Home Engender blog | Why we need to modernise abortion law in Scotland - your questions answered

Engender blog

Why we need to modernise abortion law in Scotland - your questions answered

For too long women in Scotland & the UK have had to settle for a system of abortion law that doesn’t put their needs & rights first. We’re calling for modernised abortion law that works for women’s human rights & prevents further unnecessary prosecutions.

To mark International Safe Abortion Day on 28^th September, we’ve got the answers to some of the most frequently asked questions about why we need to decriminalise abortion in Scotland now.

Wait, isn’t abortion legal in Scotland?

No. Women and pregnant people in Scotland currently do not have the legal right to make the final decision about ending a pregnancy. Instead, that power lies in the hands of doctors—two of whom must approve any request for an abortion. This adds needless complexity to the process, leading to delays and creating unnecessary barriers for those seeking care, especially for marginalised groups like disabled women, migrant women and young women.

So what is the law?

The laws that dictate when abortion is permitted in Scotland are a patchwork of outdated regulations, stemming from as far back as the 17th century. These measures largely reflect the eras in which they were introduced and the degrees of patriarchal control women were subject to at the time. To put it in perspective, one of these laws is based in legislation from when witch trials were still happening.

Why do we need decriminalisation?

The current law is disconnected from the realities of modern Scotland, where abortion is routine healthcare accessed by around one in three in their lifetimes. While most women can access services without issue, marginalised women face greater challenges due to the two-doctor approval rule. For instance, for women in rural areas, there might only be one doctor available locally, or they may have to travel long distances to a clinic where abortion services are available.

Without this authorisation, abortion remains illegal across Britain, and women, healthcare providers and people assisting someone to have an abortion can be subject to prosecution. These and other restrictions set out in the Abortion Act can impede access to reproductive healthcare in Scotland.

The sharp increase in prosecutions for abortion-related offences in England highlights how outdated laws clash with modern medical practices and commitments to public health, human rights, and gender equality. Our report explores these legal failures in Scotland, including evidence that women have been charged and prosecuted for abortion-related offences in recent years.

Would decriminalising abortion make unsafe ‘backstreet’ abortions legal?

One argument against decriminalisation claims it would ‘legalise non-medical, backstreet abortions,’ but this is misleading. The Abortion Act strictly controls when, where, and how abortions can occur. Outside of this framework, abortion remains a crime.

It’s also important to note that 99% of abortions in Scotland today are medical, induced by pills, not surgical. The unsafe ‘backstreet’ abortions that were common when the Abortion Act was enacted are simply not the threat they were in the 1960s.

Despite being one of the most common and safest healthcare procedures—accessed by one in three women - abortion is treated differently in law than almost all other medical procedures. In all other fields of healthcare, medical bodies are able to shape guidance and regulation based on best practice, rather than complex laws, including criminal law, from a bygone era.

Do people in Scotland support abortion reform?

Decriminalisation is recommended by the World Health Organization, all major UK medical bodies, UN treaty groups, trade unions, and equality advocates. While abortion is often seen as a polarising issue, especially in Scotland, the reality is much different.

Regular polling by YouGov shows that the vast majority of Scots are firmly in favour of abortion rights. In fact, as of January 2024, 93% agreed that ‘women should have the right to an abortion.’ Despite lingering stigma and uncertainty surrounding abortion, partly due to its criminalisation, social attitudes in Scotland have shifted dramatically in recent decades.

Are politicians willing to take action?

With a few high-profile exceptions, countries across the world are increasingly modernising and liberalising their legal frameworks on abortion. In contrast, the laws in Scotland, England, and Wales are falling behind more progressive approaches seen in most of Europe. Britain, including Scotland, has also not kept up with international human rights standards, which clearly state that access to safe, legal, and timely abortion is a basic human right and shouldn’t be controlled through criminal laws or punishments.

In the UK, politicians have historically avoided changing abortion laws, seeing it as a ‘controversial’ issue. As a result, decisions taken in parliament have tended to be free votes rather than along party lines. However, Northern Ireland, Scotland, and Wales have all used their devolved powers to make changes, with Northern Ireland passing laws and Scotland and Wales taking executive action. For example, Scotland has approved early medical abortion at home and updated reporting requirements. Meanwhile, support for decriminalising abortion is growing across the political spectrum in Scotland.

Would decriminalising abortion face legal challenges?

Abortion was devolved to the Scottish Parliament in 2016 and it is open to the Scottish Parliament to pass legislation that amends the Abortion Act. The UK parliament has historically avoided reforming abortion laws at Westminster.

If Scotland were to change or repeal the Abortion Act, it could face legal challenges from the UK Government, arguing that different abortion laws across the UK would cause problems. However, Northern Ireland has always had different abortion laws. At the same time, the rising number of investigations and prosecutions of women seeking abortions in England has increased calls to decriminalise abortion and repeal the Abortion Act at Westminster.

Anti-abortion groups would likely try to block progressive abortion law reform. They previously challenged Northern Ireland’s law on safe access to clinics, but the UK Supreme Court rejected that case. Similar challenges in Scotland, such as the one against early medical abortions at home, have also been unsuccessful.