In the first article of the Law Network's ongoing Blog Series, Charlotte Kelly discusses the significance of the Home Office's consultation: 'Home use of both pills for early medical abortion'.
The Young Fabian Law Network have introduced a new blog series examining a number of policy areas through a legal lens. This will cover many of the key questions facing the party and Britain today, including where should power lie in our public spaces and workplaces, how should our citizens be dealt with by our government and our governments deal with each other, and how can legal tools be used to solve common problems like climate change. Join us each month for an instalment and if you are interested in writing a piece in collaboration with a Law Network member on the intersection between law and your own field, please contact our Chair John Morgan at [email protected]
The law regarding abortion in England, Wales and Scotland has changed very little since the Abortion Act was passed in 1967. Abortion is still criminalised, and the law simply provides some exceptions to this rule. The means and place of abortion are both controlled by law. All women, including those having a medical abortion before 10 weeks gestation, which consists of taking two pills, have been required to attend a clinic or hospital at least once for assessment and to be given the pills.
Introduction of telemedicine early medical abortions
This changed on 30th March 2020 at the start of the Covid pandemic, as the Government was, somewhat reluctantly, persuaded to introduce early medical abortion remotely managed by telemedicine (i.e. using contact between healthcare provider and service user by telephone or video call rather than in-person consultation). For the first time, women at up to 10 weeks gestation can be prescribed the two pills for medical abortion, mifepristone and misoprostol after a telephone consultation, and then either have that medication posted to them or alternatively collect it themselves from the clinic. This is the first time that women can benefit both from the enhanced dignity and flexibility offered by self-managed abortions and the benefits of built-in safeguarding provided during the telephone consultation with a trained nurse or doctor. By June 2020, half of all abortions occurred with both medications taken at home. But this advance was introduced as temporary legislation.
There is now a Home Office Consultation on “ Home use of both pills for early medical abortion up to 10 weeks gestation”, closing on 26th February. Anyone can and is encouraged to submit a response. At stake is the risk of a return to the old system, and the end of telemedicine abortions. The decision to have an abortion is a personal one, but the personal becomes political when there is a risk that women will no longer be able to access the means of abortion which is safest and best respects their dignity.
If persuaded for no other reason, politicians must recognise that telemedicine for early abortion is a remarkably successful public health development. A large scale study has compared over 22,158 women who had a traditional early medical abortion with attendance at a clinic between 1 January and 1 March 2020 with 29,984 women who had an early medical abortion after the law changed, between 6 April and 20 June 2020. Against all the pressures of Covid, mean waiting times fell from 10.7 days to 6.5 days. Women are therefore able to have their terminations earlier in their pregnancy than before, which saves the emotional distress of compelling a woman who has chosen to terminate her pregnancy to continue it whilst they wait for availability. In addition, the use of telemedicine means that women are able to terminate their pregnancy sooner after they make their decision, because they no longer need to organise a day off work or make alternative caring arrangements in order to visit a clinic which may be some distance from their house. NICE estimates that for every day’s reduction in waiting times, the NHS in England would save £1.6m per year, because earlier abortions have fewer complications, and can be provided using medication, rather than more invasive surgery. Though opponents of the reform have raised concerns that telemedicine abortion leaves women alone and distressed at home as they pass the contents of their pregnancy, since January 2019, women having medical abortions up to 10 weeks’ gestation have had the option to take the second pill, misoprostol at home after taking the mifepristone at a clinic. This reform followed distressing accounts of women taking misoprostol at a clinic and then starting to bleed whilst still on public transport on the way home, because expulsion was unexpectedly rapid. So telemedicine changes nothing here.
Telemedicine does not remove the option of any women attending a clinic under the traditional model, if they prefer. The telephone consultation identifies those women under 10 weeks' gestation who need to see a health professional face to face, perhaps because of an uncertainty over the length of the pregnancy, or because a woman has particular social or health risk factors.
Respect for women’s bodies, respect for women’s decisions
At its core, this is an issue of reproductive rights; of respect for women and for the choices they make over their bodies. The requirement that a woman attend a clinic in person stems directly from the 1967 Act, when the only form of abortion was surgical, and the aim was that women attended safe facilities rather than have backstreet abortions. The legislators never conceived of early abortions being possible simply by taking one pill, and then a second two days later, before passing the pregnancy in the privacy of their own homes, taking mild painkillers if necessary. The law has not kept pace with medical innovation. More importantly, it removes a medical paternalism which has hung over women’s health for too long.
Women seeking abortions are of course not a homogenous group, and their gender intersects with many other identities. There is evidence that abortion via telemedicine is of particular benefit to those women with intersecting marginalised identities. As Rachel Hagan points out “At-home abortions are a class issue.” How are those living precariously on a zero hours contract supposed to take the day off work to visit the clinic? The majority of women seeking an abortion have children, and we are in the middle of a period where many children are currently at home, so who is going to look after the children? A model of abortion care which requires an in-person visit to a clinic assumes a job with paid vacation days, available and affordable childcare at short notice, even sufficient money to take public transport to the clinic. These are all assumptions that ignore the reality of life in the precariat.
Providing greater privacy for those choosing abortion
Telemedicine also permits greater privacy. A telephone call made at a convenient moment for a woman, followed by a parcel, attracts far less attention from partners or others trying to control her through emotional abuse than having to leave the home. A young woman who couldn’t drive and was stuck in lockdown with religiously orthodox parents who didn’t know about her pregnancy describes the relief of being able to end her pregnancy privately. Women who fear community judgment about the circumstances of their pregnancy are able to avoid a visit to a clinic which might attract attention to their pregnancy. As with so much of reproductive medicine, there is an assumption in traditional abortion care that the pregnant person will be a non-disabled person who is easily able to attend a health centre - telemedicine in this as in many medical fields could transform access for people with disabilities. The benefits of telemedicine for pregnant trans* or non-binary people is an area which urgently needs more research, but we know from research that privacy and minimising the invasiveness of clinic examination is a key concern, so the potential for telemedicine in early medical abortion seems promising.
Labour Party leading the way on reproductive rights
This should be a cross-party issue, and indeed there is support from MPs from multiple parties. But it is particularly important as Fabians and Labour Party members that you make your views known to the Consultation. This government has gone back on decisions before now - at start of pandemic after telemedicine abortion was first announced there was a chaotic u-turn cancelling the change, before another u-turn reinstated the changes. Labour Party MPs have been at the forefront of extensions of reproductive rights over the past few years. Stella Creasy and Conor McGinn tabled the amendment which led to the decriminalisation of abortion in Northern Ireland in October 2019. Rupa Huq has repeatedly put pressure on the government to introduce exclusion zones around abortion clinics where protestors are excluded, after the first such buffer zone was introduced in her constituency.
Those providing abortions are clear; according to Dr Jonathan Lord, Medical Director at MSI Reproductive Choices, “If there is a decision to stop telemedical abortion care, it is not because of any scientific evidence. It will be wholly for political reasons.” The consultation closes on 26th February - filling it out need not take long, but it is your chance to influence a crucial moment in reproductive rights.
 *Note on language: The terms ‘woman’ and ‘women’s health’ are used for brevity. We know that it is not only individuals who identify as women require access to these healthcare services, including trans men and non-binary individuals, and we support efforts to make healthcare services inclusive and sensitive to the needs of people who identify as a different gender than they were assigned at birth. https://everydayfeminism.com/2014/08/gender-inclusive-discussing-abortion/
Charlotte Kelly is a PhD student in Socio-Legal Studies at University of Oxford, where she studies how law and society have regulated female adolescents’ bodily autonomy. She is keenly interested in family law, particularly law involving children at risk, both in the UK and in South East Asia. She is an Officer of the YF Law Network and tweets @ckelly_law.