British Abortion Law: Speaking from the Past to Govern the Future
| DOI | http://doi.org/10.1111/1468-2230.12180 |
| Published date | 01 March 2016 |
| Author | Sally Sheldon |
| Date | 01 March 2016 |
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British Abortion Law: Speaking from the Past
to Govern the Future
Sally Sheldon∗
This paper analyses the poor alignment of the aging statutory framework and modern under-
standings of medical best practice in the context of abortion services. With a particular focus
on medical abortion, it assesses the significant challenges that the gulf between the two poses
for clinicians, service providers, regulators and the courts. Law is said to be at its most effective
where there is a shared regulatory community that accepts and endorses the values that un-
derpin it. It is suggested that the example of abortion law provides a marked example of what
happens when legal norms once justified by broadly shared moral understandings, concerns for
patient safety and requirements of best practice are now either unsupported by or, indeed, sit
in opposition to such concerns.
Written norms have two central features which make them particularly problematic
regulatory instruments: their temporal aspect - they speak from the past or present
but purport to govern the future - and their linguistic aspect: they are linguistic
structures which require interpretation. How they will ‘work’ depends on the
interpretation they receive.1
INTRODUCTION
When the abortion pill, mifepristone, then commonly known as RU486, was
first licensed for use in the late 1980s, it was heralded as the ‘pill that changes
everything’,2with predictions that it could ‘end the abortion wars’.3The
grounds for excitement were clear. A method permitting early abortions to be
carried out safely and effectively using pills might transform abortion into
a procedure which required only the most minimal of skills and facilities to
administer, raising possibilities for abortions to take place with little supervision
in a wider variety of healthcare settings and, perhaps, even in the woman’s
own home. This, it was predicted to the delight of some commentators and
∗Professor of Law, Kent Law School. I gratefully acknowledge the support of the AHRC for this
research (‘How Can a State ControlSwallowing?’: Medical Abortion and the Law, AH/L006537/1).
I am also grateful to my Advisory Group (Dr Jennie Bristow, Professor Joanna Erdman, Dr Ruth
Fletcher, and Dr Patricia A. Lohr) for their invaluable guidance; and to Dr Sheelagh McGuinness
and two reviewers for the Modern Law Review for their insightful and constructive feedback on an
earlier draft.
1 J. Black, ‘Regulatory Conversations’ (2002) 29 JLS 163, 172.
2Time Magazine cover 14 June 1993.
3L.Lader,RU486: the Pill that Could End the Abortion Wars and Why American Women Don’t Have
it (Reading, Mass: Addison-Wesley, 1992).
C2016 The Author. The Modern Law Review C2016 The Modern Law Review Limited. (2016) 79(2) MLR 283–316
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
British Abortion Law
the horror of others, might lead to a profound shift both in political debates
regarding abortion and in the development and enforcement of law. One US
lawyer went as far as to suggest that the ‘seemingly intractable’ abortion debate
was approaching an ‘unceremonious solution’, as the ‘energy presently devoted
to influencing political and legal institutions ultimately will subside in the face
of [this] new technological reality’.4
With the benefit of twenty-five year s of hindsight, of course, this prediction
looks hopelessly far-fetched. While medical abortion (a term used to descr ibe
any termination of pregnancy provoked using dr ugs) has become widely avail-
able across much of the world, it is undeniable that significant energy remains
devoted to fighting the ‘abortion wars’. Indeed, pitched battles in the USA are
currently focused precisely on issues relating to access to medical abortion.5
At the time of writing, five US states have introduced legislation to require
that medical abortion be provided according to an outdated protocol that is
known to have higher rates of side effects and to be less acceptable to women.6
Two require that women must be counselled that it is possible to ‘reverse’ the
abortion if she changes her mind after taking mifepristone (the first dr ug used
in a medical abortion), despite the lack of clinical evidence to support the
effectiveness or safety of such a ‘treatment’.7
In the UK, opposition to medical abortion has been far more muted. The UK
was one of the first countries to license mifepristone and, since then, a gradual
revolution in abortion care has meant that today over half of reported induced
abortions are provoked using dr ugs.8Used in combination with a second
drug, misoprostol, mifepristone has been shown to be safe, very effective,
highly acceptable to women, and requiring little by way of specialist skills
4 L. A. Cole, ‘The End of the Abortion Debate’ (1989) 138 Uni of Penn Law Rev 217.
5 US states enacted 51 new abortion restrictions in the fir st 6 months of 2015, with medical
abortion a major focus of this activity: Guttmacher Institute, Laws Affecting Reproductive Health
and Rights: State Trends at Midyear, 2015 (1 July 2015) at http://www.guttmacher.org/media/
inthenews/2015/07/01/index.html; Guttmacher Institute, State Policies in Brief as of July 1,
2015: Medication Abortion at http://www.guttmacher.org/statecenter/spibs/spib_MA.pdf (each
last accessed 17 October 2015).
6 While doctors often prescribe ‘off label’ where there is a solid medical evidence base to suggest
that this is appropriate, these states require physicians to prescribe abortion drugs according to
the Food and Drug Administration (FDA) label for mifepristone that was approved in 2000.
This ignores the fact that newer regimens are known to be more effective at higher gestations,
cause fewer side-effects, and require less medication and fewer visits to the provider, making
them more cost-effective, ibid.
7 The law in one of the states concerned, Arizona, is currently subject to legal challenge and is not
being enforced, see n 5 above. A systematic review of the medical evidence in support of such
advice found just one publication, a case series of only women in whom ‘abortion reversal’ had
been attempted. Four of the six women continued their pregnancy after the ‘treatment’ (which
involvesthe administration of a large dose of hor mones), a continuingpregnancy rate compatible
with that seen in other studies where a woman changes her mind about proceeding with the
termination after taking mifepristone and receives no further treatment. See D. Grossman, K.
White, L. Harris, M. Reeves, P. D. Blumenthal, B. Winikoff, and D. A. Grimes, ‘Continuing
Pregnancy after Mifepristone and “Reversal” of First-Trimester Medical Abortion: a Systematic
Review’ (2015) 92(3) Contraception 206.
8 Department of Health, Abortion Statistics, England and Wales: 2014 (June 2015); ISD Scotland,
Abortion Statistics. Year ending 31 December 2014 (May 2015). See, generally, S. Sheldon, Beyond
Control: Medical Power and Abortion Law (London: Pluto, 1997) ch 7 on the licensing process.
284 C2016 The Author. The Modern Law Review C2016 The Modern Law Review Limited.
(2016) 79(2) MLR 283–316
Sally Sheldon
or facilities to administer.9However, while political opposition to abortion is
less vociferous on this side of the Atlantic, it has proved similarly intractable,
being clearly visible in the retention of clinically unjustified legal restrictions
on service provision. Over three decades ago our highest domestic court noted
that the development of medical abortion ‘invites, and indeed merits, the
attention of Parliament.’10 Yet while the technology has continued to develop
apace since this comment was made, such attention has been lacking, leaving
relevant laws steeped in the clinical beliefs and the practices of far earlier
times.11 Moreover, the development of medical abortion techniques offers just
one example, albeit a particularly powerful one, of the significant changes that
have occurred since our abortion laws were passed. Notably, along with other
technological advances, this period has also witnessed significant changes in
how we see the respective ethical rights and responsibilities of doctor and
patient, and the moral values that should inform clinical practice.
There is an important ongoing ethical debate regarding how a woman’sr ights
to autonomy, equality and reproductive health should be balanced against the
moral respect due to the developing embryo or foetus.12 This paper does not
seek to engage directly with it. Rather, taking seriously the broad purposes that
are said to inform British abortion leg islation, it analyses the poor alignment
between the aging statutory framework and contemporary clinical understand-
ings of best practice in abortion services, assessing the significant challenges that
the gulf between the two poses for clinicians, service provider s and regulators.
Law is said to be at its most effective where there is a shared regulatory com-
munity that accepts and endorses its terms.13 Abortion law provides a marked
example of what happens where this does not exist. Here, legal requirements
once justified by broadly shared moral understandings, concerns for patient
safety and requirements of best practice continue unsupported by or, indeed,
in opposition to such concerns. In what follows, I briefly outline the law
regulating abortion in Britain. I then consider three such points of significant
tension, which are inherent in the formal requirements that abortion decisions
must be made by two doctors rather than the pregnant woman herself; that
9 A. Templeton and D. A. Grimes ‘A Request for Abortion’ (2011) 365 The New England Journal
of Medicine 2198. In the UK, medical abortion typically involves the sequential administration
of mifepristone (an antiprogestin, which acts to block the progesterone receptors causing the
uterine lining to break down and increasing the sensitivity of the uterus to prostaglandins)
followed by misoprostol (a prostaglandin analogue, which induces uterine contractions that
expel the contents of the womb). See RCOG, The Care of Women Requesting Induced Abor tion
(Evidence-based Clinical Guideline No 7) (London: RCOG, 2011), for guidance regarding best
practice.
trimester prostaglandin inductions. See below for detailed discussion of this case.
11 The only changes made to the Abortion Act since its enactment were a small number of
amendments in 1990, see, generally, Sheldon, n 8 above, ch 6. One of these amendments, s
1(3A) is discussed further, see n 150 below and accompanying text.
12 For an introduction to the voluminous literature, see: J. Finnis, M. Cohen, T. Nagel and T. F.
Scanlon The Rights and Wrongs of Abortion:A Philosophy & Public Affairs Reader (Princeton, NJ:
Princeton University Press, 1974); and M. Tooley, C. Wolf-Devine, P. E. Devine and A. M.
Jaggar, Abortion: Three Perspectives (Oxford: OUP, 2009).
13 Black, n 1 above, 178.
C2016 The Author. The Modern Law Review C2016 The Modern Law Review Limited.
(2016) 79(2) MLR 283–316 285
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