Why do we Punish? Interrogating the Role of Criminal Law in Abortion Legislation

This chapter critically explores the punitive framework underpinning abortion legislation in England and Wales, interrogating the continued use of criminal law in the regulation of reproductive healthcare. While often perceived as liberal due to the Abortion Act 1967, abortion remains criminalised under the Offences Against the Person Act 1861, with the 1967 Act merely offering limited exemptions. The authors trace the historical and legislative evolution of abortion law, demonstrating how outdated criminal provisions persist in a contemporary landscape where most abortions are medically managed and widely supported by healthcare professionals. Drawing on empirical data, case law, and high-profile prosecutions—including those of Carla Foster and Sarah Catt—the chapter argues that criminal sanctions disproportionately impact vulnerable women and serve no clear rehabilitative, deterrent, or protective purpose. Instead, they function primarily as retributive tools rooted in moral condemnation. The analysis situates this punitive approach within broader theoretical frameworks of punishment and questions the legitimacy and proportionality of imprisoning women for terminating pregnancies beyond statutory limits. International developments, such as the decriminalisation of abortion in Ireland and Northern Ireland and moves in Europe to constitutionalise abortion rights, are presented as progressive alternatives. The chapter concludes that the use of criminal law in this context undermines bodily autonomy, reinforces stigma, and is inconsistent with modern public health and human rights norms. It advocates for the decriminalisation of abortion and a legal model grounded in compassion, autonomy, and access to healthcare—eschewing retribution in favour of dignity and reproductive justice.