Court of Appeal dismisses challenge to abortion rules during COVID-19

In a judgment delivered today, the Court of Appeal has dismissed an appeal involving the decision of the Secretary of State for Health and Social Care to make changes to certain abortion measures during the COVID-19 pandemic.

An early medical abortion (i.e. before 10 weeks) is usually undertaken by the pregnant woman taking two medicines – Mifepristone and Misoprostol – in succession. There are strict requirements on where this treatment can be taken. Before 30 March 2020, women would have to attend a clinical setting to take Mifepristone and to obtain Misoprostol, which could then be taken at home.

In light of the COVID-19 pandemic, and in particular the lockdown measures announced on 23 March 2020, there was evidence that the availability of abortion services was substantially deteriorating and that women were reluctant to go to clinical settings. As a result, on 30 March 2020, the Secretary of State granted an approval, pursuant to s1(3A) of the Abortion Act 1967, to allow both medicines to be prescribed from a doctor’s home and to be taken at a woman’s home (the “Decision”). This removed the need for women to leave their houses to get an early medical abortion.

Christian Concern, a pro-life group, originally challenged the Decision on a number of grounds, including that: (a) it was constitutionally improper for this reform not to have been passed by Parliament; (b) it was a breach of legitimate expectations in light of previous statements that the abortion rules would not change; (c) the Decision was ultra vires the Abortion Act 1967; (d) the Decision was made for purposes outside those allowed by the Abortion Act 1967; and, (d) the Decision was a breach of the Human Rights Act 1998.

In the Divisional Court, Singh LJ and Chamberlain J dismissed the claim on all grounds finding that the Secretary of State acted within his powers in making the Decision and that it was not unlawful for any of the reasons advanced.

Following the grant of permission to appeal on (c) and (d) above, the Court of Appeal (King LJ, Davies LJ and Phillips LJ) today dismissed the appeal for reasons echoing those of the Divisional Court.

A copy of the judgment can be found here.

Julia Smyth and Yaaser Vanderman acted for the Secretary of State.