The Court of Appeal has announced it has reversed the decision of the High Court to reject Christian Concern’s legal challenge against the legalisation of ‘DIY’ abortions.
This means that the Court of Appeal will now hold a public hearing to decide whether Health Secretary Matt Hancock’s decision to introduce at-home abortions should be quashed. Government policy hasn’t been overturned yet, but this is a huge step forward and a significant opportunity to reverse the government’s decision.
‘Exceeded his powers’
In the order published, Lord Justice Lewison ruled it is “arguable” that the Health Secretary Matt Hancock exceeded his powers under the 1967 Abortion Act when he designated “a pregnant woman’s home” as a permissible place for abortion. Lord Justice Lewison has concluded that Christian Concern’s argument “has a real prospect of success”, and the Court of Appeal will now hold a public hearing to decide whether Mr Hancock’s decision should be invalidated.
DIY abortions take place by self-administration of a Mifepristone pill, which kills the foetus inside the mother’s womb. On 30 March 2020, Mr Hancock formally approved “the home of a pregnant woman” as a place where Mifepristone can be administered, after being prescribed during a telephone consultation and sent by post. The measure was the most significant change in UK abortion law since the adoption of the Abortion Act in 1967.
No power to authorise at-home abortion
Christian Concern’s legal challenge was initially rejected by the High Court. However, the Court of Appeal has now reversed that decision and granted permission for judicial review on two grounds:
First, Christian Concern’s lawyers will argue that Mr Hancock had no power under the 1967 Abortion Act to authorise home abortions. Only Parliament could change the law, which is that abortions may only take place in NHS hospitals and approved clinics.
‘DIY’ abortion ‘frustrates the purpose of the Abortion Act’
Second, permitting DIY abortions at home frustrates the purpose of the Abortion Act, which is to prevent ‘backstreet abortions’ and ensure that abortions take place in safe and hygienic conditions.
The challenge has the backing of a former government minister, the Rt Hon. Ann Widdecombe, who has provided a statement in support of it. When the Abortion Act was amended in 1990, Miss Widdecombe – a backbench MP at that time – suggested in Parliament that the amendment was “a paving measure – even if it is not intended as such – for self-administered home abortion”. In response, the then Health Secretary, the Rt Hon. Ken Clarke, gave categorical assurances that she was mistaken and the “pill would be administered only in closely regulated circumstances under the supervision of a registered medical practitioner”.
Just a few days before authorising DIY abortions, the government renewed its assurances to Parliament that it would not do so and opposed an amendment to the 2020 Coronavirus Act which would have permitted self-administration of the pill at home.
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 have an abortion by an abusive partner.”
These concerns are echoed in the expert report of Dr Gregory Gardner, commissioned by the Christian Concern’s lawyers for this case. Dr Gardner has concluded that the decision to allow home abortions puts women at serious risk of harm to physical and mental heath and increased the risk of coercion to have an abortion.
Former director of Marie Stopes International, Kevin Duffy, has also submitted an expert report in support of Christian Concern’s claim. Mr Duffy’s report explains that DIY abortions are not nearly as safe as the DHSC civil servants told Mr Hancock. He described the advice given to Mr Hancock by the civil servants as “misleading”.
Facilitating illegal abortion
Following Mr Hancock’s legalisation of home abortions on 30 March, their practical operations have been far from smooth. On 22 May, BPAS announced that it was investigating at least 9 cases where the abortifacients had been prescribed beyond the 10-week limit mandated by the regulation, with at least one of those incidences at 28 weeks.
Government liberalising abortion
On 11 June, the Department for Health released abortion statistics for 2019 showing that 207,384 abortions had taken place that year – the highest number recorded.
Andrea Williams commented: “Abortion numbers are at record highs. The government is making every effort to liberalise abortion to the point of decriminalisation. The Westminster government has forced abortion onto Northern Ireland. It is equally clear that the Department’s regulations on DIY abortions, being brought under the guise of being necessary due to coronavirus, were never meant to be temporary. I cannot overstate the importance of this appeal.
“We now have a genuine opportunity to expose the lies and dubious practices of the abortion industry. In doing so, we hope that some lives will be saved, and mother’s protected. What is truly shocking is the unfettered and inappropriate level of access to government that the abortion lobby has.”
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