Court of Appeal will hear challenge against ‘DIY’ home abortions

The Court of Appeal has granted permission to hear a challenge against the UK Government’s decision to introduce ‘DIY’ home abortions.

The legal challenge being brought forward by the Christian Legal Centre was initially rejected by the High Court back in May.

However, the Court of Appeal has now granted permission for judicial review.

Significant problems

Since ‘DIY’ home abortions were introduced on 30 March, a number of significant problems have arisen.

In May, it was revealed UK police were investigating the death of an unborn baby after its mother took ‘DIY’ home abortion pills while 28 weeks pregnant.

In addition, abortion provider BPAS announced that it was investigating a further eight cases of women taking ‘DIY’ home abortion pills beyond the 10-week limit, raising questions over what checks are being conducted to ensure the law isn’t being broken and dangerous later-term abortions aren’t happening. 

A number of women have also come forward to share the serious problems they’ve experienced after taking ‘DIY’ home abortion pills.

One woman said she went through “hell” and thought she was going to die after taking the dangerous pills.

Another woman said the pain and physical process was “horrible” and “a lot worse than expected”.

Government’s dangerous U-turn allowing ‘DIY’ home abortions

Despite assurances from the Government that there would be “no change” to abortion regulations and that in-person consultations remain “an essential safeguard” for women, the Government brought in a policy allowing ‘DIY’ home abortions shortly after lockdown began.

The very substantial change was made without any public consultation, parliamentary scrutiny or debate.

Prior to the change in regulations, abortions could only take place in hospitals or abortion clinics approved by the Secretary of State.

Under the new ‘temporary’ policy, doctors are able to prescribe mifepristone and misoprostol over the phone or video platforms such as Facetime or Skype, meaning women will be left to pass their unborn child at home without direct medical supervision.

The Government had initially stated its intention to allow ‘DIY’ abortions on 23 March, but backtracked later that day claiming the announcement had been “published in error.”

The government web page that had published the changes instead had the following message for visitors: “The information on this page has been removed because it was published in error. This was published in error. There will be no changes to abortion regulations.”

Just one day later, the Health Secretary Matt Hancock reassured the House of Commons that there would be no change to any abortion laws in response to COVID-19.

Additionally, Health Minister Lord Bethell made it very clear that there were significant safety and safeguarding issues for women and young girls with the proposal. 

As the Coronavirus Bill was brought to the House of Lords on Wednesday 25 March, Lord Bethell rejected strongly, on behalf of the Government, the proposed changes to abortion law, stating:

“….we do not agree that women should be able to take both treatments for medical abortion at home. 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.”

He also made it clear that it would be inappropriate to make this change without parliamentary scrutiny: “It is not right to rush through this type of change in a sensitive area such as abortion without adequate parliamentary scrutiny.”

Despite these clear statements, the Government went against its own warnings and, in an incredible double U-turn, announced on 30 March it would allow ‘DIY’ home abortions.

Through their legal challenge, the Christian Legal Centre wants the dangerous legislation overturned immediately and full disclosure of the Government’s decision-making process and rationale.

Serious risk of harm and coercion

Their case is being backed by former Government Minister Ann Widdecombe and Dr Gregory Gardner.

In an expert witness statement for the High Court challenge, Dr Gregory Gardner, a longstanding GP and honorary clinical lecturer at the University of Birmingham, highlights the risk of serious injury and harm to women self-administering abortion pills.

“The introduction of home abortions as proposed (notwithstanding the presence of a Covid-19 pandemic) is a policy that is more likely than not to depart from the essential tenets of duty of care through proper clinical assessment, thereby raising the risk of serious injury and harm being done to women self-administering Mifepristone and Misoprostol at home,” Dr Gardner wrote.

In addition to citing risks of infection, haemorrhage, psychological trauma, and risk of future preterm birth, Dr Gardner explains how the Government’s decision could result in more women being coerced into unwanted abortions.

He said: “It will be difficult if not impossible to verify by phone or video whether a woman is undergoing any kind of duress to have an abortion. There does not seem to have been any consideration given to this in the proposed change in policy. There will be women who need delicate counselling to discover coercion or other forms of abuse.”

Former Government minister Ann Widdecombe has also written a statement to the high court in support of the legal challenge.

In her statement, the former Shadow Health Secretary reveals the history of the legislation which has enabled health services in England, Scotland & Wales to roll out ‘DIY’ abortions.

During a parliamentary debate in 1990, Miss Widdecombe raised concerns that an amendment to abortion legislation, allowing the Health Secretary to designate “a class of places” as suitable for abortions would inadvertently pave the way for ‘DIY’ home abortions.

However, the author of the amendment, Robert Key MP, dismissed Miss Widdecombe’s concerns and accused the then Conservative MP of speaking from “the whip issued by the pro-life group” and misleading Parliament.

The Health Secretary at the time, Kenneth Clarke, then assured MPs that the legislation was not intended to legalise home abortions and that abortions would be “administered only in closely regulated circumstances under the supervision of a registered medical practitioner”.30 years later, Ann Widdecombe’s previously dismissed concerns have become a reality.When the legal challenge was launched, Ann Widdecombe said: “Parliament was told one thing. Government is doing another and that says it all.”

Abortion already underway as the Court of Appeal overturned forced abortion ruling

Documents from the Court of Appeal which ultimately stopped a state enforced abortion from taking place last month, revealed that the first stage of a three day abortion procedure was being carried out during the Court hearing.

At the end of June, Justice Nathalie Lieven ruled that forcing a woman with a moderate learning disability to have an abortion against her will was in her “best interests”. In a last minute hearing the next working day (Monday 24/06), three judges in the Court of Appeal overruled this decision, forbidding doctors from performing an abortion on this woman.

The full ruling of the Court of Appeal has now been released and it reveals that the woman was already undergoing a “pre-operative assessment” for the abortion, which was in fact being carried out during the hearing at the Court of Appeal.

The “pre-operative assessment” formed what would have been part of a three day invasive process which would ultimately have ended the life of her baby.

The ruling also reveals that the judges overturned Justice Lieven’s decision because she gave insufficient consideration to the wishes and feelings of the pregnant woman, as well as the views  of the woman’s primary carers – including her own mother – who believed it was in her best interests not to have an abortion.

The Court of Appeal judge, Lady Justice King said Justice Lieven “made no mention of AB’s [the woman’s] wishes and feelings or of the views of CD [the woman’s mother], the social worker or the Official Solicitor. This was, in my opinion a significant omission.”

The Court of Appeal also brought to light the “well established” principle that “the court does not take into account the interests of the foetus but only those of the mother”.

Clare McCarthy from Right To Life said:

“Between the original ruling and the decision from the Court of Appeal, the life of the 22-week-old baby hung in the balance and was literally hours away from being aborted. In fact, the pre-operative assessment for the abortion was already underway. If this last-minute hearing did not take place when it did, this baby would not be alive.

“As the ruling from the Court of Appeal made clear, the right to life of the baby held no weight in court, as the “the court does not take into account the interests of the foetus but only those of the mother”. This is despite the fact that the baby, this late in gestation, would in some cases have been able to survive outside of the womb.

“Although it is a major relief that the Court of Appeal came to this decision, and that the forced abortion did not take place, it is a chilling case that demonstrates the power the court holds over life and death.

Forced abortion: is it really in anyone’s “best interests”?

Last week the Court of Appeal unanimously overturned a ruling forcing an abortion on a 24-year-old, mentally disabled woman (hereafter, AB), by Justice Lieven in the Court of Protection. The original judgment was released this week and it is worth examining to understand how we almost arrived at that horrific point where the state can force one of its own citizens to have an abortion. There is a lot to say but I would like to consider just two points of interest: the woman’s disability and the application of the “best interest” test. 

Firstly, in considering the “best interests” of AB, Justice Lieven comments that she has “to focus on AB as an individual and her best interests, not societal views in termination [nor] the rights of disabled people in general.” Yet disability cannot simply be disregarded in favour of focusing on an AB as ‘an individual’; her disability is a fundamental part of who she is and ironically the crux of the judgment rests on this.  There are specific human rights obligations which arise here.

In 2018, the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of Persons with Disabilities (CRPD) released a joint statement mapping out a human rights based approach to the sexual and reproductive health needs of women with disabilities. Particular emphasis is rightly given to the obligation of a state to ensure that women with disabilities are protected against forced abortion.  States should also ensure that women have access to evidence-based and unbiased information.

While the Justice believes AB cannot fully understand the decision at hand here, questions should be asked about the nature of information given to her. The Barrister leading the NHS legal team in this case, told the Court of Appeal that AB “…was told she would go to sleep. She would have an operation and when she woke up the baby would no longer be in her tummy. But she would get a new doll.” This is both patronising and deliberately misleading information. The Justice herself said that “as the pregnancy has developed AB has more understanding that she is pregnant, and that means she has a baby inside her, and that it will be born.”

CEDAW and CRPD are clear that women should not be forced to undergo an abortion against their will, or without their informed consent, though I appreciate that even with unbiased and evidence based information, by virtue of her disability,  AB still might not be able to give informed consent.

All parties were unanimous in their agreement that AB did not have capacity and therefore the judgment focused on the application of the ‘best interests test’ to determine the best course of action.  The purpose of this test, as summarised in Aintree University Hospital v [James], is to focus on the individual and not just medical conduct.  A ‘best interest test’ must contain “a strong element of substituted judgment” taking into account: past and present wishes/feelings of the person, other factors he would consider, beliefs and values likely to influence their decision if they had capacity, and full consultation with carers and other interested parties. Justice Lieven feels weight cannot be given to AB’s feelings/wishes as she considers them unclear and subject to change. 

However, she is clear in her judgment that AB “is happy that she is pregnant and likes the idea of having a baby. I think that it shows if she was making the choice, at this moment she would not want a termination.”  

Whilst it is felt she cannot make ‘the choice’, the most surprising element of this judgment for me is that no weight is given to the opinions of carers and interested parties.  Alongside AB, her mother (a midwife by profession), her social worker and the official solicitor strongly felt the continuation of her pregnancy was in her best interests. Although the local authority adopted a neutral stance, they still laid out their plans for care of the child should AB continue with her pregnancy.

If the purpose of the best interests’ test is to focus on the individual and not solely medical conduct, why was only medical opinion given weight in this case? And why was there so little apparent focus on “the individual”? The Supreme Court is clear that “decision-makers must look at…welfare in the widest sense, not just medical but social and psychological…and they must consult with others who are looking after [them]…in particular for their view of what [their] attitude would be.”

If Justice Lieven feels harm is inevitable whichever path is taken here, surely the opinion of those who have worked closely and extensively with AB over a number of years are therefore best positioned to advocate for her and make this judgment.  Consideration, yet no weight, was given to their views and in my opinion, this was a dangerously narrow and partial application of the ‘best interests’ test.

It is difficult to fully analyse just what has gone on here, the details are still incomplete and the full picture will not be clear until the Court of Appeal judgment is released. However, it is a judgment riddled with contradictions and with little regard for the rights of disabled people. The Justice herself recognises how immensely intrusive a forced abortion would be and the draconian nature of a state ordered termination on a non-compliant woman, yet proceeds in this manner anyway, preferring to rely on tentative psychological speculation as opposed to the voices of those who, professionally and personally, are best placed to make this decision.

Thankfully overturned, this judgment feeds into wider debates about the role and reach of the State in such medical decisions and questions have to be asked as to what weight, if any, Courts are giving to those closest to the person in question. We must continue to be vigilant as this area of law develops, as forced abortion might just be the tip of the iceberg.

All opinions expressed here are the author’s own and do not necessarily represent the views of Right To Life UK.

All opinions expressed here are the author’s own and do not necessarily represent the views of Right To Life UK.

Disability rights group condemns forced abortion ruling as ‘wholly wrong’

Disability Rights UK has condemned Justice Lieven’s ruling attempting to force an abortion on a woman with a learning disability, calling the decision “wholly wrong”.

The disability charity condemned the decision saying it was “in contravention of the UN Convention on the rights of People with Disabilities.”

“In our view, the issue here is to ensure that the woman concerned receives sufficient support to help her with her parenting role.”

This denunciation came during international outcry after an NHS Trust successfully brought a court case against a patient with a learning disability, resulting in the Court of Protection ruling that this woman must have an abortion against her will.

The woman is said to have a “moderately severe” learning disability, leaving her with the mental age of a six to nine year old.

Three Court of Appeal judges since ruled that doctors must not perform an abortion on this woman. The judges said that the circumstances of this case were unique and that their reasons for overturning this decision would be released at a later date.

Clare McCarthy from Right To Life UK said: “Disability Rights UK are absolutely correct to condemn this ruling.”

“This decision made by the judge speaks volumes about the attitudes and ignorance of not only the judge but also the NHS Trust both to people with learning disabilities and children in general.”

“As Disability Rights UK suggest, the response  to this woman’s situation should be support, not abortion.”