In the action brought by the Society for the Protection of Unborn Children (SPUC), lawyers for the Society are contesting the decision taken by the UK Government last year to license sales of ECPs in pharmacies. Selling Pills this way, according to SPUC, breaches the terms of the 1861 Offences Against the Person Act. Section 58 of this Act criminalises an attempt to 'procure a miscarriage', stating:

Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with like intent, and whosoever, with intent to procure the miscarriage of any woman whether she be or be not with child…..shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment.

Under this Act, and offence is committed by the person who administers the 'poison' or uses the 'instrument', and the woman herself, whether the woman concerned is actually pregnant or not.

Currently this Act is considered irrelevant to the provision of ECPs (and all contraception), because they are not deemed to cause a miscarriage. It is considered that a miscarriage can only happen when an embryo is implanted in the womb, and ECP works to prevent this taken place. Thus a distinction is made with abortion, which is regulated by the 1861 Act. This Act underpins the regulation of abortion in Britain - abortion can be legally performed in Britain because the 1967 Abortion Act (as amended) creates a defence for doctors against the criminality of abortion. It deems it lawful for doctors to authorise an abortion, on the grounds set out in the Abortion Act.

According to SPUC, however, this distinction between abortion and contraception is misplaced. SPUC's QC, Richard Gordon, has told the High Court that the provision of ECP does breach the terms of the 1861 Act, arguing that at the time when the Act was passed, the understanding was that pregnancy began with fertilisation. Thus, contend SPUC, ECP can be considered prohibited under the 1861 statute, since, through preventing the implantation of the fertilised ovum in the lining of the womb, it causes a pregnancy to end.

SPUC's action is being opposed in the High Court by the Department of Health, which is expected to argue that taking ECP does not lead to miscarriage, because the modern understanding is that a pregnancy does not begin until the fertilised egg has implanted. Thus ECP should not be regulated in the same way as abortion.

It seems unlikely that SPUC will win this case. Medical opinion in general accepts the distinction between fertilisation and implantation. The notion that there is a difference has been given greater weight by the development of technologies such as IVF. In these technologies, fertilisation take place outside of the woman's body, and few would consider that a pregnancy had begun in the petri dish. Most would agree it begins when the fertilised egg implants in the women's uterus.

The court case is likely to be dominated by such discussion, drawing on medical understanding. Most of the first day of the hearing, on 12 February, was taken up with reviews of medical literature from the 19th century. According to the lawyer for SPUC, this literature demonstrated an understanding of the basic process of conception and implantation. 'Ultimately' he said, 'the resolution of the challenge lies in an analysis of the word miscarriage as used by parliament in 1961 and as used today'. It seems likely that the evidence given by the lawyers for the Department of Health will be able to indicate that medical knowledge has developed, and that there are good reasons for removing the regulation of ECP from the terms of the 1861 Act.

At a common sense level, SPUC's case appears bizarre. How could it be the case that anyone could suggest that women who use ECP should be charged with a criminal offence? In the discussion of the case so far, in the media and in on-line chat-rooms, the marginality of SPUCs approach, which implies that women who use ECP are at fault, and are 'taking a life', is very clear.

And it is easy to see why SPUCs line is rejected by most. Who could possibly think it makes sense? It seems that even SPUC find it hard to believe, since in their public comments, they are falling over themselves to find a way to present what they are doing as 'woman friendly', not a defence of the 'unborn'. SPUC's national director, John Smeaton, thus told the Today programme that the presentation of ECP as contraception was a 'cynical deception of women'. In his comment for BBC News online, he even compared his views to those of the feminist writer Germaine Greer, and suggested that SPUC has 'more trust in women than the Family Planning Association'. But no-one really believes that they are doing this for women's benefit.

Even if SPUC does not lose at the High Court, it seems inevitable that the government will ensure that ECP and contraception will continue to be made easily available. As Ann Furedi, director of communications for British Pregnancy Advisory Service told Today, 'In a civilised, modern society, the government would have to step in to take measure to allow woman to benefit from the modern science of contraception'. Given the government itself took the move of licensing ECP for pharmacy sale in the first place, they have an interest in defending this policy.

Yet would be unfortunate if the terms of this whole discussion were not considered further, and more thought given to the issues raised. Discussion of the issues this case throws up should not end once the practicalities of making sure women can get ECP easily are resolved. Rather, the case provides the opportunity to think seriously about how we should best understand, and regulate, methods of fertility control.

A useful starting point would be experience of women. For the woman who fears she may be pregnant and doesn't want to be, it of course makes no difference whether medical opinion believes that pregnancy begins at conception or implantation. While the ins and outs of this distinction will matter in the Court this week, from the point of view of what women need, this question is surely not the main concern.

A woman who is pregnant and doesn't want to be just wants to be able to end it. The provision of ECP 'over the counter' has been a great gain for women in this respect. Stories now abound of women's great relief at being able to get to chemist, not have to wait for appointment with a doctor or at a clinic, and get the pills without having to endure moralising words or disapproval from some health care professionals.

Experience tells us that women want and need to be able to regulate their fertility. To meet this need, the best solution would be a regulatory framework that recognises it and takes it seriously. From this perspective, the starting point must surely be the removal of the regulation of means of fertility control from the criminal law entirely. What is the point in having a law that deems it criminal offence to 'procure a miscarriage'? Who could possible gain from this kind of law?

It is likely that the Government will want to avoid debating this issue, and will prefer instead to restore the status quo, with the placement of contraception outside the criminal law, and abortion within it. Because to move beyond the practical issues raised by the SPUC case, and to think about the issue more widely, has implications well beyond ECP (as SPUC well know).

But it would be a pity if, because of the wish to make sure women can get ECP, the problem of a law that defines the removal of a fertilised egg that has implanted in the uterus as a criminal offence is not confronted. One positive outcome of this case is that it provides an opportunity open up a debate this issue.

We should begin to ask why, in 21st century, we still live in a society that refuses to take the step of regulating fertility control on the basis of what it really is - not an act that should be criminalized, but a measure taken by women who want to be in control of deciding when and in what circumstances they have children. In this sense, abortion should no more be a matter for the criminal law than ECP.

What women need and deserve is to live in a society that shows it takes them seriously enough to have laws that reflect their right to decide on a matter so fundamental to their lives. So let the debate, begin, not end, once SPUC's case has finished.

References

Boseley, Sarah. 'Bid to block sale of morning-after pill'. The Guardian, 13 February, 2002.

'Legal challenge to morning-after pill', BBC News on-line, 12 February, 2002.

'Head to head: Contraception challenge', BBC News on-line, 12 February, 2002.