Analysis: Early medical abortion cannot take place at home
15 February 2011
British Pregnancy Advisory Service v Secretary of State for Health  EWHC 235 (Admin) – read judgment
The High Court has ruled that the law requiring that administration of the early medical abortion drugs take place at hospital cannot be read down to allow self-administration at home. The approval of the appropriate place for treatment must be made by the Secretary of State.
The current accepted treatment for a medical abortion up to 9 weeks’ gestation involves the prescription and two-phase administration of drugs at intervals of 24-48 hours. The claimant organisation argued that the requirement for women to return to the hospital or clinic for a second visit created unnecessary stress and hardship and therefore that the term “treatment” in the relevant legislation should be interpreted to mean that only the prescription and issuing of the drugs should take place in a hospital, allowing women to stay at home after the first visit.
In support of this contention the claimant submitted that a primary concern of Parliament in passing the 1967 Abortion Act was to ensure that abortions were carried out safely and in proper conditions. At the time when Parliament was considering the meaning of both “termination” and “treatment”, abortion was considered an invasive form of medical/surgical intervention with potentially serious possible complications. The concerns about the safety of women undergoing abortions could, in 1967, only be met by ensuring that the abortion process was undertaken in a hospital or another medical facility, such as a nursing home.
But since the passing of the Human Fertilisation and Embryology Act 1990, which amended the Abortion Act, the availability of medical abortion had become widespread and other countries, such as France, did not require attendance at hospital at all phases of the treatment. In practical terms the claimant was contending for an interpretation which allowed the prescription of misoprostol (the first-phase drug) and mifepristone (second-phase) at the same time; they can then take the misoprostol home and self-administer there, in the comfort and support of their own home.
They submitted that the safety of the abortion was unaffected by whether the relevant medication, namely misoprostol, is taken in an approved place or at home. The mischief of the Act was therefore met by defining the treatment as the prescription of the medication rather than the administration.
Claim dismissed. Section 1(3 A) of the Act made clear that the responsibility for approval of a wider range of place (including potentially the home), and for the conditions on which such approval might be given relating to the particular medicine and the manner of its administration or use, lay with the Secretary of State, and not with the medical profession. In Supperstone J’s view the claimant’s interpretation of “treatment” ran counter to the natural and ordinary meaning of the word, which is defined, in the medical context, as
management in the application of remedies; medical or surgical application or service. The words “medical… application” plainly, in my view, embrace the taking of an abortifacient drug.
The judge concluded that there was a clear purpose in the legislation which can only be fulfilled if the Secretary of State’s interpretation of the concept of treatment is adopted.
Although the arguments in this case all turned on the question of statutory interpretation, an appeal could have been made by the claimant organisation to Article 8 ECHR which includes the protection of a woman’s right to private life vis a vis her choices regarding pregnancy and termination. This implied right has developed under a series of successful applications and has been endorsed recently by the Court of Human Rights in the case of A, B and C v Ireland (see our recent posts). Although that case concerned very different facts – the absence of access to abortion in the respondent state – the submissions turned on a very similar issue: the stress caused to women who have to undertake unneccessary and burdensome travel in often traumatic circumstances to receive the treatment. Although the Grand Chamber did not go as far as ruling that the Irish position breached Article 8 it did hold that the lack of practical access was unlawful where the pregnancy could have had life threatening implications.
Although relevant, an argument based on Article 8 in the instant case would not have advanced the claimant’s arguments much further since none of the precedents in the abortion context show any willingness on the part of the Strasbourg Court to descend to any detail as to the accessibility of the procedure and the fairness of the relevant regulation.
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