A recent decision from the Administrative Court, R (on the application of British Pregnancy Advisory Service) v Secretary of State for Health and Social Care, provides clarification of the time limit for termination of pregnancy performed under the Abortion Act 1967. This issue will be of wider interest to those working with vulnerable adults who lack capacity where termination is one of a number of options considered.
The issue in this case concerned the correct interpretation of the words, “the pregnancy has not exceeded it twenty-fourth week” in section 1(1)(a) of the Abortion Act 1967. It stemmed from guidance issued by the Chief Medical Officer on 23 July 2018 to all doctors performing terminations.
The BPAS argued that a pregnancy reaches its twenty-fourth week on week 24 + 0 days and exceeds it on week 24+1 day, and that this was in line with the Secretary of State’s long standing interpretation of section 1 (1) (a) of the 1967 Act.
The BPAS’s view was that the Secretary of State’s ‘clarification’ removed a day from the well-established upper time limit for lawful abortions – and its availability for vulnerable women seeking later gestation abortions.
The Secretary of State recognised that the clarified construction was contrary to the position previously taken by the Department of Health and Social Care, However, the court noted that the evidence did not indicate a settled construction of practice in line with the BPAS's arguments.
The correct construction of the words “the pregnancy has not exceeded its 24th week” in section 1(1)(a) of the 1967 Act is that a woman will have exceeded her 24th week of pregnancy once she is 24 weeks + 0 days pregnant, or in other words, from midnight on the expiration of her 24th week of pregnancy.
In tandem to the BPAS decision, the Appeal Court has overturned an earlier decision that a women with learning disabilities must have an abortion against her wishes. The judgment in that case is awaited.