How Britain’s abortion law punishes women

A High Court challenge brought by the UK abortion provider BPAS against the secretary of state for health concluded on Friday 4 February, and judgement has been reserved until later today. The outcome of this legal challenge will have significant implications for women who have abortions and the doctors who treat them. But it will have no impact at all on the broad effect of Britain’s abortion law. It will not give women the right to an abortion; it will not expand the number of women able to have an abortion; it will not affect the gestational age at which abortion is legally permitted.

The issue at stake is one of legal technicalities and clinical judgement, to do with the manner in which a particular drug is administered in a particular procedure known as early medical abortion (EMA). Yet in opposing the challenge, the Department of Health has signalled that it believes the issue to be highly political. And this raises some interesting questions about the relationship between science and politics in an era of evidence-based policymaking.

On one hand, parliament – whatever its party political hue – seems to want to have nothing to do with abortion: the last time the law was voted on was over 20 years ago. Yet during the BPAS case, the central argument put forward on behalf of the secretary of state for health, Andrew Lansley, was that abortion is a very controversial issue, which the health secretary should decide upon because he (unlike doctors) is democratically accountable. This is a fine argument to make about the abortion law in general, but a strange and ill-fitting argument to make about a distinct clinical protocol based on scientific evidence and international practice. What is going on here?

The BPAS case, in brief

BPAS brought this High Court challenge because it wanted to bring the provision of a procedure known as early medical abortion (EMA, or the ‘abortion pill’) in line with best practice. EMA is one of the procedures currently used in Britain for abortion at gestations of nine weeks or less. It involves taking two drugs approximately 48 hours apart: the first (mifepristone) effectively ends the pregnancy; the second (misoprostol) causes the woman to undergo a process similar to a miscarriage.

Currently, women take the first tablet at the clinic, and need to return to the clinic two days later to take the second (which she administers herself), before going straight back home again. This is an enormous inconvenience for the woman, and there is no clinical justification for her returning to the clinic. In countries as diverse as the US, France, Sweden and Vietnam, it is standard practice for women to be given the second drug at the first appointment, with instructions about taking it two days later at home. This saves them travelling time, gives them more control over when the ‘miscarriage’ might start, and reduces the risk that they may start to bleed on the way home.

‘Home use of misoprostol’, therefore, is a completely sensible protocol that is used in many countries and approved of by clinicians internationally. In Britain, the Royal College of Obstetricians and Gynaecologists, in its recent draft evidence-based guideline on induced abortion, stated that: ‘It is clear that women who are able to choose their method of abortion are more satisfied with the outcome than women denied a choice. Neither early medical abortion nor home administration of misoprostol suits all women. However, published data do not suggest any clinical reason why women should remain in hospital during their abortion and demonstrate that it is safe for women to administer misoprostol at home.’

So why can’t this completely sensible protocol be put into practice in Britain? Briefly, because the abortion law – the 1967 Abortion Act, as amended by the 1990 Human Fertilisation and Embryology Act – stipulates that ‘any treatment for the termination of pregnancy’ must be carried out in an National Health Service hospital or a place, or class of places, approved by the secretary of state. This law is interpreted as applying to both drugs used in early medical abortion. Because of the inflexibility of this interpretation, it has been impossible even to carry out trials of home use of misoprostol in Britain, as by sending women home with the drug doctors would lay themselves open to prosecution.

For 10 years now, BPAS has been discussing with the Department of Health the possibility of the secretary of state using his legal powers in relation to the Abortion Act (as amended) to allow for home use of misoprostol. The fact that the health secretary has not done so, combined with the growing weight of international evidence indicating that home use of misoprostol is the best clinical course of action and the growing use of early medical abortion by British women, led to the decision to ask a High Court judge to rule on an interpretation of the law.

BPAS is asking that the definition of ‘treatment’ be interpreted as the prescription of drugs for EMA, rather than their administration. In practice, it is already the case that the doctor prescribes the drugs and the woman takes them herself – a different interpretation of the law would end the statutory requirement that she returns to the clinic for the second drug. This would allow for the practice of EMA to be controlled primarily by clinical regulations in accordance with the broad scope of the Abortion Act.

The Department of Health’s opposition to BPAS’s case is based on the argument that the decision about how the law should be interpreted and implemented in relation to EMA should rest with the secretary of state. And indeed, given that the Abortion Act is a piece of parliamentary legislation relating to an area that is politically and morally controversial, the argument that parliament should be the body that decides to change it is an attractive one.

But there are two problems with this argument. First, since the creation of the 1967 Abortion Act, parliament has consistently distanced itself from bearing direct responsibility for the provision of abortion. Second, while abortion as a question of politics and legal rights clearly should be the preserve of parliament, how far should it be the jurisdiction of the health secretary to make, or interfere in, matters of clinical practice?

Science and politics in Britain’s abortion law

In passing the 1967 Abortion Act, Britain became one of the first countries in the world to make abortion legal. The two motivating factors behind the Act were women’s safety and a general spirit of tolerance. The concern for safety led the Act to move women from unlicensed ‘backstreet’ abortion providers into hospitals, where they would be spared many of the horrendous complications that gynaecologists witnessed when abortion was illegal. The spirit of tolerance that extended towards women who did not want to continue their pregnancies was also reflected in other pieces of progressive legislation at that time, such as the Homosexual Reform Bill (1).

But the 1967 Abortion Act had some important limitations. It does not give women the right to abortion; it defers judgement about who should have an abortion to two doctors, who must authorise the procedure on the grounds that continuing the pregnancy to term would damage the woman’s mental or physical health. This stands in contrast with more recent laws developed by other countries, in which women have the right to ‘abortion on request’, at least in the early stages of pregnancy. In defining abortion, not as a woman’s legal right, but as an exemption from criminal prosecution on grounds of her health, the Abortion Act effectively outsourced the ‘abortion problem’ to the medical profession.

Since then, very little has changed. The last time the abortion law was voted on in parliament was over 20 years ago, under a Conservative government, when the Human Fertilisation and Embryology Act (1990) set a gestational ‘time limit’ of 24 weeks after which abortions could not be performed unless in exceptional circumstances, and gave the health secretary the power to approve a ‘class of places’ in which abortions could be carried out. The health secretary could have used this power to approve practical ‘updates’ to the abortion law, such as permitting home use of misoprostol in EMA, or approving GPs’ surgeries as providers of EMA drugs; but to date he has not done so.

When parliament approached the abortion issue in 2008, in the context of the Human Fertilisation and Embryology (HFE) Bill, it again fought shy of making any changes to the abortion law. A review of the law was outsourced to the House of Commons Science and Technology Committee (STC), which gathered evidence on ‘scientific developments relating to the 1967 Abortion Act’. The STC’s report highlighted a number of issues for members of parliament to consider, including the case for removing the need for two doctors’ signatures authorising the abortion; recommendations allowing greater responsibility for nurses already involved in service provision; and the recommendation that there were no reasons of safety, efficacy or acceptability for not allowing women to have the second stage of medical abortion at home.

But the then New Labour government guillotined discussion of the HFE Bill in such a way that proposed clauses related to abortion could not be discussed. Thus, scientific evidence pertaining to the abortion law in practical terms was ignored by politicians, in addition to important debates that could have been had about the moral and political dimensions of Britain’s abortion law – for example, whether it is right that approximately 200,000 women each year have to be formally certified as mad before they can end an unwanted pregnancy.

As I argued back in 2007 during the STC’s inquiry, ‘while scientific and medical developments are crucial to the practice of abortion, informing such decisions as how the abortion is performed and who is able to perform it, it remains the case that the principle of abortion is a moral and political question, which cannot be resolved by science’. In the same vein, it would be wrong to argue that clinical advances should determine the abortion law. For example, just because abortion is now easier to provide tells us nothing about whether more women should be permitted to have them. But nobody is arguing that.

The question of home-use of misoprostol relates only to women for whom abortion has already been deemed legal, and who will have an abortion regardless of where they take the drugs. It will make the procedure easier, not in the sense of easier to obtain in the first place, but in terms of the experience of the woman undergoing an abortion that will happen anyway. And this is where the Department of Health’s apparent decision to put its political stamp on this clinical issue starts to look, not only cowardly, but downright vicious.

The health secretary’s reluctance to approve home use of misoprostol has been justified all along with reference to the controversial nature of abortion, and concern about the way a decision to allow ‘home abortions’ would play out in the media. But the reportage of the BPAS case so far indicates that even those sections of the media that generally take a principled stand against abortion struggle to see home-use of the second drug as anything other than a pragmatically sensible move.

With some notable exceptions, even those who have a principled objection to abortion do not think that those women who are having abortions should be put through more distress than they are already experiencing, just to satisfy the requirements of a law developed over 40 years ago, in very different circumstances and with very different clinical procedures.

By stressing that permitting home-use of misoprostol is a decision for the health secretary, and refusing to make that decision, it seems as though the course of action policymakers have decided to adopt is one that actively punishes women for having abortions, by making the procedure even more unpleasant than it needs to be. In this regard, the Department of Health’s case flies entirely counter to the spirit of the 1967 Act, which was to make abortion safer and less traumatic for women.

It also runs counter to the spirit of the 1967 Act in terms of the trust that this piece of legislation placed in the medical profession. Doctors were charged with every aspect of the abortion process – certifying that a woman needed an abortion, providing the abortion, and caring for the woman after the abortion. The parliamentarians who produced that law did not stipulate which kinds of anaesthetic, drugs or surgical equipment the doctors should use; these were considered to be clinical matters about which doctors knew best, and which would change as science and practice developed.

One could well argue that, in passing the buck to doctors for deciding who could have an abortion, these parliamentarians ducked out of their responsibility to be ‘democratically accountable’ for the abortion law as a whole. And if, in 2008, parliament had actually used the Science and Technology Committee’s recommendations in order to provide specialist background knowledge and opinion for the purpose of informing a debate about and vote on the political and moral aspects of abortion law and provision, the health secretary would indeed be standing accountable to the electorate for decisions in this area.

But for a politician to take it upon himself to determine the minutiae of how abortion drugs are administered in no way makes him ‘democratically accountable’ for abortion: it merely speaks to a distrust of the medical profession’s ability to make clinical judgements about patients.

During the BPAS court case, the way that the health secretary’s QC justified the need for statutory law on the practice of abortion in terms of stopping medications being prescribed ‘at the whim of the individual doctor’ revealed an underlying anxiety that, left to their own devices (and the myriad official codes that govern clinical practice), doctors would behave like irresponsible charlatans. Funnily enough, the health secretary doesn’t feel the need to control the clinical practice of neurosurgeons in the same way.

Where does this leave Britain’s abortion law?

Unfortunately, shying away from a democratic debate on the abortion law while politicking around the edges of existing legislation is not confined to the BPAS High Court challenge on home-use of misoprostol. Attempts to reduce the ‘time limit’ within which abortions can be provided, and discussions about the need for a ‘cooling-off period’ between women having a consultation for abortion and having their treatment, are some recent ways in which some anti-abortion politicians have attempted (unsuccessfully) to make Britain’s law more restrictive.

What is curious in this instance is that the Department of Health is hardly ‘anti-abortion’. Over the past decade, it has done an enormous amount to increase funding and provision of abortion, particularly emphasising the importance of abortions taking place earlier, rather than later, in pregnancy. Andrew Lansley himself has previously expressed his opinion that an ‘early and medical abortion’ is better than an abortion that is ‘later and surgical’, and to that end would support scrapping the ‘two doctors’ rule for earlier abortions while tightening up regulation for later terminations.

Without in any way endorsing the idea that later or surgical abortions are somehow worse than (or even morally different to) early medical abortions, it is interesting to note that the resistance to permitting home-use of misoprostol does not seem to be a politically motivated attempt to undermine abortion provision. Rather, it seems to represent a sense of being out of touch with public and media opinion, and a fear of being out of control of the medical profession. In this situation, doing nothing may appear the safest option for politicians.

What they may not fully recognise is that neither clinical practice nor public opinion stands still. Attitudes to abortion have changed enormously since 1967, and clinical practice is now so different from that which the law originally intended to recognise that it risks making the law an ass. If all this leads beyond the High Court to a proper political debate on the abortion law, those who consider themselves pro-choice would be delighted. Whether this is what the democratically accountable health secretary actually wants is another matter.

Jennie Bristow is editor of the BPAS publication Abortion Review and author of Standing Up To Supernanny, and co-author of Licensed to Hug. (Buy these books from Amazon (UK) here and here.)