The right to choose is too important to be swept under the constitutional carpet

Section 61 deals with abortion. It states, first, that the parties were “strongly of the view to recommend devolution” to put an end “an anomalous health reservation”. On the other hand, so very strongly did they hold this opinion they would settle for “serious consideration” and “a process” to “consider the matter further”.

No survivor of committees fails to recognise a topic lofted towards the longest grass. Any real sign of the “process” since? Any sign, until last week, of serious consideration given to abortion and devolved powers on anyone’s part?

In January, Alistair Carmichael, then Scottish Secretary, invited the parties to discussions. There was no flurry of activity. In July, devolution of abortion law was the subject of one of the many failed amendments to the Scotland bill. This one didn’t even come to a vote.

Section 62 – covering “xenotransplantation; embryology, surrogacy and genetics; medicines, medical supplies and poisons; and welfare foods” – also inspired the idea that the governments in Edinburgh and London should hold exciting “further discussions”. Clearly, there was no rush.

It has been an oddity in the constitutional game. Since the Scotland Act 1998 and the restoration of the parliament, all concerned have said, routinely, that health was at the top of the devolved list. Scotland looks after its own NHS and, by extension, its own people. Where priorities are concerned, Scotland’s parliament makes the decisions. It even holds votes on the issue of assisted dying. But not abortion.

There are reasons. Labour has been against devolving this power since the late Donald Dewar was drawing up the constitutional blueprint. Contrary to Lord Smith, the party had no desire to eradicate that “anomalous health reservation” during the commission negotiations. The last-minute threat, in fact, was that Labour would refuse to accept the entire agreement if abortion was to be devolved.

The SNP wanted the power, but it was never clear that the party meant (or means) to do anything with it. Nicola Sturgeon would maintain regulations as they are, with the same legal limit of 24 weeks that holds south of the Border, the limit Westminster refused to reduce in 2008. One school of thought contends, in fact, that the SNP were not unhappy over Labour’s behaviour during the Smith negotiations.

Abortion, as an ethical issue, is complicated; abortion is difficult; abortion tends to inflame emotions, polarise opinions, and consume the time of any legislature willing to allow a woman’s right to choose and the fifth commandment into the same debate. Abortion is the quintessential divisive issue. The stakes, like the passions, are high.

And there’s that other detail: this is Scotland. Let it be known that abortion law is back in the public arena and we know – don’t we? – what would follow. The Roman Catholic hierarchy would be duty-bound to weigh in. Protestant evangelicals, many with addresses in the north of Ireland (where abortion remains illegal), would make themselves heard. All faiths would take a view. And American dollars bearing the religious right’s fingerprints would fund campaigns.

Scotland is supposed to be vulnerable, perhaps uniquely vulnerable, to this sort of thing. There’s truth in that: there are people who want abortion law devolved simply so that abortion can be banned, as in Northern Ireland, where opposition to a woman’s right is one of the few things uniting the DUP and Sinn Fein. The fear is that a Scottish parliament left to its own devices would be pushed down the same path.

Complicated? When the amendment was put down during the committee stage of the Scotland Bill in July, the SNP found themselves supporting “pro-life” MPs. Ranged against them, though not opposed to devolution in principle, were an impressive array of women’s groups, human rights campaigners, and the STUC. They feared that “hasty devolution” could be used “in order to argue for regressive measures” and have “a differential and discriminatory impact”.

In other words, Scotland might retreat into a faith-driven denial of rights, with lethal consequences for health and liberty. Women would be forced either to bear unwanted children or travel to England for terminations. The likes of Engender, Scottish Women’s Aid, Rape Crisis Scotland, YWCA Scotland, the Scottish Women’s Convention, Women’s Support Project and Scotland Amnesty International wanted more time to prepare for the fight.

You could wonder, then, why David Mundell, Scottish Secretary, last Wednesday decided to announce that abortion law would be devolved after all. He had dropped a couple of hints in the summer, but since he was then busy refusing amendments, those received little attention. Why now? This is not Smith being delivered “in full”, as David Cameron likes to boast. It might, on the other hand, make life uncomfortable for Labour and the SNP.

Would a Tory Scottish Secretary stoop so low? That depends what you mean by low. It seems obvious that Mundell wouldn’t be upset if a few wounds were prised open among rival parties. It seems certain he is sending a message to the SNP: “You’re never done shouting about powers. Here’s a grown-up one. Enjoy.”

So be it. One of the few bits of evidence we have for the public’s view comes from a YouGov poll taken a year ago. In that survey, 50% said control of abortion should be devolved, 40% said power should remain with Westminster, and the rest were “don’t know”. If that’s the case, shouldn’t the public view be respected? Suspending the principle of devolution because you’re afraid of possible outcomes misses the point, and then some.

Besides, odd assumptions are being made. We also know, as a matter of record, that Holyrood has managed to debate and vote on section 28, assisted dying, and equal marriage. Where’s the evidence that the parliament would fail women now, or in the future? The forces liable to be brought to bear in any argument over abortion were active in the equal marriage debate. They lost. The influence of the doctrinaire is not what it was, and they know it.

If it ever comes to a contest, the 24-week limit, not abortion itself, will be the battleground. The unlikely possibility of different limits on either side of the Border – unlikely because the risk is obvious – will be raised endlessly. Embryo research, another source of born-again voodoo, will be festooned with myths. Those who believe sincerely that abortion is murder will become very unhappy and very angry.

It can’t be avoided. It shouldn’t be avoided. The right to choose is too important to be swept under the constitutional carpet. The point of devolution is the right to decide. And to exercise the responsibilities that come with a right.