SPUC and the morning-after pill saga
By Barbara Hewson
June 28, 2002

This article was first published in the New Law Journal, Vol. 152 No 7038 (Friday June 28, 2002)

A recent case could pave the way to liberalising UK abortion law, thinks Barbara Hewson

Munby J's decision in R (Smeaton on behalf of SPUC) v Secretary of State for Health & Schering Health Care Ltd (18 April 2002) ("SPUC") is a rigorous dissection of an argument, which opponents of abortion have mooted for decades: are certain types of contraception really abortifacients? If SPUC had won, not only would the 'morning-after pill' be subject to the Abortion Act 1967, but so would all hormonal contraceptives and IUDs. That would leave men and women with a choice of either barrier methods, or abstinence. The judge refused to draw such a bizarre conclusion.

What was SPUC doing?

The morning-after pill has been authorised in the UK as a prescription-only medicine since 1984. SPUC brought a judicial review of a statutory instrument, The Prescription Only Medicines (Human Use) Amendment (No 3) Order 2000/ 3231. This came into force on 1 January 2001, following widespread consultation. The medical evidence was that the morning-after pill was an exceptionally safe product. The Government's aim was to enable pharmacists to supply emergency contraception ('the morning-after pill') over the counter, without a prescription from a doctor. SPUC's claim went much further than a simple challenge to the legality of this particular statutory instrument. It argued that the prescription, supply and use of the morning-after pill were all illegal. Thus, all women who take the morning-after pill are potential criminals, liable to a maximum sentence of life imprisonment if convicted! SPUC did not accept the social argument that preventing an unwanted pregnancy was preferable to having an abortion.

The legal background

SPUC's claim was based on the Offences Against the Person Act 1861, which prohibits abortion. That statute does not use the term "abortion", but "miscarriage". Section 58 provides: "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 the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony". Section 59 provides: "Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or not be with child, shall be guilty of a misdemeanour." [italics added]

Section 1(1) Abortion Act 1967 makes abortions lawful where:

a) The pregnancy has not exceeded its 24th week and the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family;
b) The termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman;
c) The continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated;
d) There is a substantial risk that, if the child were born, it would suffer from such mental or physical abnormalities as to be seriously handicapped.

Most abortions are carried out under section 1(1)(a). The consensus of obstetric opinion is that carrying a pregnancy to term is more injurious to health than a termination: Royal College of Obstetricians and Gynaecologists' Evidence-based Guideline No. 7, The Care of Women Requesting Induced Abortion, March 2000, p.16. Save in emergency cases, two practitioners must certify that a termination is necessary. Private abortion clinics must be licensed: section 1(3). All abortions must be reported to the Department of Health: section 2. Abortions not fulfilling the statutory criteria remain serious offences.

The medical context

SPUC's argument was simple. Pregnancy begins at conception i.e. when an egg is fertilised by sperm. The morning-after pill prevents a fertilized ovum from later implanting in the wall of a woman's womb. Therefore, it causes a miscarriage i.e. an abortion. According to SPUC, "miscarriage" meant preventing implantation, when the 1861 Act was passed. Therefore, for emergency contraception to be lawfully administered, the Abortion Act must be complied with. The respondents argued that for a miscarriage to occur, the fertilized egg had to be implanted (or "carried') in the womb first. A miscarriage occurs when the immature products of conception are expelled from the womb. The judge was shown evidence on the processes of pregnancy and mechanics of contraceptive technology, nineteenth century medical texts, and the history of contraception. He did not accept that, even in 1861, SPUC's interpretation of "miscarriage" was correct. He noted that some leading works of the time strongly supported the idea that miscarriage becomes possible only after implantation.

Medical experts agreed that once a fertilized egg had implanted in a woman's womb, the morning-after pill could not dislodge it. The evidence focused on what happened, prior to that point. It was suggested that some 4.5 million women a year would be potential criminals, if SPUC's argument were correct. Indeed, if emergency contraception were not readily available, this could lead to a significant increase in the number of abortions. Another curious consequence of SPUC's argument was that a woman taking emergency contraception provided by a chemist ran the risk of committing a serious criminal offence well before she could even discover if she was pregnant. Pregnancy testing is only effective after implantation.

Munby J's conclusions

The judge rejected SPUC's arguments. He accepted the medical experts' view that a miscarriage means the termination of an established pregnancy and that there can be no established pregnancy prior to implantation. Whatever the word "miscarriage" may have been understood to mean in 1861 was irrelevant: he was only concerned with what it meant today. He cited with approval an unreported criminal case, R v Dhingra (1991). There a doctor was charged with unlawfully fitting an IUD. Wright J found that there was no case to answer, because the coil had been fitted before implantation.

Finally, the judge invoked Article 8 - the right to be free from state interference in private decision-making. Munby J made a passionate plea for individual freedom:

There would in my judgment be something … grievously wrong with our system - by which I mean not just our legal system but the entire system by which our polity is governed - if a judge in 2002 were to be compelled by a statute 141 years old to hold that what thousands, hundreds of thousands, indeed millions, of ordinary honest, decent, law abiding citizens have been doing day in day out for so many years is and always has been criminal. …

I cannot see that it is any part of the responsibilities of public authorities - let alone of the criminal law - to be telling adult people whether they can or cannot use contraceptive devices of the kind which I have been considering.

It is, as it seems to me, for individual men and woman, acting in what they believe to be good conscience, applying those standards which they think appropriate, and in consultation with appropriate professional (and, if they wish, spiritual) advisers, to decide whether or not to use IUDs, the pill, the mini-pill and the morning-after pill. It is no business of government, judges or the law.

Government's responsibility is to ensure the medical and pharmaceutical safety of products offered in the market place and the appropriate provision of suitable guidance and advice. Beyond that, as it seems to me, in this as in other areas of medical ethics, respect for the personal autonomy which our law has now come to recognise demands that the choice be left to the individual.

Decisions on such intensely private and personal matters as whether or not to use contraceptives, or particular types of contraceptives, are surely matters which ought to be left to the free choice of the individual. And, whilst acknowledging that I have had no argument on the point, I cannot help thinking that personal choice in matters of contraception is part of that "respect for private and family life" protected by Article 8 of the Convention

Comment

This was an own goal for SPUC, in more ways than one. It highlights the surprising fact that, in 2002, women's sex lives are still regulated by reference to Victorian criminal law. If gay men can now enjoy sex, unencumbered by fear of prosecution thanks to Article 8, why should the consequences of heterosexual sex put women into a criminal legal framework? Munby J's ruling sets the scene for a challenge to the compatibility of UK abortion laws with the Human Rights Act 1998, invoking Article 8, and a Roe v Wade concept of privacy. The United States Supreme Court decided in Roe v Wade 410 US 113 (1973), that a woman's constitutional right to privacy encompasses her right to choose whether to continue a pregnancy. At the ECHR level, there has been a more "hands off" approach to member states' abortion regimes. Thus, most cases involving challenges to national abortion laws were rejected as inadmissible: Brüggeman & Scheuten v FRG No. 6959/75, 10 DR (1978), Paton v UK (1980) 3 EHRR 408, H v Norway (1992) 73 DR 155. One successful challenge involved draconian restrictions on abortion information in Ireland, which the European Court found violated Article 10 (right to information): Open Door Counselling v Ireland (1993) 15 EHRR 244.

But under the Human Rights Act 1998, UK courts are not bound to follow Strasbourg jurisprudence. They might be more interventionist. A woman wanting an abortion, or her doctor, could claim that the machinery of the 1967 Act is incompatible with the Human Rights Act 1998: the legal hoops it makes women and doctors jump through, to enable lawful abortion, are unnecessary in a democratic society. Arguments might include: why should a woman have to supplicate two doctors, to get a lawful abortion? Why should a doctor decide whether she qualifies for one, and not the woman? Doctors don't decide if people can have sex; they should not have to decide if people become parents. Applying Munby J's logic, the state should only interfere in this private realm of decision-making, to a limited and proportionate extent. State regulation of abortion, as in other aspects of healthcare, could be limited to ensuring that properly qualified personnel perform abortions safely. Time will show whether anyone will bring such a challenge to the 1967 Act.

Barbara Hewson practises in Littman Chambers. bhewson@littmanchambers.com