The UK Court of Appeal has ruled that the temporary measures granted by the secretary of state which allow for abortions pills, mifepristone and misoprostol, to be sent to pregnant women by post are not unlawful.
The appellants sought judicial review of the temporary measures arguing, inter alia, that they were unlawful as that The Abortion Act 1967 (as amended) did not confer such a power on the secretary of state.
The Act stipulates that termination of a pregnancy will be exempt from criminal liability if it is done by a medical practitioner in an approved place up to 24 weeks after conception.
The secretary of state made the decision to allow for abortion pills to be sent via post to pregnant women on a temporary basis one week after the whole country was put on lockdown due the COVID-19 pandemic. An open letter, signed by a large number of specialists in the public sector, was sent to the secretary of state expressing a grave fear for pregnant women who were unable to access the abortion services that they needed.
The secretary of state stated that the risks faced be pregnant women seeking abortions were severe and thus outweighed potential risks of sending abortion pills to their homes. The secretary of state feared that women would try to perform unsafe and illegal abortions upon themselves, or run the risk of enduring much later and complicated termination procedures.
The appellants appealed directly to the Court of Appeal after the Divisional Court refused permission to seek judicial review.
It was the appellants’ submission that the temporary measures were inconsistent with Section 1(1) of the 1967 Act, as well as the decision in Royal College of Nursing which held that only a medical practitioner could perform an abortion.
The Court of Appeal disagreed stating that the decision in Royal College Nursing was not intended to be a fixed standard applied in every situation. The Court considered that context was vitally important: “Context must take account not only of developments in medical science and medical practice, but also of prevailing conditions in order to ensure that the purpose of the 1967 Act is met, so as to enable women to safely access regulated services and obtain legal terminations in safe surroundings.”
The Court said that the secretary of state can “react to changes in medical science” to allow terminations in other settings and that “is exactly what happened in 2020, a decision was made in the context of a public health emergency arising from the Covid-19 pandemic.” There was evidence from health professionals that vulnerable women were turning to online providers outside the regulated healthcare system, “thereby breaking the law and losing the safeguarding and support inherent in the process provided by regulated services”.
The Court continued that the “purpose of the 2020 approval was to address a specific and acute medical need, in the context of a public health emergency, so as to ensure the continuance of the protection of the health of women in the context of the 1967 Act.” The registered medical practitioner “remains in charge throughout the procedure, which has been altered to reflect the changing and challenging times” and said the changes were “time limited”.
The Court found that the Divisional Court had not erred in refusing to grant permission to seek judicial review of the secretary of state’s decision to grant a temporary approval during the COVID-19 pandemic of “the home of a pregnant woman” as a class of places for the taking of Mifepristone. The secretary of state had acted within the powers conferred by the Act.
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