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18 June 2015

The regulatory cliff edge between contraception and abortion

Professor Sally Sheldon discusses the legal and moral significance of implantation.

We tend to talk about contraception and abortion as if they were two separate and readily distinguishable practices, the former preventing pregnancy and the latter ending it. This understanding has a very important effect in current British law, where a relatively permissive approach to the availability of contraception stands in stark contrast to the morally grounded, onerous criminal sanctions against abortion. Yet is the distinction between abortion and contraception really so clear cut? How and why do we make it? And is the line that we have drawn between the two morally defensible?

As a matter of biological fact, the development of human life is not characterised by bright lines. As the eminent lawyer Glanville Williams once put it ‘abstract human life does not “begin”; it just keeps going.’ A seamless biological continuum exists through the production of sperm and egg, their joining together in a process of fertilisation, the gradual development of the new entity thus created throughout pregnancy, birth, subsequent growth, eventual death and ensuing decay of the body. Defining what happens along the way as an ‘embryo’, ‘fetus’, ‘person’, ‘adult’, or ‘corpse’ requires an attempt to draw lines on the basis of criteria selected as holding significance for legal or other purposes.  How and where we draw such lines is a tricky business, involving careful moral reflection informed by medical fact. 

The ‘regulatory cliff edge’ between the relatively permissive regulation of contraception and the criminal prohibition of abortion relies on a line drawn on the basis of the biological event of implantation, where the fertilised egg physically attaches itself to the wall of the womb some six to twelve days after ovulation. Yet while enormous legal weight has been placed upon it, little consideration seems to have been given as to why implantation matters morally.  The voluminous philosophical literature on the ethical status of the human embryo and fetus offers little support for the view that implantation is an important marker. 

Further, while it might once have been suggested that implantation offers a conveniently timed moment for a necessary gear change between the appropriate regulation of contraception and abortion, this argument is difficult to sustain in the light of modern medical science. Notably, the development of new ‘contragestive’ techniques that operate around or shortly after the moment of implantation serves to muddy any clear water that might have once have been believed to lie between contraceptives and abortifacients. For example, researchers have raised the possibility of developing 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. Such drugs might potentially act either before or after implantation. A further possibility might be to limit the use of drugs to a few times a year, when a woman’s menstrual period is late.

While significant work remains to be done in establishing the clinical safety, efficacy and acceptability of such treatments, there are good clinical reasons to pursue this work. However, such research would be blocked by current UK law. Where drugs potentially operate after implantation, offering or using them would be likely to constitute a serious criminal offence and, if such drugs could be offered at all, they would fall within the strict requirements of our abortion law. The potential convenience and simplicity of a regimen where women could have drugs in their bathroom cabinet, ready to be used when necessary would be lost. 

It might be suggested, of course, that this is all for the good: that terminating even a very early pregnancy should be treated as a morally serious matter and one that is rightly subject to strict control. However, an issue of this significance to women’s reproductive health should be decided on the basis of democratic debate, informed by current medical understandings of reproductive biology and careful reflection on the moral significance of implantation in the process of embryonic and fetal development. The current legal basis for distinguishing between contraception and abortion falls woefully short of meeting this test. Rather it is a consequence of a statutory phrase, prohibiting the ‘unlawful procurement of miscarriage’, contained in the Offences Against the Person Act (1861). 

An archaic law, passed by a mid-Victorian Parliament within which women had no voice, is an indefensible basis for the regulation of health services that matter so intimately to modern women. That it should potentially operate, some one hundred and fifty years after its passage, to block the development and use of safe, effective, modern forms of fertility control provides a compelling argument for a fundamental review of this aspect of its operation. There are strong reproductive health arguments in favour of facilitating access to safe, effective technologies that operate at early gestational ages. As such, within any such review, the onus should be on those who support the use of criminal sanction to justify its deployment in this context and, specifically, to explain why it offers an appropriate response at such an early stage of pregnancy. 

Access Professor Sheldon’s full paper, in in the Journal of Medical Ethics, here.

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