Analysis: Early medical abortion cannot take place at home

15 February 2011 by

British Pregnancy Advisory Service v Secretary of State for Health [2011] 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.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:


  1. moira macdonald says:

    one of the rights for women which we feminists wanted in the 60’s and 70’s was free contraceptives and abortion on demand – i.e. each woman to have total control over her own reproductive life

    not for nothing was one of the slogans “get your rosaries off my ovaries”
    Patricharchy in its myriad manifestations has never let any woman anywhere have complete control over her own reproductive life.

    this ignorant episode is just one more paragraph in the ongoing saga of male-centric ideas about whether human rights apply equally to females as to males.

  2. Have I understood this correctly?

    The law was written at a time when having an abortion meant having an operation-like procedure. It said that this had to be done in a hospital or clinic (there was grave concern at the time, quite reasonably, about unsafe “back-street” abortions).

    We now have drugs that can safely induce an abortion if given early in pregnancy. A woman takes the tablet, and then some hours later she has the abortion at home – like a natural miscarriage.

    But because the law was written when such tablets were available, women still have to attend an hospital or clinic to take the tablets there, even though the abortion will happen later at home, and there’s no need for the woman to go to a hospital.

    Perhaps the judges were correct in their interpretation of the law, and this decision. But it makes it clear that the law is now archaic and should be changed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.


Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza genetics Germany Google Grenfell Health HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
%d bloggers like this: