Why do we punish? The Role of the Criminal Law in Enforcing Abortion Restrictions

• In Event: Crime, Science and Politics WG Panel 1. Criminal Policy legitimation

Abstract

Despite many international committees calling for criminal sanctions to be removed from all abortion legislation, the vast majority of states maintain strict criminal sanctions. Indeed, there appears to have been a move in recent years to tighten the restrictions around access to abortion and to impose harsher punishments for those acting outside the scope of the legislation. Many of the debates surrounding the introduction of these prohibitions focuses on the woman ‘choosing’ to end a pregnancy, it ignores the impact that this has on the general right to health of women. It does not consider those circumstances where a woman is denied treatment as a result of being pregnant which then significantly impacts both the right to health and life of the mother.
The focus of this paper is threefold, firstly examining whether the law ought to have a role in restricting the right to abortion. The second, and more prominent aspect of this paper focuses on the criminalisation and criminal sanctions that are applied when women abort outside of the terms of the legislation. The abortion regime in the UK has generally been hailed as one that is very liberal, and many do not realise the strict nature of the 1967 legislation that governs this area. A recent case in the UK saw a woman being sentenced to 28 months in prison for terminating her pregnancy outside of the terms of the Act (although overturned on appeal).
Finally, the paper will look at traditional theories of punishment, including retribution, prevention denunciation and reparation theories, to examine how the criminalization of abortion fits these traditional concepts of why we punish.

Author

• Claire Michelle Smyth, Kingston University