Challenging Home Abortion in Scotland: Society for the Protection of Unborn Children v Scottish Ministers
| Pages | 103-110 |
| Published date | 01 January 2019 |
| Author | |
| DOI | 10.3366/elr.2019.0530 |
| Date | 01 January 2019 |
Abortions are potentially illegal under Scots common law unless they meet the criteria set down in the Abortion Act 1967 (hereafter “the 1967 Act”): namely that they are performed by a registered medical practitioner on specific medical grounds, and in an approved location. Section 1(3) of the Act lists various types of hospital as approved locations and authorises Ministers to approve individual premises on a case-by-case basis. Section 1(3A) of the Act, inserted by the Human Fertilisation and Embryology Act 1990 (“The 1990 Act”), allows Ministers to approve a “class of places”.
On 26 October 2017, exercising their section 1(3A) powers, the Scottish Ministers approved “[t]he home of a pregnant woman who is undergoing treatment for the purposes of termination of her pregnancy”.
The Approval is unpublished by the Scottish Government. It was circulated to health boards and like institutions by the Scottish Government's Chief Medical Officer along with Guidance for the Approval's implementation which had been prepared by the Scottish Abortion Care Providers Network (“the Guidance”).
The Society for the Protection of Unborn Children (“SPUC”) challenged the lawfulness of this Approval by judicial review, which was heard by Lady Wise in the Outer House of the Court of Session in May 2018. She rendered judgment on 15 August 2018 in favour of the Scottish Ministers.
This article analyses the judgment at first instance and submits that its rationale is unsound; this raises questions for the UK-wide adoption of the Scottish model. This article also addresses outstanding questions about the Approval and Guidance. Significant issues with the legality of the Approval on public law grounds are explored by the authors elsewhere.
There were two points at issue. First, whether a home is a permissible “class of places” for the purposes of the Act. Secondly, whether the treatment anticipated in the Approval is performed by a registered medical practitioner as required by section 1(1). However, these issues are blurred thus resulting in overlap between the corresponding parts of the judgment. Moreover, the Scottish Government's failure to support all of its arguments resulted in Lady Wise's reasoning becoming somewhat remote from the parties’ legal argumentation in places.
Both parties accepted that pregnant women can currently self-administer misoprostol at an approved place then immediately leave so that the loss of pregnancy occurs at home.
The petitioners disputed the lawfulness of pregnant women's homes as a “class of places” for the purposes of section 1(3A) of the Act, making three interconnected arguments.
First, that a competent “class of places” cannot be so broad as to comprise all homes of pregnant women undertaking abortion treatment. Places within a class must also be linked by shared features unconnected to a user (i.e. the woman).
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