Early medical abortions: High Court rules against a change in the law

The British Pregnancy Advisory Service (BPAS) has failed in its' bid to allow women to take some of their pills at home as part of their early medical abortion.

There will be many law students who will remember learning about the case of Royal College of Nursing v Department of Health & Social Security (1981) but how many of you thought you might encounter a case which may be remarkably similar to the principles which occupied the minds of those learned judeges all those years ago.

The case in 1981 was brought to the House of Lords by the Royal College of Nursing in an endeavour to protect nurses who had, due to medical advances, become involved in the practice of inducing abortions by the use of drugs as opposed to surgical means.  Sounds familiar?

By 1981 the use of nurses to carry out abortions had become standard practice, procedures in use by this time did not exist and were not thought of when the Abortion Act 1967 was passed.  The Act applies to England, Scotland and Wales and allows abortions in certain circumstances.  The Act only permitted abortions to be carried out by a 'registered medical practioner'

In 1981 the matter eventually reached the House of Lords and the case is often held as an example of an approach to statutory interpretation known as the mischief rule.  By the 1970's the advances in medical practices meant that terminations of pregnancy normally meant inducing early labour by the administration of drugs. It was with the administration of these drugs that nurses become involved.  The issue was whether the Act should be interpreted narrowly, so as only to permit doctors to carry out such procedures, or whether a more pragmatic approach recognising the practical benefits of allowing trained and skilled nurses to be involved in the later part of the procedure.  The similarities with the present High Court case are striking.

In the House of Lords a majority of the judges decided that in the Royal College case it was lawful for nurses to participate in the process as they were doing but the other two judges took the view that such practice was unlawful.

The majority based their decision on the mischief rule and in so doing pointed to the situation prior to the 1967 Act.  There were high numbers of illegal abortions and some of these may have involved young teenage girls. The judges acknowledged Parliament's concerns for the welfare and safety of young girls should they seek help from 'backstreet' abortionists.  This is what the mischief rule is all about - seeking out the wrong which existed prior to the Statute and identifying the remedy provided.  The majority of the judges were convinced that Parliament intended to provide a safe alternative in limited situations to guard against secret 'backstreet' abortions when young people were driven to risk their lives. 

Dissenting Lord Edmund-Davies argued strongly to the contrary and said 'My Lords, this is redrafting with a vengeance'.

Lord Wilberforce was equally unconvinced by the speeches by the majority and said 'The Act is not one for ‘purposive’ or ‘liberal’ or ‘equitable’ construction. This is a case where the courts must hold that anything beyond the legislature’s fairly expressed authority should be left for Parliament’s fresh consideration' and he resisted any attempt to redraft the 1967 Act.

We may need to wait for a more detailed account of the High Court's present ruling.  The effect of the High Court ruling is that the second dose of pills must be administered on clinical premises.  At present women must return to the clinic or hospital for the second dose, where the tablets are taken under supervision and then they usually return home.  Will there be an appeal?  The BPAS seem convinced about the strength of their case but is this a step too far? Or is it 'hair splitting' and artificial to regard the taking of the second set of pills at a clinic the only way of proceeding? There must be hundreds of cases when prescribed drugs with known side effects are prescribed, but no doctor or nurse is in sight yet alone present when patients take the drugs.


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