Proposed guidance to health staff not to report suspected illegal pregnancy termination to police may be lawful

Photograph: Sopa Images/LightRocket/Getty Images

The Royal College of Obstetricians and Gynaecologists’ call for abortion to be decriminalised – and announcement that it will tell its members not to report women to police if they believe they may have illegally ended their pregnancies – is a significant intervention in the debate.

Concerns about the existing laws in England and Wales came to the fore last year when a woman was sentenced to more than two years in prison for procuring drugs to induce an abortion after the legal limit, which is generally 24 weeks.

The 28-month sentence, which was halved on appeal – with a judge saying it called “for compassion, not punishment” – prompted outrage and calls for a change in the law, which dates back to the Offences Against the Person Act 1861.

Carla Foster, who pleaded guilty, was said to have knowingly misled the British Pregnancy Advisory Service (BPAS) by saying she was below the 10-week cut-off point for a medical abortion at home, when she believed she was about 28 weeks pregnant.

Doctors later concluded the foetus was between 32 and 34 weeks’ gestation at the time of termination. Earlier this month, another woman, Bethany Cox, was found not guilty of using drugs to bring about an illegal abortion, after prosecutors decided to offer no evidence, after a three-year investigation.

While such prosecutions are uncommon, they are growing. Between 1861 and November 2022, only three women were convicted of having an illegal abortion but as well as the cases of Foster and Cox, three more women accused of illegal abortions are due to appear in court this year. Additionally, police investigated at least 67 cases of procuring an illegal abortion in the 10 years to April 2022.

Terminations up to 28 weeks – later reduced to 24 weeks – were legalised under the 1967 Abortion Act but only where two doctors agree that continuing the pregnancy would be risky for the physical or mental health of the woman.

The investigations into women have occurred because the 1861 law was never repealed, so anyone who has an unregulated abortion or tries to terminate their pregnancy without supervision from medics is acting unlawfully. Anyone assisting them can also be prosecuted.

By way of contrast, while Northern Ireland only legalised abortion in 2019, it removed all related criminal penalties at the same time.

RCOG, alongside the Faculty of Sexual and Reproductive Healthcare (FSRH), British Society of Abortion Care Providers and the Faculty of Public Health has joined campaigners and MPs in calling for a change in the “outdated and antiquated” law.

There is no general legal obligation to contact the police about a crime (for the public or healthcare professionals) so the RCOG is within its rights to actively tell its members not to do so.

The NHS code of practice governing patient-clinician confidentiality states that “staff are permitted to disclose personal information in order to prevent and support detection, investigation and punishment of serious crime”. However, serious crime is not defined and the code says “there must be either explicit patient consent or a robust public interest justification”.

There are some statutes which require disclosure to police, for example where healthcare professionals encounter cases of female genital mutilation (FGM) in girls under 18, as highlighted by RCOG. But RCOG says instances where healthcare professionals working in women’s health are rare and, in line with the NHS code of conduct, it tells healthcare professionals they “must abide by their professional responsibility to justify any disclosure of confidential patient information or face potential fitness to practise proceedings”.

So, while what RCOG and others have said might seem radical at first glance, it has firm basis in the law surrounding the reporting crimes in England and Wales as well as the NHS code of practice. They have likely been moved to produce the guidance at this point in time because of fears that “deeply traumatised” and vulnerable women, as they put it, are increasingly being exposed to harrowing investigations and prosecutions.

Ultimately, RCOG and others believe that abortion care should be removed from criminal law and placed instead under medical regulation.