No woman – or girl – undertakes the termination of a pregnancy lightly. But every woman and girl should have the right to choose whether or not to have an abortion without fear of censure, or worse, imprisonment.

The recent case of 44-year-old Carla Foster, a mother of three, who was jailed for using pills that meant she miscarried at 32 weeks, is thankfully rare. I can’t begin to imagine the hell she went through before taking the medication, nor the anguish of her three children as their mother was taken to prison for 28 months.

She broke the law, of that there is no doubt, but her punishment does not fit her crime. A suspended sentence, with emotional and practical support so that she and her family could rebuild their lives, would have been the humane response to this tragedy. Instead, her life and those of her children have been destroyed. For what?

A woman protests against anti-abortion group March for Life's demo in London last September. PIC: Thomas Krych/SOPA Images/Shutterstock.

Foster was prosecuted in England, under the Offences Against the Person Act of 1861, an archaic piece of legislation that threatens any woman “being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or unlawfully use any instrument shall be liable to be kept in penal servitude for life.”

This law does not apply in Scotland. Prior to the Abortion Act of 1967, abortion in Scotland was considered a crime under common law when provided without medical sanction. Under the 1967 Act, a woman can legally access a termination up to 24 weeks of a pregnancy, but within strict criteria. Two doctors must confirm that continuing with a pregnancy would pose a greater risk to the woman’s mental or physical health than accessing an abortion.

Any procedure outwith these conditions would be subject to Scottish common law, and could be considered a crime, though there have been no prosecutions in living memory. And some legal experts contend there never would be.

Campaign groups such as Abortion Rights Scotland argue that women’s reproductive healthcare should not be subject to criminal law, no matter how unlikely a prosecution. Speaking to a national newspaper last month, Dr Lynsey Mitchell of Strathclyde University, and a member of Abortion Rights Scotland, argued that abortion is still a difficult area for lawmakers.

“Our position along with a lot of international human rights organisations is that abortion is healthcare and procedures should be decided on medical evidence.

“However, that's not historically how politicians in the UK have approached abortion. There remains a stigma around talking about abortion in politics. That needs to change. Especially when there is so much movement internationally on recognising abortion care as healthcare.”

The Royal College of Obstetricians & Gynaecologists made their position clear last year, when, along with the Faculty of Reproductive Healthcare, they argued that abortion should be decriminalised across the UK. “Abortion care is a core service underpinning women’s health and wellbeing. All women should be able to access abortion services easily and without fear of penalty or harassment,” they said, pointing out that there are still too many cases of women and girls terminating their pregnancies past the current legal limit.

“Many of these women are extremely vulnerable, for example victims of domestic abuse and women with a history of mental health problems, and the operation of the current law means that rather than being provided with the care, compassion, safeguarding and support they need, they are being criminalised.”

The challenge for campaigners here in Scotland is to spell out what changes to the law they think are required, and that includes the First Minister Humza Yousaf, who promised during his leadership campaign to decriminalise abortion within the lifetime of this parliament. Meanwhile, there are many urgent, practical issues than should be addressed to support the growing number of women who require a termination.

Last month, Public Health Scotland reported a significant increase in the number of procedures carried out in Scotland in 2022. There were 16,584 – an almost 20 per cent increase on 2021. Perhaps of even more significance is the growing gap between women in Scotland’s most deprived areas who seek a termination – almost twice as many as in Scotland’s better-off neighbourhoods. And while teenage abortion rates have declined in the past decade, there was a notable rise in the 16-19 year-old age group last year. We surely need to understand why.

The overwhelming majority of terminations – 80 per cent – are carried out at under nine weeks' gestation, with only one per cent at 18 weeks or over. Scientific advances since 1967 mean that women can be prescribed medication to use at home for an early medical termination.

Yet this essential aspect of women’s healthcare remains contentious, as shown earlier this week when Scottish Green MSP Gillian MacKay lodged a members’ bill in the Scottish Parliament to end protests outside abortion clinics. If passed, her law will create 150-metre buffer zones outside abortion clinics so that women can access healthcare without fear of being screamed at by ‘pro-life’ protestors, as happens now. Imagine a man facing the same trauma when going for a vasectomy.

And the Scottish Government must act to ensure that all women and girls can access abortion services as and when required. This newspaper revealed last year that women are forced to go to England for a termination because some Scottish health boards refuse to carry out the procedure past 18 weeks, despite the legal limit being 24 weeks.

It tells us everything we need to know about women’s place in society in 2023 that, six decades after the Abortion Act was introduced, this vital aspect of women’s healthcare is still the subject of dispute, moral outrage and inconsistent application of the law.

Abortion is on the rise in Scotland and women need healthcare, not moral outrage - Susan Dalgety