Caution is needed on debate over decriminalising abortion

There seems no purpose in continuing to name her, so I shan't. The woman, now 44, has expressed "very deep and genuine remorse" for her actions, the judge said in his sentencing remarks, and had "nightmares", "flashbacks" and is "racked by guilt".

In December 2019 the mother-of-three discovered she was pregnant but waited until May 2020 to contact the British Pregnancy Advisory Service (BPAS) and ask for help. By this point the country had entered the first coronavirus lockdown and she had returned to live with her ex-partner, the father of her children.

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This man was not responsible for this latest pregnancy and she sought to conceal it from him. The woman lied to BPAS to obtain the abortifacient drugs mifepristone and misoprostol which, during lockdown, became available by telephone consultation for pregnancies up to 10 weeks. 

The details of this case are harrowing and complex and leave questions that can only be answered by those at the heart of the situation. Despite this, speculation online and in newspaper comment sections and radio phone-ins has been rife.

Prompted by the woman's custodial sentence, two separate but entwined issues are now subject to public debate. One is a campaign to decriminalise abortion. The other is about sentencing disposals for women.

This case, it would seem, is one around which support for suspended sentences could easily be generated. The courts should presume against custodial sentences for women because we know that women tend to have the bulk of childcare responsibilities and when women are jailed families are fractured and children suffer. 

An alternative community disposal surely could have satisfied the court that a punishment element was being meted out but kept the woman with her children. 

But the main focus, rather than on sentencing guidelines, has been on decriminalising abortion. 

Frustratingly, as is often the case, little attempt is being made to adequately set out the distinctions in law in the constituent parts of the UK. In Northern Ireland, abortion was decriminalised in 2019, a huge leap forward for a country that had some of the strictest abortion regulations.

As I mentioned in a column on this topic in March, the law around abortion is complicated, mainly because the 1967 Abortion Act – a UK-wide piece of legislation – applies differently in England and Wales and Scotland and it interacts in different ways with different legislation.

Dr Mary Neal, a healthcare law specialist at the University of Strathclyde, explained this recently in useful terms to Holyrood Daily magazine. The 1967 Abortion Act, designed to protect women from backstreet abortionists, allows certain circumstances where the 1861 Offences Against the Person Act and the 1929 Infant Life (Preservation) Act can be disregarded.

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The former act makes it a crime to procure a miscarriage using poison or instruments, while the latter criminalises the destruction of a foetus at the end of a pregnancy. However, neither of these acts apply in Scotland so the crimes do not apply here either.

BPAS, one of the organisations spearheading a campaign to decriminalise abortion, says that the number of women being investigated and charged with abortion-related offences in England is rising at concerning levels. In Scotland, however, there have been no such cases.

Humza Yousaf, a former health minister and justice minister, seemed not to be across the legislation when he said during the SNP leadership race that abortion should be decriminalised. 

In response to the campaign group Back Off Scotland, the now-First Minister said: "My first Programme for Government would instigate a review of this aspect of abortion law with a view to bringing forward proposals by the end of this parliament to ensure a woman’s right to choose is protected."

In his response he also made clear that the right to an abortion should not be governed by the criminal law "within specified term limits". This is crucial. Any debate about decriminalisation will have to consider these term limits with pro-choice campaigners resisting any move to reduce those limits and thus make the situation for women more restricted than it currently is.

For that is the risk of debate. At the moment, in the UK, abortion is not a culture war issue; it is not the divisive right/left battleground we see in America.

We take a British sense of compromise about abortion: we just don't talk about it because it's difficult. Yet the topic has become harder to avoid because of moves to introduce buffer zones - a live issue in Scotland now as the MSP Gillian Mackay's buffer zone proposals are lodged at Holyrood.

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During the SNP leadership contest it became the focus of attention as an issue relevant to the candidates' religious views. Now it is in the spotlight due to this distressing English case. 

If we are going to debate it, we must do it calmly and well. 

Hard cases make bad law and, in the case of abortion legislation, it is vital that questioning is not only allowed, but is encouraged. It does not matter whether we are talking about the NHS or private providers, grassroots groups or established third sector organisations, it is valid to question the motivation of any parties involved in campaigning. 

It is already plain to see that when we have a conflict of rights - or a conflict of perceived rights - it is very difficult to have calm and empathetic conversations. When American culture war narratives are infecting public debate and US organisations are facilitating anti-choice protests at abortion centres, a calm discussion of the issues is needed. 

One of the arguments of continuing to criminalise abortion is to have a preventative effect on women carrying out unsafe abortions but, rather, the preventative effective is more likely to be in stopping some women from seeking professional medical care. 

We will hear the commonly-used - and accurate - statement that "abortion is healthcare". It's used routinely by the First Minister when he discusses the topic. 

"Abortion is healthcare" makes it a more palatable prospect for those who are uncomfortable with the thought or for men, who perhaps can't fully sympathise with the foreign reality of the female body.

It seeks to reduce abortion to straightforward terms, a benign trivialisation. But abortion is more than healthcare. It is one of a number of necessary resources that allow women to overcome the hurdles of biology and take a full and equal part in society.

Yes, abortion is about bodily autonomy but it is more than that. Abortion, as one example, is an economic issue. Women now have higher levels of educational attainment thanks to the ability to control when or if they have children.

Access to contraception and abortion have allowed for an increase in the employment rates of women, their earning potential and reduced - but not eradicated - the gender pay gap. 

If women cannot time and limit their pregnancies they will always be at a disadvantage to their male peers and they will always have an economic dependence on men. 

Women must be able to take full control of their health, have economic autonomy and be able to participate equally in society.

The right to abortion must be fiercely protected and any public debate held with a view to stop unintended consequences from harming that right.