At a hearing on 28 January 2011, the British Pregnancy Advisory Service (BPAS) applied to the High Court for a declaration which challenged the accepted interpretation of the Abortion Act 1967. Opposing the application was the Secretary of State for Health, joined by a last minute intervener, the Society for the Protection of Unborn Children. The application was heard in the Administrative Court before Mr Justice Supperstone.

Section 1(3) of the 1967 Act provides that “any treatment for the termination of pregnancy” must be carried out in a hospital or a place approved by the Secretary of State. The purpose of BPAS’s application was to establish that it would be lawful under the 1967 Act for the drug used in the second stage of Early Medical Abortion to be self-administered by the woman at home. This could be achieved through a declaration that the treatment for the termination of pregnancy was the prescription of the abortifacient drug, and not administration of that drug. Although the application was unsuccessful, the hearing brought to light a tangled web of inconsistencies within the 1967 Act and revealed the gaping discrepancies between the law surrounding abortion and abortion in practice.

Paradox: Offences Against the Person Act 1861

Abortion is unlawful under sections 58 and 59 of the Offences Against the Person Act (OAPA) 1861. Section 1(1) of the 1967 Act sets out the conditions under which a person shall not be guilty of an offence under the OAPA when “a pregnancy is terminated by a registered medical practitioner”. The use of the word “terminated” in section 1(1) suggests that the abortion must be complete in order for this statutory defence to operate; however, there is a fundamental problem with this interpretation.

The OAPA makes it an offence simply to take actions intended to result in an abortion; the abortion does not have to be successful for a doctor to be found guilty under the Act. Sometimes, however, an abortion will fail (a common risk of abortion is continuing pregnancy) or the woman might change her mind. If section 1(1) were to be interpreted literally, this would mean that every time a doctor carried out an unsuccessful abortion, he would be guilty of a criminal offence under the OAPA. In practice, this absurdity is rightly ignored, but on a technical legal reading it is clear that section 1(1) does not in fact provide the defence to the OAPA that Parliament intended.

Inconsistency: sections 1(1) and 1(3)

In contrast to the finality of the wording in section 1(1) (quoted above), section 1(3) uses the purposive phrase “any treatment for the termination of pregnancy”. Lord Roskill concluded in RCN v DHSS [1981] AC 800 that the phrases must be read as “virtually synonymous” in order to “avoid a number of anomalies as, for example, where there is no pregnancy”. Nevertheless, there was much debate between the parties in the High Court hearing as to whether Parliament had intended the two provisions to have conceptually different meanings.

Lacuna: section 4

Section 4 of the 1967 Act provides that “no person shall be under any duty…to participate in any treatment authorised by this Act to which he has a conscientious objection”. It was found in Janaway v Salford AHA [1989] 1 AC 537 that the phrase “participate in any treatment” means taking part in treatment administered in a hospital or other approved place. Thus a strict interpretation of this provision creates a lacuna, such that, for example, a GP who is asked by a patient to refer her for abortion cannot refuse to do so, as he is not taking part in treatment. In practice, GMC guidance provides that a doctor in this position can object on the basis of conscientious objection; however, he is not technically afforded this protection under the 1967 Act. (There is similar NMC guidance for nurses facing a similar ethical dilemma.)

Lethargy: section 1(3A)

Section 1(3A) was introduced into the 1967 Act by the Human Fertilisation and Embryology Act 1990. It gives the Secretary of State the power to “approve a class of places” in which treatment for the termination of pregnancy can be carried out. Mr Justice Supperstone confirmed in his judgment that, by virtue of this section, the Secretary of State “has the power to approve a wider range of place, including potentially the home”. Were he to use this power, it would achieve the objective that BPAS was seeking in its application; however, in the decade since this provision came into force, the Secretary of State has not used it once.

It is clear that the Abortion Act 1967 is in need of a drastic overhaul. In the words of BPAS’s chief executive, Ann Furedi, the law as it stands “is not fit for purpose and must be changed to reflect modern medical practice”.