Dozens of investigations have been launched by police in the past 10 years into suspected breaches of 1861 law
Women in England and Wales who have suffered miscarriages or stillbirths are being investigated by police on suspicion of having illegal abortions, with some forced to hand over their phones and laptops for invasive “digital strip searches”.
In one case in 2021, a 15-year-old girl who had an unexplained early stillbirth was subjected to a year-long criminal investigation that saw her text messages and search history examined. Police dropped the case after a coroner concluded the pregnancy ended because of natural causes.
The teenager was investigated under the 1861 Offences Against the Person Act, which says it is unlawful to procure a miscarriage using “poison”, “an instrument” or “other means whatsoever”, and that those found guilty can be jailed for life.
The 1967 Abortion Act transformed women’s healthcare by legalising terminations in England, Wales and Scotland up to 28 weeks, with the legal limit since reduced to 24 weeks. But abortions are only lawful in circumstances where two doctors agree that continuing the pregnancy would be risky for the physical or mental health of the woman.
The old law was never repealed, so anyone who has an unregulated abortion or tries to terminate their pregnancy without supervision from medics is acting unlawfully.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.
Police have launched dozens of investigations into suspected breaches of the law in the past 10 years, according to analysis of crime logs and Home Office data, with the alleged offences including cases where women took abortion pills bought on the internet and induced their own abortions by drinking herbal remedies without supervision from doctors.
Campaigners and politicians say the legislation criminalises women over a healthcare issue and deters some from seeking aftercare for fear of repercussions.The British Medical Association, the Royal College of Midwives and the Royal College of Obstetricians and Gynaecologists have all called for abortion to be decriminalised, with the BMA saying the current “punitive approach” hampers the ability of doctors to provide supportive care.
Details of the criminal investigations were revealed in records obtained by the Observer under freedom of information laws. We contacted 44 police forces in England, Wales and Scotland to ask for logs relating to recent cases of procuring illegal abortion, including the number of offences and how many of the investigations had led to a suspect being arrested or charged.
In one case involving Surrey police in 2016, a potential offence was recorded after a woman was reported to have taken abortion pills that had not been obtained from a medical professional. The force said such reports were rare and would be investigated on a case by case basis.
In Norfolk, where three incidents were recorded between 2017 and 2020, police were called after a pregnant woman told her social worker she had started clotting after taking “loads of pills”.
In another case in Norfolk, which, unlike many of the forces, provided detailed information, a woman was admitted to hospital for swallowing eight misoprostol tablets – used with mifepristone to induce medical abortion – which had not been obtained through a doctor. She was thought to be 26 weeks’ pregnant, two weeks past the legal limit, according to the logs.In those cases the women were not arrested or charged because prosecution was not considered to be in the public interest. But in other cases action has been taken, with women arrested and charged, and some investigations are still going on.
In all, in the 10 years to April 2022, police in England and Wales have recorded 67 cases of procuring an illegal abortion. Police Scotland said it had no recent cases.
In some of the cases, the suspects were men or third parties accused of coercing women to have abortions. Anti-abortion groups argue that the law is useful in bringing abusers to justice, but reproductive-rights campaigners point out that coerced abortion can be prosecuted under other laws, such as those relating to battery, GBH or poisoning, which do not also criminalise women.
MSI Reproductive Choices, a charity and abortion provider, said it knew of cases where the 1861 law had been used to investigate women and girls who had lost their pregnancies through natural causes.
In the case of the 15-year-old, police were called by hospital staff who believed the teenager had taken a substance bought on the internet to end her pregnancy. They were aware that she had previously contacted an abortion provider to obtain information about a possible termination, and that it could not go ahead because it was just after the 24-week legal limit.
The teenager’s phone and laptop were seized and examined for evidence of supposed wrongdoing, including text messages she had exchanged with her boyfriend expressing worry about the pregnancy. The case was dropped after postmortem tests found the baby had probably been stillborn because of natural causes, according to a report seen by the Observer.
The findings follow a rolling back of reproductive rights in the US after the supreme court overturned its 1973 decision in Roe v Wade, a landmark ruling that guaranteed the constitutional right to an abortion for women. The ruling has led to increased scrutiny of reproductive rights in Britain and demands for legislative changes to protect access to abortion.
Labour MP Stella Creasy said action was needed to enshrine access to abortion in law as a human right and is calling for it to be included in Britain’s bill of rights, which is going through parliament.She said cases where women were suspected of inducing a miscarriage should be approached as safeguarding issues in most circumstances, rather than criminal ones.
“People will be shocked to find out that women are being investigated for having a miscarriage or seeking an abortion in England and Wales. This is not a mark of a civilised society,” she said.
Dr Jonathan Lord, NHS gynaecologist and medical director at MSI Reproductive Choices, said cases were often a “fishing expedition” and raised concerns that Google searches and messaging history could be weaponised against women.
“We urgently need to follow the lead of more enlightened societies such as Canada, New Zealand and Australia, which have decriminalised abortion so that women have autonomy to make their own decisions about their own bodies, and pregnancy loss is managed as a healthcare issue with care and compassion, not as a potential crime,” he said.