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At-Home Early Medical Abortions Made Permanent in England and Wales

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On 30 August 2022, the UK government permanently amended the Abortion Act 1967 to allow Early Medical Abortion (EMA) treatment to be administered at home.[1] This blog post explains the significance of this change in removing barriers to accessing abortion treatment. It also discusses the recent R v Foster case, where a woman was jailed for taking abortion pills beyond the legal time limit.[2]

Legal access to EMA treatment

It is widely believed that abortion is legal in the UK, but having an abortion is still a criminal offence.[3] Legal abortion can only be obtained if the pregnancy presents certain risks: risks to the mental or physical health of the person or their family before 24 weeks gestation; or serious risks to the health or life of the pregnant person; or that the future child may be born with a serious handicap. [4] Abortion treatment can involve a variety of methods depending on the length of the pregnancy. EMA is commonly prescribed as a method of abortion in the UK during the first 10 weeks and currently involves the administration of two pills at separate intervals: mifepristone and misoprostol.[5] Pregnancies of a longer gestation (>10 weeks) are terminated using different methods.

When EMA was first introduced in the 1980s, the law required both pills to be provided under medical supervision, so patients receiving EMA treatment had to travel to a clinic at least twice: once for each pill.[6] This travel requirement was at best inconvenient and at worst a barrier to accessing abortion treatment for some, as detailed below, even if they met the legal conditions for accessing abortion. In 2018, the law changed to allow the second pill (misoprostol) to be taken at other approved locations, like the patient’s home. Medical supervision was still required, usually by teleconsultation, but the medication could be provided by post to avoid the patient having to travel. However, the first pill (mifepristone) still had to be administered in a clinic or hospital. In March 2020, the COVID-19 lockdown restrictions on movement limited people’s access to in-person medical treatment, which severely limited access to EMA. To address this, temporary measures were introduced in March 2020 to allow the first pill to also be provided remotely. As a result, EMA treatment could be provided to patients completely remotely for the first time in England, Scotland, and Wales, known as Telemedical Early Medical Abortion (TEMA). This change was not adopted in Northern Ireland. This temporary change was only intended to last until all COVID-19 pandemic restrictions had been lifted, but it was made permanent in August 2022.[7] Despite the fact that women are very rarely found to have committed an offence under the Act, it is still the case, as the decision in R v Foster demonstrates, that failure to comply with the legal limits of EMA treatment can still result in criminal prosecution.

Necessity of legal requirements

Prior to the change in the law, the Abortion Act 1967 required all abortion treatment to be carried out in an approved clinic or hospital.[8] This rule continued to apply to EMA until the revisions in 2018 and 2020.[9] It is surprising that the law was revised only recently, because there has been extensive research in the last two decades which demonstrates the safety and efficacy of TEMA treatment.[10] TEMA treatment was standard in the US in 2008, but UK law did not permit this until over a decade later.[11] Therefore, this legal requirement appears to have been retained unnecessarily.

It has been a long-term aim of the NHS to practice and promote evidence-based medicine, and to this end research in the UK is encouraged and supported by bodies such as the National Institute for Health Research (NIHR) and Medical Research Council (MRC).[12] Within this context, it does not make sense why the aforementioned legal requirement was changed almost two decades after the publication of research demonstrating the safety and efficacy of TEMA. It is interesting to note that the change in March 2020 was introduced due to the limitations on accessing treatment during the COVID-19 lockdowns and not purely based on clinical evidence. As pointed out by Clare Murphy in 2018, ‘there is no clinical reason to deny women the option of using this medication at home,’ but no justification has been provided for why the clinical evidence was not acted upon.[13] Sheldon and Parsons and Romanis suggest that the original requirement may have been politically motivated because it ‘constitutes a part of the political case for tight regulatory control of abortion’ which stems from the culture of abortion exceptionalism in the UK which treats pregnant bodies ‘as a site of public and political contention’.[14]

Practical barriers to treatment

Prior to March 2020, patients were required to travel to a clinic or hospital to access EMA treatment, which created practical barriers to accessing treatment.

Socio-economic barriers

The costs of travelling to appointments are harder to bear for patients from lower socio-economic backgrounds, and finding time to attend appointments is an issue for those with work or childcare commitments, as pointed out by Parsons and Romanis.[15] In addition to this, individuals with mobility issues may also find that travel is more costly and time consuming. Furthermore, as the WHO points out, some may have to travel greater distances than others to access treatment, thus compounding these barriers. For some individuals, several of these barriers may apply.

When these barriers apply, individuals may be forced to delay when they can access treatment or consider if they can afford to access treatment at all.

When treatment is delayed, this can have significant consequences for treatment options and health outcomes. Some abortion treatments are only offered before certain timepoints, for example EMA is offered at <10 weeks gestation, so a delay in accessing treatment may bar a patient from certain methods of abortion which may be easier or safer. If a person is eligible to receive a legal abortion then there must be an identifiable risk involved in the pregnancy, because a risk is a requirement under all the legal abortion grounds.[16] Any delay in receiving treatment may exacerbate this risk, which is especially concerning if it is a risk to the pregnant person themselves. Furthermore, because of the short legal timelines for accessing abortion, a delay may result in a patient being denied a legal abortion altogether.

If someone is struggling to afford the cost of travel, or is physically unable to travel, then this may prevent them from accessing treatment at all. Similarly, if treatment is not provided when there is an identifiable risk in the pregnancy, this could lead to increased risk and serious health outcomes—including death—for the pregnant person. As many have argued, these delays and barriers would be alleviated if EMA was provided remotely.[17]

It is clear that the travel requirement can result in increased health risks and outcomes. However, many other forms of medical treatment in the UK can only be accessed in a clinic or hospital, and so patients are required to travel to access treatment. This requirement may be justified in some scenarios, for example because it is unsafe to administer treatment outside of these settings. Even though this may create practical barriers to accessing treatment, there is no safe alternative. However, as outlined above, the administration of TEMA was shown to be safe long before March 2020, and therefore the retention of this legal requirement was unnecessary. As such, the practical barriers created by the legal requirement were unjustified and should have been removed earlier.

Experience of receiving treatment

It is also important to note that abortion treatment, including EMA, can be a difficult and unpleasant experience.[18] Parsons and Romanis point out that when treatment is administered within a clinic, the miscarriage may be induced while the patient is travelling home.[19] This has caused discomfort and embarrassment for patients experiencing this in public, for example when travelling by public transport.[20] In addition to the miscarriage itself, common side effects include diarrhoea (sometimes severe), cramps, pelvic inflammatory disease, uterine disorders, vaginal haemorrhage (sometimes severe), and vomiting, amongst others.[21] More severe side effects may also occur. Research has shown that some individuals prefer a setting that is private and comfortable, with family present, and without the ‘shame of the procedure’.[22] The legal provision for TEMA provides them with that option.

Concerns with self-reporting: R v Foster

In the recent case of R v Foster, a woman received TEMA treatment after claiming that she was less than 10 weeks pregnant. She was initially able to obtain a legal abortion under the first ground of the Abortion Act 1967—as described above—which permits abortion before 24 weeks. It later transpired that she had lied about the duration of her pregnancy and was actually 32-34 weeks pregnant—well beyond the time limit for accessing a legal abortion under this ground and also beyond the NHS time limit for TEMA treatment. She was charged with procuring an illegal abortion under section 58 of the Offences Against the Person Act (OAPA) 1861 and sentenced to 28 months' imprisonment.[23]

Before TEMA was permitted in the UK, one of the objections to allowing it was that pregnancies would not be accurately dated. Before TEMA, patients would travel to a clinic for EMA and undergo a scan to confirm that the pregnancy was less than 10 weeks along before receiving treatment. With TEMA, no scan or in person medical check takes place, and pregnancy dating is based on self-reporting by the pregnant person. The concern was that women would report that they were less far along in the pregnancy than they actually were—whether by intentionally lying or by mistake—and this might cause women to 1) access EMA treatment beyond the NHS 10 week time limit, which may present health risks, and more importantly 2) may allow abortion to be obtained beyond the time limits allowed by the Abortion Act 1967. Before R v Foster, these concerns were largely considered to be unfounded. An expert witness from the Royal College of Obstetricians and Gynaecologists (RCOG) stated that abortion providers ‘have well developed and effective systems for assessing and managing risks’, and research has shown that people are generally able to date their gestation with reasonable accuracy.[24] The possibility of someone lying to obtain TEMA treatment was considered a possibility but deemed to be an unlikely and exceptional occurance.[25]

However, the case of R v Foster has made these concerns a reality. This case has caught the attention of the public: it has been reported on the frontpage of national news websites, and petitions from high profile groups (including RCOG) were sent to the judge.[26] This case has created a public discourse, with people primarily being outraged at either the fact that abortion remains a criminal offence or that it appears easy to obtain illegal abortion treatment from the NHS. In the context of TEMA, the question that arises is whether this case is enough to demonstrate that TEMA is too open to abuse to be workable. But is one case really enough to conclude this? In order to answer this, we must balance the issues with EMA identified with this case against the beneficial removal of barriers to abortion treatment.

As outlined above, before TEMA there were substantial financial and time barriers to accessing legal abortion treatment. They affected a large portion of the UK population—people with childbearing potential from lower socio-economic backgrounds or with children. These barriers were alleviated by the introduction of TEMA, but they would return if it was banned.

It is important to remember that abortion is not a right in the UK and it remains a criminal offence (outside the exceptions under the Abortion Act 1967). TEMA appears to provide an opportunity for individuals to commit this offence by lying about how far along their pregnancy is to access this treatment, which may cause the number of illegal abortions to rise. This poses a problem for legal compliance, especially because it may be difficult to detect when the law has been broken. However, it is argued that even with this opportunity, this behaviour will likely be deterred because of the punishment attached to this law. The maximum sentence for illegal abortion is life imprisonment, which is currently the most severe single punishment in UK criminal law.[27] It is normal for laws to be backed up by punitive measures, such as imprisonment, to act as deterrents. However, if the law goes beyond this to ban procedures that may make it easier to break the law, then it is going too far. It is not justifiable for the law to control medical treatment just in order to promote compliance with the law, because this is not enough to override the importance of maintaining people’s access to safe and convenient health treatment. This is especially important where, as explained above, the aforementioned barriers which caused people to delay treatment had negative impacts on people’s health outcomes.

Finally, R v Foster is just one case. Between April 2020 and June 2022, since TEMA was permitted, 249,576 abortions have been terminated using TEMA in England and Wales.[28] This case is the only known abuse of this service, so if we balance this against all the reasons above, then it is not enough to justify changing the law to prohibit TEMA. If the abuse of TEMA to break abortion law becomes increasingly frequent, this debate may need revisiting. But for now, R v Foster is just an exceptional case.

Conclusion

The temporary change to the law in March 2020 to allow EMA treatment removed the unnecessary barriers to accessing treatment and brought treatment practice in line with current evidence-based medical practices. These new rules were due to revert back at the end of the COVID-19 pandemic, and so the permanent implementation of the law in August 2022 was crucial in preventing the reappearance of these barriers. The case of R v Foster gives legitimacy to concerns that remote TEMA treatment is open to abuse and may allow illegal abortions to be obtained, but this blog post argues that this one case is not significant enough to warrant overturning the benefits gained by permitting TEMA treatment.

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Footnotes:

  1. Department of Health and Social Care, ‘At home early medical abortions made permanent in England and Wales’.
  2. R v Foster sentencing remarks.
  3. Offences against the Person Act (OAPA) 1861, ss 58-59.
  4. Abortion Act 1967, s 1.
  5. See National Health Service, ‘Abortion: What Happens’.
  6. Previously Abortion Act 1967, s 3 (before revision).
  7. Department of Health and Social Care, ‘Health Update: Statement Made on 24 February 2022’.
  8. Previously Abortion Act 1967, s 3 (before revision).
  9. As outlined above.
  10. For UK research: Haitham Hamoda and others, ‘The acceptability of home medical abortion to women in UK settings’ (2005) 112(6) BJOG 781; for US research: EA Schaff and others, ‘Lowdose mifepristone followed by vaginal misoprostol at 48 hours for abortion up to 63 days’ (2000) 61(1) Contraception 41; World Health Organisation, Health worker roles in providing safe abortion care and post-abortion contraception (2015); World Health Organisation, Medical management of abortion (2019).
  11. RJ Gomperts and others, ‘Using telemedicine for termination of pregnancy with mifepristone and misoprostol in settings where there is no access to safe services’ (2008) 115(9) BJOG 1171.
  12. See for example Department of Health, Research and development: towards an evidence-based health service (1995).
  13. Clare Murphy (director of external affairs at the British Pregnancy Advisory Service) as quoted in Sanya Burgess, ‘Wales to allow women to take second abortion pill at home’ (Sky News, 29 June 2018).
  14. Jordon A Parsons and Elizabeth Chloe Romanis, Early medical abortion, equality of access, and the telemedical imperative (OUP 2021) ch 2, ch 3 at 3.2.1; Sally Sheldon, ‘The medical framework and early abortion in the U.K.: how can a state control swallowing?’ in Rebecca J Cook, Joanna N Erdman, and Bernard M Dickens (eds), Abortion Law in Transnational Perspective: Cases and Controversies (University of Pennsylvania Press 2014) 189.
  15. Parsons and Romanis (n 14) 3.4.3.
  16. Abortion Act 1967, s 1.
  17. Parsons and Romanis (n 14); Chris Baraniuk, ‘The Story of Abortion Pills and How They Work’ (Wired Health, 25 May 2022) accessed 22 Feb 2023.
  18. Baraniuk (n 17).
  19. Parsons and Romanis (n 14).
  20. Jordan Parsons, ‘2017-19 governmental decisions to allow home use of misoprostol for early medical abortion in the UK’ (2020) 124(7) Health Policy 679.
  21. National Institute for Health and Care Excellence (NICE), ‘Misoprostol’; NICE, ‘Mifepristone’.
  22. Kate Levine and Sharon T Cameron, ‘Women’s preferences for method of abortion and management of miscarriage’ (2009) 35(4) J Fam Plann Reprod Health Care 233.
  23. R v Foster (n 2)
  24. See for example Dana Schonberg and others, ‘The accuracy of using last menstrual period to determine gestational age for first trimester medication abortion: a systematic review’ (2014) 90 Contraception 5, 480; Parsons and Romanis (n 14) 5.2.1.
  25. Parson and Romanis (n 14).
  26. See for example Riyah Collins and PA Media, ‘Mother jailed for taking abortion pills after legal limit’ (BBC News, 12 June 2023), Tobi Thomas, ‘Outrage at jail sentence for woman who took abortion pills later than UK limit’ (The Guardian, 12 June 2023).
  27. OAPA 1861, s 58.
  28. This number does not include Scotland or Northern Ireland, and data after June 2022 for England and Wales is not yet available; Department of Health and Social Care, Abortion statistics, England and Wales: 2020 (GOV.UK, 10 June 2021); Office for Health Improvement and Disparities, Abortion statistics, England and Wales: 2021 (GOV.UK, 21 June 2022); Office for Health Improvement and Disparities, Abortion statistics for England and Wales: January to June 2022 (GOV.UK, 22 June 2023).

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