Early medical abortions at home to be made permanent following temporary pandemic provisions

While the battlelines over the ethics and legality of abortion in the United States become increasingly entrenched, particularly since the draft opinion of the Supreme Court Justice Alito, which would overturn Roe v Wade, was leaked, the legal landscape in the UK has edged towards a slightly more permissive position.

The UK Parliament voted on 30 March 2022 to make temporary measures introduced during the Covid-19 pandemic, which allow both tablets for an early medical abortion to be taken at home provided certain conditions are met, permanent in England and Wales. The vote was the result of an amendment to the Health and Care Bill.

The Health and Social Care Act 2022 received royal assent on 28 April 2022. The effect is that the Abortion Act 1967 is amended, with a new section 1A, so that these temporary provisions are made permanent. Commencement regulations covering this provision have not yet been made.

An early medical abortion involves taking two different medicines (first mifepristone, then misoprostol) to end the pregnancy, usually one or two days apart. It is defined as an “early” medical abortion if the pregnancy has not exceeded nine weeks and six days.

Under section 1(3) of the Abortion Act 1967 (“AA67”), as amended by the Human Fertilisation and Embryology Act 1990, an abortion must take place either in an NHS hospital or an “approved place”.

Even prior to the pandemic, since 2018 the Secretary of State had approved a woman’s home for the purposes of taking the second medication, misoprostol (but not mifepristone).

On 30 March 2020, to ensure access to early medical abortion was not impeded during the pandemic, and for public health reasons, the Secretary of State approved two classes of place pursuant to his powers under section 1(3) and (3A) of the AA67:

"2. The home of a registered medical practitioner is approved as a class of place for treatment for the termination of pregnancy for the purposes only of prescribing the medicines known as Mifepristone and Misoprostol to be used in treatment carried out in the manner specified in paragraph 4.

3. The home of a pregnant woman who is undergoing treatment for the purposes of termination of her pregnancy is approved as a class of place where the treatment for termination of pregnancy may be carried out where that treatment is carried out in the manner specified in paragraph 4."

Various other conditions regarding video consultations were stipulated.

This temporary approval was challenged unsuccessfully in R (on application of Christian Concern) v Secretary of State for Health and Social Care [2020] EWCA Civ 1239. The Supreme Court refused permission to appeal.

Following a DHSC consultation, in late February 2022, the Government announced that the provision of early medical abortion in England would return to pre-covid arrangements. The transitional provisions were extended by six months and scheduled to end on 29 August pursuant to an approval of the Secretary of State dated 21 March 2022.

However, there was a u-turn, and in the end, Parliament voted on an amendment to the Health and Care Bill which would make the provisions permanent, as described above.

This legislative development is certainly not without controversy; however, it has received strong support from many medical organisations, including the Royal College of Obstetricians and Gynaecologists.

One interesting thing to note is that it is not clear whether the use of the word “woman” in the legislation leaves a lacuna in the law on abortion more generally for trans men who have a Gender Recognition Certificate, so it is worth taking care if you find yourself advising a trans man in these circumstances.

Hannah Gibbs an expert across public law, including health and social care law. She is also a longstanding teacher in medical law at the London School of Economics.