On 31 January 2022, the Times reported that leading doctors were warning of “illegal abortions danger”. Their concern was that regulations introduced to permit telemedicine services for abortion during the pandemic are due to come to an end on 30 March 2022. Previously, abortion medicines could only be taken in a hospital or clinic. Now, women seeking an abortion up to 10 weeks’ gestation may have a telephone assessment, whereafter the pills are posted to their home for self-administration. At time of writing, it has been reported that the government has said it will extend the approval, but details are yet to come.
The Abortion Act 1967 requires any treatment for the termination of pregnancy to be carried out in a hospital, place or class of places approved by the Minister. In December 2018, the Minister made an Approval where a woman could attend a clinic, be prescribed both pills and take the first pill at the clinic. The home of the pregnant woman was approved as a place to take the second pill. A further Approval of 30 March 2020 approves a pregnant woman’s home for taking both abortifacient pills, so long as the woman has had a consultation with a medical practitioner electronically or telephonically. This followed concerns raised about the effect of the lockdown on women’s ability to obtain an abortion.
The lawfulness of the March 2020 Approval was unsuccessfully challenged in the Court of Appeal in R (Christian Concern) v Secretary of State for Health etc. (25 September 2021). The Court noted that a 1981 House of Lords’ decision determined that a doctor is required to remain in charge of and accept responsibility for all stages in the termination, but does not have to perform every part of it. Nurses and other hospital staff could play a part in the process.
The main argument was that the March 2020 Approval was unlawful because i) it permitted a pregnant woman to self-administer the abortifacients at home, when section 1(1) of the Act says: “ a pregnancy is terminated by a registered medical practitioner”; (ii) the medical practitioner was unable to make all material decisions, monitor and remain in control of the process; (iii) not attending at a clinic meant that a doctor could not assess the pregnancy, any risk, or the gestational age – which must be less than 10 weeks.
The Court said that the policy of the Act is to enable women to access regulated services and obtain legal terminations in safe surroundings; context must take account not only of developments in medical science and practice but also of prevailing conditions. The Act does not require either of the two doctors certifying an abortion to have seen or examined the woman. Under the 2020 Approval, the doctor was said to remain in charge throughout the procedure, which had been altered to reflect the changing and challenging times. The Royal College of Obstetricians and Gynaecologists’ guidance was that the woman’s word was primarily relied on for gestational age, ultrasound scanning being the exception rather than the norm
The Court rejected a submission that the policy of the Act is that a Minister can only approve a regulated environment such as a hospital or clinic. It reasoned that the Act confers on the Minister the function of deciding whether a place/class of places is suitable.
An internal NHS e-mail dated 21 May 2020 highlighted the Care Quality Commission’s concerns about the “escalating risks” associated with “Pills by Post”, giving examples of incidents said to have led to patients’ deaths in May 2020. The Court noted that as a result the decision had been made “to keep the process under review and report any incidents to the regional chief midwife. The seriousness of a relatively small number of incidents has been acknowledged and acted upon. The court does not minimise the seriousness of any incident but of itself this e mail takes the issues in this appeal no further”.
It seems unlikely any Approval which authorises telemedicine abortion services could now be successfully challenged. It is a long-standing legal principle that when a Court interprets a statute it does not have regard to exchanges in parliament. In June 1990, when debating the provision empowering the Minister to approve a class of places for termination treatment, Ann Widdecombe said: “I believe that that is merely a paving measure – even if it is not intended as such – for self-administered home abortion.” The response from Robert Key MP was: “That is not the intention and, quite inadvertently I am sure, my hon. friend has been very misleading.” Far from misleading, Widdecombe put her finger on the potential elasticity in the drafting.
Sir Stephen Stewart is the former president of the Thomas More Society.
This article first appeared in the March 2022 issue of the Catholic Herald. Subscribe today.
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