1. 1England, Wales and Scotland

3. Offences Against the Person Act (1861)* s.58: A pregnant woman who unlawfully attempts to procure her own miscarriage, or any third party who unlawfully attempts to procure a miscarriage, commits an offence (punishable by life imprisonment). s.59: Anyone who unlawfully supplies any drug or instrument to procure such a miscarriage commits an offence (five years imprisonment). * Applies in E, W and NI, with common law offences in S.

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5. 1.There is no ethical justification for drawing a bright line at the moment of implantation. 2.Current laws may block the development and use of methods of fertility control that operate around the time of implantation or very early in pregnancy, e.g.: Treatments that a woman might potentially use on a planned schedule only once in each menstrual cycle, no matter how many prior coital acts she had had over that period. Treatments used, on average, a few times a year, when a woman’s menstrual period is late.* * See, Raymond et al, (2013) Embracing post-fertilisation methods of family planning: a call to action’ 39 Jo Fam Plann Reprod Health Care 244.

7. Abortion Act (1967)* Aimed to ensure that ‘socially acceptable abortions should be carried out under the safest conditions attainable’. It provides that no offence is committed under the OAPA (1861), where: Two doctors certify that abortion is justified on the basis of one of four broad grounds set out in the Act; The abortion is performed by a doctor; The abortion is performed on NHS or other approved premises. * Applies in E, W & S, not NI.

8. 6. The Abortion Act now exists in tension with its own policy drivers. The broad purposes which informed the legislation were operationalized through a set of restrictions that no longer make sense in the context of modern medical practice. If the law is interpreted so as to give effect to these purposes, the restrictions are interpreted so broadly as to become essentially redundant. If the law is interpreted narrowly, the restrictions may impact negatively on best practice.

9. 3. It is lawful for doctors to exercise their legal decision-making responsibilities under the Abortion Act in a way that, in practical terms, results in abortion on request.

10. The law is now ‘wrongly, liberally construed in practice so as to make abortion available essentially on demand prior to 24 weeks with the approval of registered medical practitioners.’ Lord Denning MR, RCN v DHSS [1981] 1 All ER 545, 554

11. The Abortion Act is interpreted ‘so loosely that abortion has become obtainable virtually on demand.’ Cooke J, R v Sarah Louise Catt, Sentencing Remarks (17 September 2012) [15].

12. ‘people [are] engaging in a culture of both ignoring the law and trying to give themselves the right to say that although Parliament may have said this, we believe in abortion on demand.’ Andrew Lansley, Telegraph (22/3/2012).

13. 3. It is lawful for doctors to exercise their legal decision-making responsibilities under the Abortion Act in a way that, in practical terms, results in abortion on request. This interpretation of the law respects evidence of the relative risks to health of abortion versus ongoing pregnancy; current professional ethical guidance; and broader shifts in public opinion. This evolving context cannot overrule statutory provisions but it appropriately influences interpretation of them.

14. 4. The requirement that abortions be performed by doctors has been broadly interpreted by the courts, to mean that a doctor must retain ‘overall responsibility’ for the procedure. The condition is fulfilled ‘when [the abortion] was a team effort carried out under [the doctor’s] direction, with the doctor performing those tasks that are reserved to a doctor and the nurses and others carrying out those tasks which they are qualified to perform.’ Greater Glasgow Health Board (Appellant) v Doogan and another (Respondents) (Scotland) [2014] UKSC 68, per Lady Hale, citing RCN v DHSS [1980] UKHL 10.

15. 4. The requirement that abortions be performed by doctors has been broadly interpreted by the courts, to mean that a doctor must retain ‘overall responsibility’ for the procedure. Where nurses or midwives provide safe abortion care as part of a multi-disciplinary team that includes a doctor, it is lawful for them to carry out the physical acts that end a pregnancy. Under existing law, it is lawful for trained nurses or midwives to perform vacuum aspiration procedures.

16. 5. The requirement that abortions be performed only on NHS or approved premises has been narrowly interpreted. It now actively cuts against the Abortion Act’s purpose of ensuring safety. As currently interpreted, this provision impedes the delivery of safe and acceptable treatment. Clinics now offer treatment protocols (including same day or near simultaneous administration of mifepristone and misoprostol) that are known to be less effective but which maximize patient choice in the face of clinically unnecessary legal restrictions on services.

17. 6. The Abortion Act now exists in tension with its own policy drivers. The broad purposes which informed the legislation were operationalized through a set of restrictions that no longer make sense in the context of modern medical practice. If the law is interpreted so as to give effect to these purposes, the restrictions are interpreted so broadly as to become essentially redundant. If the law is interpreted narrowly, the restrictions may impact negatively on best practice.

18. 7. These serious tensions in how abortion law should be interpreted cannot be remedied without statutory reform. Lack of clarity in the law is a particularly egregious failing in the context of legislation which threatens onerous criminal sanctions against professionals who are acting in good faith and providing safe care to women. #mabal2016