ECPS: swallow the facts

In the action brought by the UK anti-abortion organisation the Society for the Protection of Unborn Children (SPUC), lawyers for the Society are contesting the decision taken by the UK government in 2001 to license sales of emergency contraceptive pills (ECPs) in pharmacies.

The government’s decision means that ECPs, sometimes referred to as the morning after pill, can now be bought over the counter. SPUC is contesting this decision at the High Court in London, using what appears to be an outdated law and a semantic medical debate.

But a closer look at the case reveals a broader issue. However it looks in the UK today, we still live within a regulatory framework that criminalises women’s attempts to regulate their fertility.

SPUC is arguing that selling ECPs in pharmacies breaches the terms of the 1861 Offences Against the Person Act. Section 58 of this Act criminalises an attempt to ‘procure a miscarriage’, stating that: ‘Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with like intent, and whosoever, with intent to procure the miscarriage of any woman whether she be or be not with child…..shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment.’

Under this Act, both the person who administers the ‘poison’ or uses the ‘instrument’ to ‘procure a miscarriage’, and the woman herself, is guilty of an offence – whether the woman concerned is actually pregnant or not.

The 1861 Act is currently considered irrelevant to the provision of ECPs (and all contraception) because emergency contraceptive pills are not deemed to cause a miscarriage. It is considered that a miscarriage can only happen when an embryo is implanted in the womb, and ECPs prevent this taking place. Thus a distinction is made between contraception and abortion, since the latter is regulated by the 1861 Act. The 1861 Act underpins the regulation of abortion in Britain – the 1967 Abortion Act (as
amended) creates a defence for doctors against the criminality of abortion, by deeming it lawful for them to authorise an abortion on the grounds set out in that Act.

Consequently, in Britain abortion is essentially still a criminal offence, except in certain narrowly defined cases.

SPUC’s case against the sale of ECPs is based on the argument that this distinction between abortion and contraception is misplaced. SPUC’s Queen’s Counsel, Richard Gordon, has told the High Court that the provision of ECPs does breach the terms of the 1861 Act, arguing that at the time when the Act was passed, the understanding was that pregnancy began with fertilisation. Therefore, contends SPUC, ECPs can be considered prohibited under the 1861 statute, since, through preventing the implantation of the fertilised ovum in the lining of the womb, they cause a pregnancy to end.

SPUC’s action is opposed in the High Court by the UK Department of Health, which is expected to argue that taking ECPs do not lead to miscarriage, because the modern understanding is that a pregnancy does not begin until the fertilised egg has implanted.

Will this case mean the end of women’s ability to buy the morning after pill in pharmacies? This seems unlikely. Medical opinion in general accepts the distinction between fertilisation and implantation. This distinction has been given greater weight by the development of technologies such as in vitro fertilisation (IVF). With these technologies, fertilisation takes place outside of the woman’s body, and few would consider that a pregnancy had begun in the petri dish. Most would agree it begins when the fertilised egg implants in the woman’s uterus.

The current court case is likely to be dominated by such a medical discussion. Most of the first day of the hearing, on 12 February, was taken up with reviews of medical literature from the nineteenth century. According to SPUC’s lawyer, this literature demonstrated an understanding of the basic process of conception and implantation. ‘Ultimately’ he said, ‘the resolution of the challenge lies in an analysis of the word miscarriage as used by parliament in 1861 and as used today’. It seems likely that the
evidence given by the lawyers for the Department of Health will be able to indicate that medical knowledge has developed, and that there are good reasons for removing the regulation of ECPs from the terms of the 1861 Act.

Beyond the medical and legal discussion, changes in attitude towards contraception and abortion make the case put forward by SPUC seem bizarre. In the discussion of the case so far, SPUC’s position – which implies that women who use the morning after pill are ‘taking a life’ – is marginal. It seems that even SPUC finds its approach hard to believe, since the organisation has been falling over itself to present what it is doing as ‘woman friendly’, not a defence of the ‘unborn’. SPUC’s national director, John Smeaton, told Radio 4’s Today programme on 11 February that the presentation of ECPs as contraception was a ‘cynical deception of women’. In his comment for BBC News online, he even compared his views to those of the feminist writer Germaine Greer, and suggested that SPUC has ‘more trust in women than the Family Planning Association’ does (1). But nobody really believes that SPUC is doing this for the benefit of women.

Even if SPUC does not lose at the High Court, it seems inevitable that the UK government will ensure that ECPs and contraception will continue to be made easily available. As Ann Furedi, director of communications for British Pregnancy Advisory Service told the Today programme, ‘In a civilised, modern society, the government would have to step in to take measures to allow women to benefit from the modern science of contraception’ (2). And, given that the government itself took the move of licensing the morning after pill for pharmacy sale in the first place, it has an interest in defending this policy.

Yet it would be unfortunate if the terms of this whole discussion were not considered further, and more thought given to the issues raised. Discussion of the issues this case throws up should not end once the practicalities of making sure women can get ECPs easily are resolved. Rather, the case provides the opportunity to think seriously about how we should best understand, and regulate, methods of fertility control.

A useful starting point would be experience of women. For the woman who fears she may be pregnant and doesn’t want to be, it of course makes no difference whether medical opinion believes that pregnancy begins at conception or implantation. While the ins and outs of this distinction will matter in the Court, from the point of view of what women need, this medical question is surely not the main concern.

A woman who does not want to be pregnant just wants to end the pregnancy. The
provision of ECPs ‘over the counter’ has been a significant gain for women in this respect. Stories now abound of women’s relief at being able to get to chemist, not have to wait for appointment with a doctor or at a clinic, and get the pills without having to endure disapproval from some health care professionals.

Experience tells us that women want and need to be able to regulate their fertility. To meet this need, the best solution would be a regulatory framework that recognises it and takes it seriously. From this perspective, the starting point must surely be the removal of the regulation of the means of fertility control from the criminal law entirely. What is the point in having a law that deems it criminal offence to ‘procure a miscarriage’? Who
could possibly gain from this kind of a law?

It is likely that the UK government will want to avoid debating this issue, and will prefer instead to restore the status quo, where contraception is placed outside the criminal law, and abortion within it. Because to move beyond the practical issues raised by the SPUC case, and to think about the issue more widely, has implications (as SPUC well knows) well beyond the provision of emergency contraception. But it would be a pity if, because of the wish to make sure women can obtain emergency contraception, society refuses to confront the problem of a law that defines the removal of a fertilised egg that has implanted in the uterus as a criminal offence.

One positive outcome of this case is that it provides an opportunity open up a debate on this issue. We should begin to ask why, in twenty-first century, we still live in a society that refuses to take the step of regulating fertility control on the basis of what it really is – not an act that should be criminalised, but a measure taken by women who want to be in control of deciding when and in what circumstances they have children. In this sense,
abortion should no more be a matter for the criminal law than emergency contraception.

What women need and deserve is to live in a society that shows it takes them seriously enough to have laws that reflect their right to decide on a matter so fundamental to their lives as pregnancy.

Ellie Lee is coordinator of the Pro-Choice Forum, and a research fellow in the Department of Sociology and Social Policy at the University of Southampton. She is the author of Abortion, Motherhood, and Mental Health: Medicalising Reproduction in the United States and Great Britain, Walter de Gruyter, 2004 (buy this book from Amazon (UK) or Amazon (USA)). She is also the editor of Abortion: Whose Right?, Hodder Murray, 2002 (buy this book from Amazon (UK) or Amazon (USA)); Designer Babies: Where Should We Draw the Line?, Hodder Murray, 2002 (buy this book from Amazon (UK) or Amazon (USA)); and Abortion Law and Politics Today, Palgrave Macmillan, 1998 (buy this book from Amazon (UK) or Amazon (USA)).

Read on:

Defending abortion – in law and in practice, by Ann Furedi, Dr Ellie Lee

spiked-issue: Abortion

(1) Head to head: Contraception challenge, BBC News, 12 February 2002

(2) Legal challenge to morning-after pill, BBC News, 12 February 2002