Our 10-year struggle to improve abortion care

On Valentine’s Day 2011, the Honourable Mr Justice Supperstone, sitting in London’s High Court of Justice, ‘in the matter of the Abortion Act 1967’, found against the British Pregnancy Advisory Service (BPAS) and for the secretary of state for health. It’s a crying shame; BPAS was trying to solve a problem that has been annoying women, abortion providers, and, paradoxically, health officials for the past decade.

At issue was whether the 1967 Abortion Act could be interpreted in line with advances in medical science enabling early medical abortion patients to take some of the medication at home rather than in a clinic. This would have put an end to women making multiple, medically unnecessary visits to clinics and eliminated the risk of abortion symptoms beginning – and in some cases the miscarriage itself occurring – as they travelled home after taking the tablets. It would have brought UK medical abortion practice, governed by laws dating back to the 1960s (when abortion pills would have seemed like futurist science fiction), into line with international standards of care.

There is no clinical argument against the change that BPAS wants to bring about. As I recently explained in an article for spiked, at issue was what seems to be a very superficial change to current practice. Currently, a woman opting for an early medical abortion has to administer the medication necessary to prompt bleeding and cramping in a clinic and then travel home. The BPAS change would have allowed doctors to give her the tablets to take once she got home – if this is what she wanted.

In our experience this is what most women want. Only exceptionally do women wish to stay at the clinic for an unpredictable number of hours until their miscarriage is complete. They prefer to be able to be at home, in their own surroundings, with whomever they want to be with. The current problem is that once the tablets are taken, symptoms can start at any time. It is usually a couple of hours – but it can be later, or sooner.

BPAS was prompted to go to court because we were concerned about our clients’ anxiety about having symptoms as they were travelling. Given that some women live some distance from their clinic, and public transport is notoriously unreliable, the fear is real. Using the abortion pill, even in these circumstances, is a choice that women want and value. But it is ridiculous. Abortion is always a trial – why make it more so? If an abortion is legal, and the woman wants one, and the abortion pill is the best method for her – why not let her use it in the safest, most appropriate way? The Royal College of Obstetricians and Gynaecologists has recently recognised this, issuing guidance confirming that home-administration of the drug in question is backed by evidence and would be fine if it were legal.

Health officials have argued constantly that there is no alternative to the status quo because the 1967 law states that ‘treatment for the termination of pregnancy must be carried out in a hospital … or place approved [by the secretary of state]’. And so it does. But other countries have found sensible work-arounds.

Sweden, for example, has a similar legal framework to Britain’s, with abortion treatment limited to hospitals, but policymakers managed by accepting that the first medication is, in effect, the treatment for the termination of pregnancy that must be restricted to a hospital. Consequently, they allow the protocol that BPAS wants, applying common sense to where the follow-up medication is taken. Britain’s Department of Health (DoH) ruled this out here, insisting that both the mifepristone (which blocks the pregnancy hormones) and the misoprostol (which triggers the expulsion of the pregnancy) are equally abortion treatment.

But it was the inspiration of the Swedish ‘where there’s a will, there’s a way’ spirit that led BPAS to challenge the definition of ‘treatment’ as it might apply to the abortion pill. The argument was relatively straightforward. Accepting that ‘treatment for abortion’ must take place in a clinic, we asked if treatment could mean the prescription and issuing of the tablets and not its actual administration. This is not a particularly perverse definition. When I see the doctor with a sore throat, I tend to think of him treating me when he examines me and prescribes me the antibiotics; I don’t think ‘the doctor is treating me’ every time I swallow a pill.

Furthermore, we argued that prescription-as-treatment rather than pill-administration-as-treatment would accord perfectly with the spirit of the law, as the requirement for abortion treatment to be carried out in specially approved places was all about making it safe. Early medical abortion treatment as the prescription and issue of drugs from an approved place would accord with this – in fact, arguably it would be even safer – as it eliminates the small but not insignificant risk of miscarrying in somewhere like a train lavatory.

We felt we had a fighting chance of success. Discussion with the DoH on the desirability of home-use had started in 2001, when BPAS learned from abortion experts in the US how home-use of misoprostol worked there. With the intellectual backing and offer of research support of a leading international New York-based research body, I drafted a proposal for a study to pilot its acceptability here. The research was never approved.

Evidence to the High Court included a trail of correspondence and meeting minutes between BPAS and officials that would be hilarious if the consequences didn’t have such a serious impact on people.

• In June 2001, BPAS was told that the minister was ‘interested’, but then nine months later was told the DoH’s legal team had not yet taken a view.

• In June 2002, the department wrote to say they were ‘extremely busy’ but would respond the following month. They didn’t. Ten months later, the following March, the department said that pressures of other work meant they were still seeking legal advice.

• In June 2003, there was a glimmer of hope when officials convened an ‘Abortion Services Group’. BPAS was told that home-use could be legal and were asked to resubmit the study proposal. But in December 2003, officials wrote saying that although the DoH remained ‘very committed’, a judicial review on an abortion-related matter made it ‘unlikely that ministers will want to announce a decision on home-use’.

• In July 2004, BPAS met with officials to be told that the minister ‘did not want to consider [BPAS’s] proposal for home-use of misoprostol at this time’.

When, in January 2007, the then health minister Caroline Flint made it clear at a face-to-face meeting that there would be no review of home-use in the immediate future, a court application seemed to be the only way. Even then, discussions continued with officials – until 25 February 2010, when talks broke down and court papers were prepared. As a department insider commented on the lengthy fiasco: ‘Not so much Yes Minister as The Thick of It’.

In the decade that has passed, the number of early medical procedures carried out by BPAS has increased from 2,600 a year to more than 17,000 a year. While official thumbs have twiddled, nearly 85,000 women have received early medical abortion treatment from BPAS that has been good, but not as good as it could have been.

The question we are all left asking is: why have successive ministers been so intractable?

There are no clinical reasons to worry about home-use. There really aren’t! Once it was accepted that it was okay for women to experience their early miscarriage at home – and this is now pretty standard throughout the country – allowing the tablet to be administered at home became a clinical non-issue. Issues of clinical concern are that women should be in an appropriate environment and properly supported with access to advice and medical support in the rare event that things go wrong.

Worries about the medication being misused are similarly easy to dismiss. Misoprostol is already widely available in home settings, just not for use in abortion. Its most common use is for the treatment of stomach ulcers, so it’s probably lurking in many a bathroom cabinet. Women who have spontaneous miscarriages are often prescribed it for use at home to manage any retained products of conception. Besides, women who receive the pills for abortion are motivated to use them for that purpose.

The suggestion that women might not be capable of using them properly is simply insulting. The tablets are simply placed in the vagina (or swallowed or dissolved in the cheek). This is possibly less complicated than remembering to feed the cat, put fuel in the car, and many other tasks that women are trusted with. This is not to trivialise abortion, but to recognise that this second part of treatment is just a small, simple part of the process.

So is the current Lib-Con government just ‘against abortion’ in principle?

I think that is unlikely. In a recent spiked essay I argued that abortion is often perceived as ‘wrong’ but, at the same time it is normally accepted as the ‘right’ thing to do in certain circumstances.

No one likes the idea of abortion, and everyone agrees it would be better if unwanted pregnancies were prevented. Ministers and civil servants are no exception. But when contraception fails, or people fail to use it effectively, abortion is usually seen as preferable to the alternative: an unwanted birth to an unwilling mother. This tends to be as true for traditional Tories as it is for New Labour.

It would be difficult for government to eschew support (at least, qualified support) for abortion and continue to maintain other values it holds dear. For example, society attaches huge importance to the wantedness of children and the responsibility that their parents have for their care. It is seen as right and proper that people should plan their families. At the same time, sex is seen as a normal, healthy part of an adult relationship: most people accept sex is an expression of love, intimacy and pleasure; no longer is it, normally, just associated with the intention to reproduce. It follows from this that preventing the conception of unplanned, unwanted children using contraception is seen as responsible and moral. It also follows that, when contraception fails, even many social conservatives accept that abortion may be used as a ‘back-up’ to prevent an unwanted birth.

Abortion is now a part of ‘public health’. Almost all abortions are commissioned and funded by the state healthcare system, and access to early abortion has been part of official national strategies to improve sexual health. Today, abortion is seen by most people as ‘socially necessary’ because, without it, the inevitable and unavoidable large numbers of unplanned pregnancies will result in the social cost of unwanted children born to unwilling mothers.

Over the past decade or so, the ‘qualified support’ for abortion has been framed in a policy that has accepted that if women must have abortions, they should be as early as possible. Health officials know that the provision of early medical abortion makes this easier and imposes fewer demands on the National Health Service.

BPAS’ proposals make perfect sense policy-wise. It is counterintuitive and counterproductive for ministers and officials to oppose them. But for one firm belief, which was expressed clearly in the Supperstone judgement.

Paragraph two of the judgement begins: ‘Abortion remains a controversial subject in respect of which there are differing deeply held views.’

Throughout the decade of discussions, officials have iterated their fears repeatedly about how proposals for home-use of abortion drugs will be reported by the press and received by the public. They do not seem to appreciate that times have changed to the point where abortion is accepted and acceptable – especially in the earliest weeks of pregnancy.

There is no publicly influential anti-choice movement in Britain, beyond a few vocal (and generally risible) parliamentarians with profiles disproportionate to their real influence. Yes, there are still protests against abortions at clinics, but they are infrequent and small.

The media coverage of the recent court case is an accurate reflection of the general opinion – overwhelmingly balanced and accurate, and implicitly supportive. BPAS may not have achieved a victory in the court but it certainly achieved a national media discussion of abortion that avoided the usual polarised perspectives. For example, the Sun ran coverage under a headline ‘Legal bid to let women end pregnancy in private’, with agony aunt ‘Dear Deirdre’ advising: ‘It makes sense to make it more straightforward to end a pregnancy before nine weeks… it is in no one’s interest to make women have babies they can’t welcome, so let’s not make termination any more stressful than it need be.’ Even the Daily Mail was balanced.

And even as regards the court judgement, there was a win in the losing. The Honourable Mr Supperstone ruled that a 1990 amendment to the Abortion Act (S1(3a)) gave the secretary of state the ability to react to ‘changes in medical science’ by giving him ‘the power to approve a wider range of place, including potentially the home’ (para 32; emphasis added).

In short, the judgement gives a green light for ministers to allow home-use, albeit via a different legal route to that suggested by BPAS. Given health secretary Andrew Lansley’s stated commitment to evidence-based medicine, patient choice and the liberation of clinicians from bureaucracy, one might assume he would wish to employ his powers, so that doctors may provide women legally accessing early abortion with the best possible care. However, a statement from the Department of Health, rushed out on the afternoon of the judgement, is not promising: ‘There are no plans to use the provision under Section 1(3a) of the Abortion Act for medical abortion to be carried out in women’s homes as an approved class of place.’

The secretary of state, and his officials, clearly are in denial. They may have no plans to improve abortion provision, but BPAS certainly does. As I told journalists when handed the judgement:

‘BPAS will pursue its case to provide an early medical abortion service that is based on evidence and best international practice. Women deserve this, and we would be failing as a charity if we failed to advocate for the services women need.

‘It cannot be morally right to compel a woman to physically take tablets in a clinic and to subject her to the anxiety that symptoms will start on the journey back when her doctor knows it is safe and indeed preferable for her to take these at home.

‘If the law as it stands cannot allow what is safe, right and proper, then it is not fit for purpose and must be changed to reflect modern medical practice. But if the law as it stands allows the secretary of state to approve a woman’s home as a “class of place” for abortion, then this is what he must do. We look forward to discussing with ministers and officials how quickly this can happen.’

Ann Furedi is chief executive of BPAS, the British Pregnancy Advisory Service.