Who benefits from abortion decriminalisation? Women or abortion providers?

The recent case of Nicola Packer has attracted a good deal of attention. The public response has been overwhelmingly sympathetic, rightly so. This poor woman has had to wait over four years for her case to come to court and for her to be cleared of the charge of killing her unborn baby by knowingly taking abortion pills after the legal time limit. Without doubt, she has faced an ordeal nobody should have to undergo.

In summary, Ms Packer had never wanted a child and when, in November 2020, she was feeling unwell and took a pregnancy test that was positive, she immediately went online to book a termination. After telephone conversations, but without a physical examination or ultrasound scan to confirm her dates, she was prescribed ‘abortion pills by post’ to terminate her pregnancy at home. In the early hours of 7 November, she gave birth in her bathroom to what she now knows was a 22 to 26-week-old fetus. ‘Pills by post’ cannot be used legally beyond ten weeks’ gestation because of concerns for the mother, particularly the risk of haemorrhage, if used later. Packer was reported to the police and arrested at her hospital bedside. There followed over four years of investigations before the trial in May this year resulted in her acquittal. In essence, the court accepted that this was a tragic mistake; Ms Packer had believed herself to be only six weeks pregnant when she took the abortion tablets.

A tragic story, and one that rightly makes us want to make changes to ensure others do not face a similar ordeal in the future. And, unfortunately, it is very possible that unless appropriate changes are made, others may face similar situations. The ‘abortion pills by post’ scheme, which allowed Ms Packer to be prescribed abortion pills, was initially an emergency measure during the Covid crisis, but it was made permanently legal in 2022 and remains common practice today.

There were 251,377 abortions for women resident in England and Wales in 2022 – the highest number since the Abortion Act was introduced, and an increase of 17 per cent over the previous year. At-home terminations accounted for 61 per cent of all abortions in 2022, a nine per cent increase over 2021’s figures, when 52 per cent were carried out at home. And who is providing these at-home abortions? In 2022, 99 per cent of abortions in England and Wales were funded by the NHS, but 80 per cent of those carried out by the independent sector in clinics run by MSI Reproductive Choices, BPAS, NUPAS, etc. Large sums of money are involved – BPAS, for example, declared income of £56,422,777 from government contracts on their last accounts.

So, what can be done to protect future Nicola Packers? Tonia Antoniazzi MP (Lab) and Stella Creasey MP (Lab, Co-op) have tabled two amendments to the Criminal Justice Bill that, if passed, would lead to decriminalisation of abortion. They see this as the way to avoid tragic cases like that of Nicola Packer from arising. We must amend the law, supporters might claim, such that her actions (if they had been deliberate) would no longer be illegal. That would have prevented Ms Packer’s lengthy legal ordeal. But would such a change protect future women? The reality is that abortion decriminalisation could actually lead to a significant increase in the number of women performing dangerous, late-term abortions at home without proper care, endangering the lives of many more women.

The proposed change to the law could also lead to an increased number of viable babies’ lives being ended well beyond the current 24-week abortion time limit, and beyond the point at which they would be able to survive outside the womb (about 22 weeks). The change would also permit sex-selective abortion. Removing the possibility of legal intervention would play into the hands of anyone attempting to coerce a woman towards a dangerous late-term at-home abortion, whether for sex-selective or other reasons.

We must therefore ask, is decriminalising abortion up to birth really the best way? Polling undertaken by ComRes shows that only one per cent of women support introducing abortion up to birth, while 70 per cent of women would support a reduction in the time limit from 24 weeks to 20 weeks or below. 91 per cent of women also oppose sex-selective abortion.

What about the protection of future Nicola Packers? Is there a better way? We believe so. Nobody wants to see women put through the harrowing experience Ms Packer has endured. And there is a solution. One that would not only have prevented Ms Packer from facing a prolonged legal process but also would have prevented her from ever facing the unexpected delivery of her 22 to 24-week-old fetus without appropriate medical care.

The court system may have failed Ms Packer, but tragically, they are not alone. Her primary and first failure was at the hands of her abortion provider. The ‘better way,’ we suggest, is to hold to account the privately run clinics that are carrying out over 80 per cent of NHS-funded abortions. Telemedicine must no longer be allowed to take the place of in-person assessment – one supposes it is cheaper, but to disregard the risk to women like Ms Packer is simply inexcusable. Every woman requesting an at-home abortion must be examined physically and have her dates checked, with an ultrasound if there is any doubt. Measures of general health should be recorded, and blood tests performed where indicated. Most importantly, there must be the opportunity to look for any sign of coercion. Independent clinics must not be permitted to continue to practice if they do not meet the highest regulatory standards in clinical practice, record-keeping and reporting complications. They should be held to the same high standards of care as maternity services within the NHS that pays them. Failure to provide the best of care to pregnant women is a dereliction of duty, and it ought to be criminalised. The legal changes that have allowed pills-by-post abortions to be performed without proper in-person care must be repealed.

It’s not only cases like Ms Packer’s that show that the pills by post experiment should be urgently halted. Robust evidence is emerging of how DIY home abortions are placing women at risk, through unsafe practices, unreported complications and undetected coercion. Decriminalisation of abortion isn’t what is needed. We need the recriminalisation of substandard care.