scottish Labour MSP Monica Lennon.
The summit was held days after the Dobbs decision in the US and included a cross-party group of MSPs as well as key stakeholders and activists, including Back Off Scotland, who have been a key voice in the campaign for nationally legislated safe access zones. After the meeting, Sturgeon affirmed her commitment to finding a national legislative solution to harassment at abortion clinics.
Where do we go from here?
While progress has been made, it has been a case of one step forward, one step back.
In March 2022, the Northern Ireland Assembly passed the Abortion Services (Safe Access Zones) Bill put forward by Green MLA Clare Bailey. However, it has yet to be put into practice, as it has been referred to the UK Supreme Court by the Attorney General for Northern Ireland to determine whether it’s outside the Northern Ireland Assembly’s legislative competence. There is concern that it interferes with some rights which are protected by the European Convention on Human Rights, such as freedom of thought.
On the 27 of July, the Irish Government announced that it had approved legislation seeking to implement 100m safe access zones outside facilities that provide abortion services, with Fianna Fáil’s Minister for Health, Stephen Donnelly, stating that he would like to see this legislation enshrined in law by the end of the year.
What might the future hold?
It will be interesting to see how these measures progress in the Republic of Ireland vs the UK. As stated before, it appears that similar legislation will soon be introduced at Holyrood, but it is imperative that each and every one of us do everything we can to advocate for safe, legal and local access to abortion up to 24 weeks for anyone who needs it, without exception.
This roll back of rights is a disturbing trend that has been spreading for some time. While the campaign to overturn Roe was a decades-long effort, their success has emboldened anti-abortion campaigners who continue to improve their methods of high-jacking democratic processes both at home in other countries. And we are far from safe. On 7 July, the UK Government revised the wording of a multinational statement it had drafted, removing all references to ‘sexual and reproductive rights’ and ‘bodily autonomy’, leading to criticism and reducing the number of signatories from 22 countries to eight.
On a final note, it is important to acknowledge that this trend of rolling back human rights will not stop at abortion. In a chilling concurrence to the Dobbs ruling, Supreme Court Justice Clarence Thomas, opened the door to challenge other important decisions that are grounded in the right to privacy, specifically naming Obergefell vs Hodges which legalised same-sex marriage, Griswold vs Connecticut which established the right to contraceptives, and Lawrence vs Texas which declared sodomy laws unconstitutional.
To quote Malcolm Tucker, “we are through the looking glass now, folks”. Now is the time to act.