Section 304: Attempted abortion is not punishable

Firm annotation

Section 304 is an exemption from punishment, not a rule about guilt. Its words are that the person “shall not be punished”, so the attempt remains an offence in law but no punishment is imposed for it. The scope is narrow and closed. It covers only an attempt at Section 301, a woman causing her own abortion or allowing another to cause it while the age of the pregnancy exceeds twelve weeks, and an attempt at Section 302 paragraph one, causing a woman to abort with her consent. Everything else stays under the general rule in Section 80, which punishes an attempt at two thirds of the penalty for the completed offence. So an attempt at Section 303, causing an abortion without the woman's consent, is punishable, and so are the aggravated tiers of Section 302 in paragraphs two and three where grievous bodily harm or death results. The word “merely” also matters: the section speaks to the attempt alone, so where the attempt itself injures the woman the ordinary offences against the person may still apply. Section 304 should not be confused with Section 305, which is a different and stronger protection: where a medical practitioner acts in accordance with the rules of the Medical Council in one of the listed cases, there is no offence at all.