'How Can a State Control Swallowing?': Medical Abortion and the Law

In March 2013, more than 100 Northern Irish women publically declared that they had procured abortions using drugs obtained online. They were undoubtedly right to state that they "represent[ed] just a small fraction of those who have used, or helped others to use, this method". Mifepristone (RU486), the drug which the New York Times in 1999 described as 'the little white bombshell', is now readily available over the internet, raising significant challenges to the way that we think about abortion and the possibility of successfully regulating access to it.

Medical abortion has brought about a revolution in abortion provision, contributing to a significant decrease in maternal mortality worldwide and now accounting for almost half of all legal terminations reported in England and Wales. Yet, after a flurry of interest in the early 1990s, following the development and first licensing of mifepristone (RU486), medical abortion has attracted very little sustained attention beyond the pages of medical journals. Specifically, its implications have provoked a notable lack of interest from lawyers, ethicists and gender studies scholars. Yet the implications of medical abortion - which provides a readily available, very safe, highly effective means of procuring a termination, with little need for technical assistance from third parties unless complications arise - seem extremely radical.

This project provides the first sustained analysis of the implications of medical abortion for the broader meanings attached to abortion and the thorny legal and ethical issues of how it can - and should - be regulated. While drawing lessons from a range of jurisdictions, the project will focus, in particular, on the UK and Ireland, which provide a geographically contained site incorporating legal regimes that range from the most restrictive in Europe to among the most liberal. The project will consider the challenges that MA poses for law, ethics and meanings in this context. It will analyse what impact medical abortion might have on how we understand abortion (for example: does its operation, in pill form early in pregnancy, blur perceived boundaries between abortion and contraception?). It will also assess the extent to which it challenges the ethical underpinning of those legal models that have liberalised access to abortion under very strict medical control (such as the British Abortion Act). Such laws have been said to depend on the twin rationales of taking control of a morally controversial procedure, on the one hand, and ensuring that women are not dying in backstreets, on the other. Yet if the public health argument drops away (if there is no clinical requirement for strict medical control), then an uneasy compromise regarding the need for medical supervision of abortion is disrupted.

Most fundamentally, medical abortion poses serious challenges for the enforcement of any prohibition of abortion, including very late in pregnancy (in a rare, recently reported case, Sarah Catt used drugs obtained on line to provoke her own miscarriage at around 38 weeks of gestation). Medical abortion raises serious issues for detection and proof and also for prosecution policy. 'How', asks one commentator, 'can a state control swallowing'? Prosecutors have, historically, generally preferred to charge abortionists rather than women seeking terminations, whose situation is likely to evoke greater sympathy at all stages of the judicial process. Yet what happens when an abortion provider is based in a different country? Finally, the online provision of medical abortion drugs raise further challenges, posing public health concerns around abortion in a more modern frame: in sourcing drugs from an unknown, online supplier, women are clearly risking their health. Yet what responsibility, if any, does a state have to help them guard against such risks when the drugs are sought with the intention of subverting existing domestic law?

A detailed analysis of the extent to which the widespread availability of medical abortion (MA) may impact on existing models of service provision and the adequacy of existing regulatory frameworks should be of signficant interest to a range of non-academic research users, including:

1) State actors

A range of government actors should be interested in the findings of this project, including those within Parliament, who have responsibility for ensuring appropriate regulation of this area; courts charged with interpreting such regulation (who may face difficult questions regarding how MA fits within existing statutory language), and the designated abortion team within the Department of Health charged with ensuring the law's effective functioning. If, as appears to be the case, women in Ireland and Northern Ireland (and, to a lesser extent, other parts of the UK), are procuring their own terminations using drugs obtained on line, then this raises pressing issues of public health (requiring a close analysis of appropriate responses). As the first sustained analysis of these questions in any jurisdiction, the project should provide a vital resource for these actors, who will be invited to the launch event and sent the research summary.

2) Abortion service providers

Service providers must work within existing law, yet best clinical practice in provision of MA services does not sit comfortably within current law (as demonstrated in the bpas case, see Case for Support). Further, MA raises broader questions regarding traditional service provision models and, particularly, the extent of the need for medical supervision of abortion. While some clinical aspects of these questions are considered in the medical literature, the ethical implications (of e.g. shifting models of the doctor/patient relationship, particularly when drugs are obtained online; and the radical emphasis on patient autonomy involved in some provision models) are not. This project will thus provide a vital new resource for these groups. This audience will be particularly targeted by in house seminars and a publication in the e-newsletter, Abortion Review, which is widely read by service providers, policy-makers and interested academics in the UK.

3) Reproductive health NGOs

Unsafe abortion is a major cause of maternal mortality and MA has attracted a lot of interest as a potential solution. However, as noted earlier, this consideration has tended to focus exclusively on clinical and practical issues, ignoring the legal and ethical dimensions, which will also be of interest to this group. A short paper submitted to the international, policy focused journal, Reproductive Health Matters, will reach this audience.

4) The general public

Strong popular interest is invariably aroused by discussion of any aspect of abortion and this interest should make it easy to gain popular media dissemination for this research. Relevant Radio 4 programmes will be approached with a view to securing interviews (e.g. Woman's Hour; Thinking Allowed) and, in the PI's experience, invitations to speak on local BBC radio and the world service should follow from these appearances. Further, in order to make the research more widely accessible, at least one article will be written for a broadsheet newspaper (e.g. Guardian news section, Society or Family supplement) and a short piece will be written for the website, ProChoice Forum, which attracts a wide audience, including school children writing projects on abortion.


In addition to the specific dissemination strategies targeting each of the groups noted above, a project website, summary of research findings (available online and in hard copy), and launch event in central London will each help to ensure that findings reach each of these key groups. In addition to key research beneficiaries noted above, journalists will also be invited to the launch event, thus helping with wider dissemination of findings