legal challenge on Emergency Contraception
By Ellie Lee
The current High Court case in Britain about Emergency Contraceptive
Pills (ECP) indicates the problem of a regulatory framework
that criminalises women's attempts to regulate their fertility.
In the action brought by the
Society for the Protection of Unborn Children (SPUC), lawyers
for the Society are contesting the decision taken by the UK
Government last year to license sales of ECPs in pharmacies.
Selling Pills this way, according to SPUC, breaches the terms
of the 1861 Offences Against the Person Act. Section 58 of
this Act criminalises an attempt to 'procure a miscarriage',
Every woman, being with
child, who, with intent to procure her own miscarriage,
shall unlawfully administer to herself any poison or other
noxious thing, or shall unlawfully use any instrument or
other means whatsoever with like intent, and whosoever,
with intent to procure the miscarriage of any woman whether
she be or be not with child
..shall be guilty of an
offence, and being convicted thereof shall be liable to
Under this Act, and offence
is committed by the person who administers the 'poison' or
uses the 'instrument', and the woman herself, whether the
woman concerned is actually pregnant or not.
Currently this Act is considered
irrelevant to the provision of ECPs (and all contraception),
because they are not deemed to cause a miscarriage. It is
considered that a miscarriage can only happen when an embryo
is implanted in the womb, and ECP works to prevent this taken
place. Thus a distinction is made with abortion, which is
regulated by the 1861 Act. This Act underpins the regulation
of abortion in Britain - abortion can be legally performed
in Britain because the 1967 Abortion Act (as amended) creates
a defence for doctors against the criminality of abortion.
It deems it lawful for doctors to authorise an abortion, on
the grounds set out in the Abortion Act.
According to SPUC, however,
this distinction between abortion and contraception is misplaced.
SPUC's QC, Richard Gordon, has told the High Court that the
provision of ECP does breach the terms of the 1861 Act, arguing
that at the time when the Act was passed, the understanding
was that pregnancy began with fertilisation. Thus, contend
SPUC, ECP can be considered prohibited under the 1861 statute,
since, through preventing the implantation of the fertilised
ovum in the lining of the womb, it causes a pregnancy to end.
SPUC's action is being opposed
in the High Court by the Department of Health, which is expected
to argue that taking ECP does not lead to miscarriage, because
the modern understanding is that a pregnancy does not begin
until the fertilised egg has implanted. Thus ECP should not
be regulated in the same way as abortion.
It seems unlikely that SPUC
will win this case. Medical opinion in general accepts the
distinction between fertilisation and implantation. The notion
that there is a difference has been given greater weight by
the development of technologies such as IVF. In these technologies,
fertilisation take place outside of the woman's body, and
few would consider that a pregnancy had begun in the petri
dish. Most would agree it begins when the fertilised egg implants
in the women's uterus.
The court case is likely to
be dominated by such discussion, drawing on medical understanding.
Most of the first day of the hearing, on 12 February, was
taken up with reviews of medical literature from the 19th
century. According to the lawyer for SPUC, this literature
demonstrated an understanding of the basic process of conception
and implantation. 'Ultimately' he said, 'the resolution of
the challenge lies in an analysis of the word miscarriage
as used by parliament in 1961 and as used today'. It seems
likely that the evidence given by the lawyers for the Department
of Health will be able to indicate that medical knowledge
has developed, and that there are good reasons for removing
the regulation of ECP from the terms of the 1861 Act.
At a common sense level, SPUC's
case appears bizarre. How could it be the case that anyone
could suggest that women who use ECP should be charged with
a criminal offence? In the discussion of the case so far,
in the media and in on-line chat-rooms, the marginality of
SPUCs approach, which implies that women who use ECP are at
fault, and are 'taking a life', is very clear.
And it is easy to see why
SPUCs line is rejected by most. Who could possibly think it
makes sense? It seems that even SPUC find it hard to believe,
since in their public comments, they are falling over themselves
to find a way to present what they are doing as 'woman friendly',
not a defence of the 'unborn'. SPUC's national director, John
Smeaton, thus told the Today programme that the presentation
of ECP as contraception was a 'cynical deception of women'.
In his comment for BBC News online, he even compared his views
to those of the feminist writer Germaine Greer, and suggested
that SPUC has 'more trust in women than the Family Planning
Association'. But no-one really believes that they are doing
this for women's benefit.
Even if SPUC does not lose
at the High Court, it seems inevitable that the government
will ensure that ECP and contraception will continue to be
made easily available. As Ann Furedi, director of communications
for British Pregnancy Advisory Service told Today, 'In a civilised,
modern society, the government would have to step in to take
measure to allow woman to benefit from the modern science
of contraception'. Given the government itself took the move
of licensing ECP for pharmacy sale in the first place, they
have an interest in defending this policy.
Yet would be unfortunate if
the terms of this whole discussion were not considered further,
and more thought given to the issues raised. Discussion of
the issues this case throws up should not end once the practicalities
of making sure women can get ECP easily are resolved. Rather,
the case provides the opportunity to think seriously about
how we should best understand, and regulate, methods of fertility
A useful starting point would
be experience of women. For the woman who fears she may be
pregnant and doesn't want to be, it of course makes no difference
whether medical opinion believes that pregnancy begins at
conception or implantation. While the ins and outs of this
distinction will matter in the Court this week, from the point
of view of what women need, this question is surely not the
A woman who is pregnant and
doesn't want to be just wants to be able to end it. The provision
of ECP 'over the counter' has been a great gain for women
in this respect. Stories now abound of women's great relief
at being able to get to chemist, not have to wait for appointment
with a doctor or at a clinic, and get the pills without having
to endure moralising words or disapproval from some health
Experience tells us that women
want and need to be able to regulate their fertility. To meet
this need, the best solution would be a regulatory framework
that recognises it and takes it seriously. From this perspective,
the starting point must surely be the removal of the regulation
of means of fertility control from the criminal law entirely.
What is the point in having a law that deems it criminal offence
to 'procure a miscarriage'? Who could possible gain from this
kind of law?
It is likely that the Government
will want to avoid debating this issue, and will prefer instead
to restore the status quo, with the placement of contraception
outside the criminal law, and abortion within it. Because
to move beyond the practical issues raised by the SPUC case,
and to think about the issue more widely, has implications
well beyond ECP (as SPUC well know).
But it would be a pity if,
because of the wish to make sure women can get ECP, the problem
of a law that defines the removal of a fertilised egg that
has implanted in the uterus as a criminal offence is not confronted.
One positive outcome of this case is that it provides an opportunity
open up a debate this issue.
We should begin to ask why,
in 21st century, we still live in a society that refuses to
take the step of regulating fertility control on the basis
of what it really is - not an act that should be criminalized,
but a measure taken by women who want to be in control of
deciding when and in what circumstances they have children.
In this sense, abortion should no more be a matter for the
criminal law than ECP.
What women need and deserve
is to live in a society that shows it takes them seriously
enough to have laws that reflect their right to decide on
a matter so fundamental to their lives. So let the debate,
begin, not end, once SPUC's case has finished.
Boseley, Sarah. 'Bid to block
sale of morning-after pill'. The Guardian, 13 February,
'Legal challenge to morning-after
pill', BBC News on-line, 12 February, 2002.
'Head to head: Contraception
challenge', BBC News on-line, 12 February, 2002.