Christian Concern will take its challenge of the government’s DIY abortion policy to the Supreme Court after judges ruled that Matt Hancock’s approval of home abortions was lawful.
The Court of Appeal heard arguments in July that the government’s decision to allow women to have medical abortions at home during the UK lockdown, with only a phone or video consultation, went against the purpose of the Abortion Act, which was designed to prevent ‘backstreet abortions’ and to ensure that abortions take place in safe and hygienic conditions.
Andrea Williams, chief executive of Christian Concern commented: “The judges refused to hear evidence that would have prevented them from reaching their legal conclusions. The judgment reads like a tortuous attempt to make the Abortion Act say what the judges, service providers and the government want it to say, rather than to uphold its true meaning. We are determined to take this to the Supreme Court to correct this misguided and dangerous policy.”
Although the Court of Appeal refused permission to appeal, Christian Concern will instead seek permission to appeal from the Supreme Court. Read the grounds for appeal.
Judges refuse evidence of harm caused by policy
Early Medical Abortions take place by the administration of two pills. Taking the second pill, misoprostol, at home has been permitted since 2018. But the first pill, mifepristone, was always taken at a clinic or another approved medical setting.
On 30 March 2020, after a controversial double U-turn, Mr Hancock formally approved “the home of a pregnant woman” as a class of places where abortions could take place, meaning that for the first time, abortions would be allowed without any in-person visit or consultation. Pills would simply be sent by post to a mother after a telephone consultation.
At the Court of Appeal hearing, judges refused to consider evidence that demonstrates that entirely at-home abortions present an inherent greater risk to women. However, the judgment goes on to claim that there was no evidence before the court to show that taking the first pill at home was any more dangerous than the second.
The evidence included full details of an undercover investigation as well as leaked internal documentation from the NHS revealing maternal deaths, murder investigations and pregnant women experiencing serious medical complications due to the service.
It also demonstrated that the divisional court had been misled as to the practice of ultrasound scans to determine the gestational age. To date, the Marie Stopes UK website portrays these scans as a routine part of the assessment, along with blood tests, blood pressure checks, and tests for sexually-transmitted infections.
Abortion providers’ home abortion consultations take place entirely by telephone, leaving no opportunity for clinicians to perform even common-sense checks for gestational age – leading to the abuse of the system to procure illegal and dangerous late term abortions.
Government admitted danger of coercion
The evidence that was not taken into consideration by the Court of Appeal also demonstrates the dangers of coercion and abuse posed to women. Just a few days before authorising DIY abortions, the government reassured Parliament that it would not do so citing these precise dangers.
Health Minister Lord Bethell told the House of Lords on 25 March 2020: “We believe that it is an essential safeguard that a woman attends a clinic, to ensure that she has an opportunity to be seen alone and to ensure that there are no issues. Do we really want to support an amendment that could remove the only opportunity many women have, often at a most vulnerable stage, to speak confidentially and one-to-one with a doctor about their concerns on abortion and about what the alternatives might be? The bottom line is that, if there is an abusive relationship and no legal requirement for a doctor’s involvement, it is far more likely that a vulnerable woman could be pressured into having an abortion by an abusive partner.”
These concerns are echoed in the expert report of Dr Gregory Gardner, commissioned by Christian Concern’s lawyers for the case. Dr Gardner concluded that the decision to allow home abortions puts women at serious risk of harm to physical and mental health and increased the risk of coercion to have an abortion.
Mystery client investigation ignored and misrepresented
Paragraphs 6-8 of today’s judgment explained why the court refused to consider the evidence of a mystery client investigation commissioned by Christian Concern and conducted by Kevin Duffy, a former director of Marie Stopes International.
It selectively quotes paragraph 15 of the statement, that it contravened ‘ethical norms’ without considering the necessity for doing so, as explained in paragraph 12 of Duffy’s evidence:
“In a study published by the Oxford University Press in association with the London School of Hygiene and Tropical Medicine, King et al discuss the ethics of using a mystery client in healthcare settings. They conclude that “the deception of healthcare service providers can be ethically justified where (1) other options cannot answer the research questions; (2) risks to the mystery clients and service providers are minimal; and (3) the knowledge generated is of value to society. [KD1/21]”
The judgment works hard to label the investigation as deceitful and morally repugnant despite following standard procedures for mystery shopper investigations. It strangely implies that a control group would have improved the investigation before dismissing the evidence as unfair.
Appeal to Supreme Court
Andrea Williams, chief executive of Christian Concern, said: “Today’s ruling misconstrues the evidence and arguments presented to court, and has a strong smell of judicial activism, coming from two of the same judges that previously ruled to protect the abortion industry by allowing a ban on peaceful groups standing outside an abortion clinic.
“The judges wilfully ignored evidence that would have refuted its claims and seemed intent on bending the law to say what they want, rather than what it means.
“The evidence is clear that DIY abortions are not safe. Women have died. Others have suffered. The process has clearly been abused and used unlawfully.
“We warned from the beginning that allowing DIY abortions on a ‘temporary basis’ would quickly be turned into a permanent measure. Now the government has made this intention clear. We will resist this proposal in the consultation with all of the evidence that we have collected which shows that DIY abortions are harmful and dangerous for women.
“Abortion pills through the post is a system that needs to be stopped immediately and a thorough investigation needs to occur around the legality and practices of the two major abortion providers in the UK.
“We are determined to continue to fight for justice at the Supreme Court.”
Find out more about DIY abortions