“(a) is likely to present a direct or indirect danger to human health, even when used correctly, if used without the supervision of a doctor or dentist; or (b) is frequently and to a very wide extent used incorrectly, and as a result is likely to present a direct or indirect danger to human health; or (c) contains substances or preparations of substances of which the activity requires, or the side effects require, further investigation; or (d) is normally prescribed by a doctor or dentist for parental administration.”
“Although historically this country is part of the Christian west, and although it has an established church which is Christian, I sit as a secular judge serving a multi-cultural community of many faiths in which all of us can now take pride, sworn to do justice ‘to all manner of people’. Religion – whatever the particular believer’s faith – is no doubt something to be encouraged but it is not the business of government or of the secular courts. So the starting point of the law is an essentially agnostic view of religious beliefs and a tolerant indulgence to religious and cultural diversity. A secular judge must be wary of straying across the well-recognised divide between church and state. It is not for a judge to weigh one religion against another. All are entitled to equal respect, whether in times of peace or, as at present, amidst the clash of arms.”
“My Lords, at a time when more and more cases involve the application of legislation which gives effect to policies that are the subject of bitter public and parliamentary controversy, it cannot be too strongly emphasised that the British constitution, though largely unwritten, is firmly based upon the separation of powers; Parliament makes the laws, the judiciary interpret them. When Parliament legislates to remedy what the majority of its members at the time perceive to be a defect or a lacuna in the existing law (whether it be the written law enacted by existing statutes or the unwritten common law as it has been expounded by the judges in decided cases), the role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was, and to giving effect to it. Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral. In controversial matters such as are involved in industrial relations there is room for differences of opinion as to what is expedient, what is just and what is morally justifiable. Under our constitution it is Parliament's opinion on these matters that is paramount. A statute passed to remedy what is perceived by Parliament to be a defect in the existing law may in actual operation turn out to have injurious consequences that Parliament did not anticipate at the time the statute was passed; if it had, it would have made some provision in the Act in order to prevent them. … But if this be the case it is for Parliament, not for the judiciary, to decide whether any changes should be made to the law as stated in the Acts … It endangers continued public confidence in the political impartiality of the judiciary, which is essential to the continuance of the rule of law, if judges, under the guise of interpretation, provide their own preferred amendments to statutes which experience of their operation has shown to have had consequences that members of the court before whom the matter comes consider to be injurious to the public interest.”
“Emergency contraception is safe, simple and effective. Abortion is both medically and psychologically invasive.”
“If one strikes a pregnant woman (mulierem praegnantem) or gives her poison in order to procure an abortion (abortivum), if the foetus is already formed or quickened, especially if it is quickened (iam formatum vel animatum fuerit, et maxime si animatum), he commits homicide.”
“If a woman be quick with childe, and by a potion or otherwise killeth it in her wombe; or if a man beat here, whereby the child dieth in her body, and she is delivered of a dead child, this is a great misprision, and no murder.”
“And herein the law is grounded upon the law of God.”
“Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. For if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the antient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemesnor.”
“did … unlawfully … give and administer … to [the woman], ... being big and pregnant with child … divers other … dangerous … pills … with a wicked intent to cause and procure [the woman] to miscarry …”
“By the present Law, this offence is divided into two classes: the capital offence being where the woman shall be quick with child . Having taken away the capital punishment, we have omitted this distinction, which we consider will be advantageous as removing a difficulty in evidence, and as obviating the necessity of discussing a question respecting which considerable doubt must always exist.”
“This term quickening, which it would be impossible to abolish too soon, is a relic of theo-physiology, absurd and groundless in itself, but upon which laws have been based that remain to the present day, to the disgrace of our jurisprudence. The imaginary quickening, marks the period when our ancestors believed the foetus to become endued with life and soul. Women, therefore, who were quick with child, and convicted of capital crimes, were respited until after delivery. We now know that such a special commencement of human and immortal life has no foundation, and modern laws make it a punishable crime to procure abortion, and destroy the ovum at any time; but the ancient laws which sanction the execution of a pregnant woman, and her child with her, before the period of quickening, with their attendant absurdity of a jury of matrons, still survive.” – So, indeed, they did, at least in theory, until 1965 – “The law is therefore in this anomalous position: in one case, it punishes as a crime the destruction of the ovum in the early months; in the other, the Law itself ruthlessly commits this crime.”
“[W]hosoever, with intent to procure the miscarriage of any woman, whether she be or not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony”
“For the purposes of the law relating to abortion, anything done with intent to procure a woman’s miscarriage (or, in the case of a woman carrying more than one foetus, her miscarriage of any foetus) is unlawfully done unless authorised by section 1 of this Act…”
“For the purposes of the law relating to abortion, anything done with intent to procure the miscarriage of a woman is unlawfully done unless authorised by section 1 of this Act.”
“sections 58 and 59 of the Offences against thePerson Act 1861 , and any rule of law relating to the procurement of abortion.”
“Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith – (a) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated; or (b) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.”
“Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith – (a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or (b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or (c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or (d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.”
“any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother … Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother.”
“a woman who carries a child in pursuance of an arrangement – (a) made before she began to carry the child, and (b) made with a view to any child carried in pursuance of it being handed over to, and parental responsibility being met (so far as practicable) by, another person or other persons.”
“An arrangement is a surrogacy arrangement if, were a woman to whom the arrangement relates to carry a child in pursuance of it, she would be a surrogate mother.”
“A woman who carries a child is to be treated for the purposes of subsection (2)(a) above as beginning to carry it at the time of the insemination or of the placing in her of an embryo, of an egg in the process of fertilisation or of sperm and eggs, as the case may be, that results in her carrying the child.”
“No person shall – (a) bring about the creation of an embryo, or (b) keep or use an embryo, except in pursuance of a license.”
“For the purposes of subsection (3)(a) above, the primitive streak is to be taken to have appeared in an embryo not later then the end of the period of 14 days beginning with the day when the gametes are mixed, not counting any time during which the embryo is stored.”
“In this Act, except where otherwise stated – (a) embryo means a live human embryo where fertilisation is complete, and (b) references to an embryo include an egg in the process of fertilisation, and, for this purpose, fertilisation is not complete until the appearance of a two cell zygote.”
“This Act, so far as it governs bringing about the creation of an embryo, applies only to bringing about the creation of an embryo outside the human body; and in this Act – (a) references to embryos the creation of which was brought about in vitro (in their application to those where fertilisation is complete) are to those where fertilisation began outside the human body whether or not it was completed there, and (b) references to embryos taken from a woman do not include embryos whose creation was brought about in vitro .”
“For the purposes of this Act, a woman is not to be treated as carrying a child until the embryo has become implanted.”
“The woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child.”
“Subsection (1) above does not apply to any child to the extent that the child is treated by virtue of adoption as not being the child of any person other than the adopter or adopters.”
“An embryo taken from a woman must not be used for any purpose unless there is an effective consent by her to the use of the embryo for that purpose and it is used in accordance with the consent.”
“An embryo taken from a woman must not be received by any person for use for any purpose unless there is an effective consent by her to the use of the embryo for that purpose.”
“asked by Schering Health Care Limited to provide an account of the meanings I ascribe to terms in everyday use in gynaecological practice today. The meaning of some terms has altered slightly during the thirty years that I have been practising medicine. There are two reasons for this. One is that knowledge has increased among both doctors and the public as a result of medical advances – in particular the introduction of IVF, the development of highly sensitive pregnancy tests and the refinement of ultrasound imaging, all of which occurred during the 1980s. The other reason is a growing sensitivity among doctors to the implications that medical language has for patients.”
“The meaning of the word “pregnancy” has not changed in relation to the later stages of gestation, but I consider that its meaning has changed in relation to the earliest stages. In the past, pregnancy was suspected when a woman missed her period and was confirmed by uterine enlargement, found on abdominal or pelvic examination. Nowadays, pregnancy is confirmed by a positive pregnancy test, which can be carried out on either urine or blood. It tests for HCG (human chorionic gonadotrophin), a hormone produced by the placenta or the cells destined to form the placenta. A pregnancy does not necessarily require the presence of an embryo or fetus. For example, a common complication of early pregnancy is an “anembryonic pregnancy”, in which the pregnancy test is positive, the woman feels pregnant and the placental tissue is developing, but embryonic development has failed at a very early stage. Such a pregnancy can continue for two or three months before ending in miscarriage. Nor does a pregnancy have to be in the uterus: an “ectopic pregnancy” develops outside the uterus, commonly in the fallopian tube. Initially it may include a live embryo but the pregnancy almost always fails, usually around the second month. Bearing all these factors in mind, in my experience neither doctors nor women normally consider that a pregnancy has begun until the pregnancy test is positive, even when (as in IVF) an embryo has been placed inside the uterus. The pregnancy test does not become positive until HCG can be detected, usually around the time of the missed menstrual period.”
“In my view pregnancy begins when the pregnancy test is positive, some ten to fourteen days after conception. My reasons relate to the large numbers of fertilised oocytes which are believed to be lost during the normal menstrual cycle. I do not believe these can be described as “pregnancies”
“ “Miscarriage” means the loss of a clinically recognised pregnancy. Since a pregnancy cannot be recognised until HCG can be detected, and HCG is not produced until implantation has been initiated, a miscarriage will not occur prior to implantation. As I have explained above, a clinically recognised pregnancy generally means that at least one menstrual period has been missed. Rarely nowadays a pregnancy test may be positive before a period is missed and if the period occurs a few days late it may be considered to be a very early miscarriage, but this applies to only a small number of cases. From various strands of evidence it has been calculated that in a normally cycling woman who is sexually active and not using contraception, conception will occur in about 85% of cycles. Of those fertilised eggs, around 15% will be lost before implantation begins. Of those which begin to implant, only about half will implant successfully. Of the half which do implant successfully (as shown by detectable HCG in the woman’s urine), between one third and one half will be lost at the time of the menses. Overall, therefore, around 75% of all conceptions are followed by an apparently normal period. These losses of fertilised eggs, whether before or after implantation in a cycle ending with normal menstruation, do not involve a clinically recognised pregnancy and are not covered by the term “miscarriage”.”
“I have been involved in providing contraceptive services and termination of pregnancy services for almost thirty years. I have thought a great deal about the implications of my actions. I have discussed them with students, written about them in medical and lay publications (including the correspondence column of The Times) and debated them in the context of ethics courses and religious discussions. I have been fully aware of my duty to comply with the 1967 Abortion Act: almost every week for 29 years I have filled in the Abortion Act forms as part of my work in the termination service. I take these duties very seriously because I am conscious of my moral duty as a doctor and a teacher, and because I am aware that any lapse from the requirements of the Act could render me liable to prosecution. I have never at any time felt that the provisions of the Act referred to the prescribing of Levonelle, or the insertion of an intrauterine contraceptive device, or the prescribing of a progesterone-only pill. Although I carry out abortions, I have never felt that prescribing PC4 or Levonelle, or fitting a coil or prescribing a progesterone-only pill is procuring an abortion. Some of my colleagues do not carry out abortions because of their deeply-held views, but they are happy to prescribe PC4 or fit an IUCD or prescribe progestogen-only contraception. I do not know of any gynaecologist who feels that these contraceptive methods are procuring abortions. Indeed, colleagues who oppose abortion are – like me – keen to prescribe these contraceptives in order to reduce the need for abortion. Even though abortion is now safe in this country, it is distressing for all concerned – women and doctors. Levonelle is highly regarded because it reduces the number of cases in which a woman needs to consider abortion.”
“so far as the current thinking of the medical profession is concerned the use of the word “miscarriage” relates to the spontaneous loss of an established pregnancy and not the result of anything done to interfere with the processes of fertilization or implantation.”
“I consider that dating “the start of life” from a particular point in time is not helpful in a clinical sense or indeed possible in a scientific sense. I agree with those who have pointed out that DNA (the self-replicating molecule within the chromosomes) is immortal. It perpetuates itself endlessly, sometimes in the cells of the human body and sometimes in the sperm or the eggs. This continuum is uninterrupted, except if an individual dies childless.”
“Miscarriage is synonymous, in a legal sense, with the word abortion, the fetus being regarded as a human life to be protected by the criminal law from the moment of fertilisation.”
“Part of that research involved a specific study of the question whether section 58 of the Offences against thePerson Act 1861 prohibits, by its use of the word ‘miscarriage’, attempts to prevent the implantation of any fertilised egg which may be present. To ascertain the meaning of the word ‘miscarriage’ in the nineteenth century I carried out a survey believed to include all major obstetrical texts published in England between 1788 and 1910. The study concluded that ‘miscarriage’ was understood in 1861 by medical and medico-legal authorities to include a failure to implant and that, applying the ordinary meaning of the word at the time the statute was enacted, section 58 was intended to prohibit attempts to procure abortion from conception (fertilisation). The above texts were unanimous in either supporting or not contradicting this conclusion. The study was published as “Miscarriage”: A Medico-Legal Analysis in [1984] Crim LR 604. Nothing I have read since then inclines me to retract anything in the article.”
“a miscarriage occurs not infrequently within three weeks after impregnation, or before the ovum has descended into the uterus … In later stages of pregnancy, abortion consists of two parts or stages; the separation of the ovum from the fundus of the womb, and its expulsion from the mouth.”
“Abortion, or miscarriage, implies the premature expulsion of the contents of the impregnated Uterus. This misfortune may take place at any intermediate time between the act of impregnation, and the completion of the common term of pregnancy: but either of the preceding words is more generally applied to that occurrence in the early stages of gestation. The expulsion of the uterine contents after the seventh month of pregnancy, may be more properly termed “premature labour.”
“The usual period of utero-gestation is nine months, but the foetus may be expelled much earlier. If the expulsion take place within three months of the natural term, the woman is said to have a premature labour; if before that time, she is said to miscarry, or have an abortion. The process of abortion, consists of two parts, detachment and expulsion; but these do not always bear an uniform relation to each other, in their duration or severity. The first, is productive of haemorrhage, the second of pain; for the one is attended with rupture of vessels, the other with contraction of the muscular fibres … The symptoms then of abortion, must be those produced by separation of the ovum, and contraction of the uterus.”
“By abortion or miscarriage, is meant the premature expulsion of the contents of the gravid womb, before the term of gestation is completed. … The process of abortion consists of two parts – the separation of the ovum from its uterine attachment, and its expulsion from the uterine cavity.”
“Strictly speaking, Abortion may take place at any moment subsequent to conception.”
“the evidence of the medical and medico-literature of the nineteenth century indicates that ‘miscarriage’ was generally understood to include the prevention of implantation.”
“The conviction of Bradlaugh proceeded on the ground that his book describing and recommending methods of birth control was an obscene libel. The obscenity was simply in describing and recommending such methods of control.”
“I am sorry to say that there is another ground, which I should be glad to avoid dealing with if I could. Another accusation against Mrs Besant is this: It is said that in addition to these opinions on the questions as to the existence of a Deity and other speculative subjects, Mrs Besant has been guilty of immoral conduct in publishing an immoral or obscene book, or rather pamphlet. Now, I am sorry to say that on my attention being directed to some of the pages of this pamphlet I can entertain no doubt whatever as to its being an obscene publication. My view is exactly the same as was entertained by the Lord chief Justice of England and a jury on the occasion of the trial of Mr Bradlaugh and Mrs Besant for the publication of this book, at which trial they were convicted. And although that conviction has been set aside on a technical point, a flaw in the indictment, no Judge, so far as I am aware, has for a moment doubted the propriety of that conviction. Besides that, it has also been condemned by a magistrate to be destroyed, and that decision has been confirmed by a Court of Quarter Sessions, a number of magistrates being assembled there. I think my view of the book is, if I may say so, fully confirmed and borne out by these previous decisions; although, even if I entertained a less strong opinion than I do, I ought not to hesitate to express that opinion. Well, now, what is the result? The result of it is that Mrs Besant’s character is to be judged not only by the publication of the book, but by the conviction following from that publication, and one cannot expect modest women to associate with her. She may be a most conscientious person – that is to say, she may believe that all she has done was done by her for the purpose of doing good. I am not unwilling to admit that, and to credit her with good intentions, but if she has adopted a course which is reprobated by a vast majority of mankind, and in fact by the criminal law of this country, I do not think I should be right in saying that it would be beneficial for any young girl to be brought up by such a woman, and I think I should be guilty of a dereliction of duty if I allowed a young girl to be so brought up and educated in that way.”
“We have it before us that the Appellant was found guilty by a jury of publishing a work stigmatized by them as being calculated to deprave public morals, and that she, in spite of that finding, determined to persist, and did persist, in publishing that work. That the jury were right in their finding the Judges of the Court of Queen’s Bench had no doubt, and we are constrained to say that we entirely concur. The other works charged are substantially of the same character. It is impossible for us not to feel that the conduct of the Appellant in writing and publishing such works is so repugnant, so abhorrent to the feelings of the great majority of decent Englishmen and Englishwomen, and would be regarded by them with such disgust, not as matters of opinion, but as violations of morality, decency, and womanly propriety, that the future of a girl brought up in association with such a propaganda would be incalculably prejudiced. The Appellant contends that these are unfounded and unwarranted antipathies and prejudices, like those with which rival sects were wont to regard one another. But the Court cannot allow its ward to run the risk of being brought up, or growing up, in opposition to the views of mankind generally as to what is moral, what is decent, what is womanly or proper, merely because her mother differs from those views and hopes that by the efforts of herself and her fellow-propagandists the world will be some day converted. If the ward were allowed to remain with the mother, it is possible, and, perhaps, not improbable, that she would grow up to be the writer and publisher of such works as those before us. From such a possible future the Master of the Rolls thought it his duty to protect her, and we have no hesitation in saying that we entirely concur with him.”
“It cannot be assumed that a court would hold a book to be obscene merely because it deals with the subject referred to.”
“[T]here remain two sentences of the libel which were relied on as expressions of opinion and libellous. The first was contained in the words “the ordinary decent instincts of the poor are against these practices.”
“The work for the publication of which Bradlaugh was sentenced was, as I have pointed out, confined to the inculcation of methods of birth control. The plaintiff has done what Bradlaugh did, but she has done something more. We were referred in the course of the argument to certain passages in the books published by the plaintiff of such a nature that they were not read aloud. These books have a very large circulation, and for my part I cannot doubt that they are calculated to have a most deplorable effect upon the young of both sexes. It would be absurd to say that the epithet “monstrous” as applied to such a “campaign” passes the bounds of fair criticism, or that it was not fair comment to use language implying that such passages as those to which I have referred aggravate the criminality of the obscene libel.”
“[Counsel] said that it was a matter of common knowledge that young people, for a period, at any rate, after their marriage had intercourse only with the intervention of contraceptives. On this part of his common knowledge I can only offer him my sympathy. It is no part of my common knowledge and I decline to accept it as a matter of common knowledge at all.”
“Long before the passing of theMatrimonial Causes Act 1937 , it was a matter of common knowledge that reputable clinics had come into existence for the purpose of advising spouses on what is popularly called birth control, and (with all respect to a dictum to the opposite effect by the late Langton J in the unreported case of Firth v Firth ) it is also a matter of common knowledge that many young married couples agree to take contraceptive precautions in the early days of married life.”
“Control by men and women over the numbers of their children is one of the first conditions of their own and the community’s welfare, and in our view mechanical and chemical methods of contraception have to be accepted as part of the modern means, however imperfect, by which it can be exercised.”
“Acknowledging the uncertainties in this area, the research evidence indicates that contemporary non-barrier contraceptives act at one or more of the currently identified key stages of the early reproductive process, ovulation, sperm migration, fertilisation and embryo implantation into the endometrium. Several commentators have argued that there is little evidence that current contraceptive methods work after fertilisation. However extensive clinical research shows their profound effects on the endometrium. It is therefore plausible that non-barrier contraceptives may act at the level of the pre-implantation pre-embryo, the endometrium or the implantation process.”
“Contraceptives providing synthetic hormones can act to disrupt endometrial development. Intra-uterine contraceptives provoke an inflammatory reaction in the endometrium and uterine cavity which may prevent either fertilisation or implantation.”
“if considering an interference with a fertilised ovum before nidation, the Courts would have to decide whether or not the interference constituted the procuring of a miscarriage. As ‘miscarriage’ is not defined in the 1861 Act the question would be resolved by the Court after medical evidence had been given. The legal questions, therefore, remain open so far as the prevention of the development of the fertilised ovum before nidation or the prevention of nidation are concerned.”
“Recent advances in the control of fertility emphasize the arbitrary nature of the line between contraception and abortion. For example, success has recently been achieved with IUCDs (intra-uterine contraceptive devices) for the purpose of birth control, but it is still not known whether their effect is contraceptive (by preventing the fusion of the male and female cells) or abortifacient (by preventing the fertilized ovum from lodging in the womb). I find it hard to believe that those who accept chemical and mechanical methods of birth control will attach importance to the question whether the device operates just before the fusion of the two cells or just after. It is a totally unrealistic point on which to hinge a discussion. No one really believes that detaching the fertilized ovum is equivalent to the murder of a human being.”
“The question arises whether use of such devices is a method of contraception or of abortion.”
“The ‘morning after’ pill could be open to the objection that it is a form of abortion which destroys human life. Whether this is so will depend upon whether human life is considered to begin when the egg is fertilised or only when it becomes implanted in the wall of the womb and begins to develop into an embryo.”
“A contraceptive is a medicinal substance or device which prevents fertilisation of the egg by the male sperm. Obvious examples of this are the so-called ‘pill’ or barrier methods such as condoms. These prevent by chemical or physical means fertilisation. Other methods may not prevent fertilisation but act in such a way that the fertilised egg, if any, does not implant in the woman’s uterus. Examples of these are post-coital methods like the so-called ‘morning after pill’ or intra-uterine devices (IUDs) whether fitted post-coitally or not. In these situations it is better to term the methods as contragestive rather than contraceptive since they act only to prevent gestation. Further complications may arise … in that the agents may act not to prevent gestation but to end it. In other words, after the developing embryo has implanted they effect its expulsion from the woman’s uterus. Are any of these properly subject to the legal regulatory regime for terminations or abortion? The answer depends principally upon one issue: do they effect a ‘miscarriage’ so as to fall within the criminal prohibition in the 1861 Act?”
“Its mission is to enable people in the UK to make informed choices about sex and to enjoy sexual health free from exploitation, oppression and harm.”
“Emergency contraception, including Levonelle, is a safe and effective method of preventing unintended pregnancy. It is unique in the area of family planning in that it is the only method that can be used to prevent pregnancy after unprotected sex or a contraceptive failure. Provision of emergency contraception and expanding access to emergency contraception has the potential to significantly reduce the numbers of unintended and unwanted pregnancy [sic] and as such reduces the need for abortion. Research demonstrates that in those countries which have good contraceptive services and provide good availability of emergency contraception as ‘back-up’, abortion rates are low.”
“Evidence from prescriptions dispensed in England in 2000 shows that there is a very high demand for emergency contraception. The Department of Health statistics show that in 2000 there were 273,900 prescriptions for Levonelle, and 280,900 for Schering PC4.” “The importance of emergency contraception is further illustrated by the following statistics. It is estimated that about half of the pregnancies in the UK are unplanned. About 22% of all pregnancies end in induced abortion. About three quarters of women having an abortion were using some form of contraception when they conceived. Research shows that most women requesting an abortion would have used emergency contraception if they had known what it was, where to get it and the time limits for its use. This research also shows that most of these women would have preferred to have used emergency contraception rather than having an unplanned pregnancy.”
“Demand for improved and wider accessibility of emergency contraception is well documented in the research literature. Demonstrated need for improved access and availability is shown by the increase in demand for emergency contraception at weekends and public holidays, a time when primary care services (GP, family planning clinic) are not always available.”
“It is very difficult to produce direct evidence that if emergency contraception ceases to be available, or becomes more difficult to obtain, then the number of abortions will rise. However, in my view it is overwhelmingly likely that this will be the case. It follows from the large numbers of women who use emergency contraception at the present time, that the numbers of unintended pregnancies will increase. Emergency contraception has the potential to reduce the need for abortion.”
“On a wholly practical level, abortion care involves numerous health professionals and a far greater cost to the public purse than does the use of emergency contraception.”
“All women using [emergency contraception] are women making responsible choices and should be supported in this choice. … In the view of fpa, there are overwhelmingly strong reasons why it is better to provide emergency contraception than to put more women in a position where they may need to seek an abortion. … It is fpa’s view that it is vitally important that Levonelle, or other similar products should be available from pharmacists … emergency contraception is vital area of family planning and is currently an under-utilised part of the contraceptive repertoire. Wider provision and access could contribute to a reduction in unintended and unwanted pregnancy.”
“The term miscarriage is not defined in the Penal Code. In its popular sense it is synonymous with abortion, and consists in the expulsion of the embryo or foetus, ie., the immature product of conception. The stage to which pregnancy has advanced and the form which the ovum or embryo may have assumed are immaterial. Section 312 requires proof that the woman is “with child,” but it is enough if the fact of pregnancy and the intentional expulsion of the immature contents of the uterus are established. The words “with child” mean pregnant, and it is not necessary to show that “quickening”, ie., perception by the mother of the movements of the foetus has taken place or that the embryo has assumed a foetal form.”
“The essential issue for the jury was, did the defendant at the time that he inserted the Gynekoil with the insertion tube know or believe that [she] was pregnant and accordingly introduce the instrument with intent to produce a miscarriage, or did he, as it was his case for the defence, think that she was not pregnant and introduce it for the purpose of allaying anxieties on her behalf as regards the future.”
“By ‘pregnant’ it is reasonably clear that Sachs LJ had in mind a woman’s condition ‘post-implantation’.”
“Now, if one is to assume that Price, as a doctor qualified in and familiar with the use of the Gynekoil, knew how it worked – and if one also assumes that the prosecutor and the Court of Appeal knew how it worked – the direction to the jury is interesting: the only way in which the coil can ever work is to impede a blastocyst from implanting in the endometrium. If Price intended this, did he not, by intending that a nidation be prevented, either then or later, necessarily intend to induce abortion? Clearly both the Assize Court and the Court of Appeal thought not. Price is therefore the only authority on the point in English law – that there is a “no-man’s-land” when it is too late for contraception but too early for abortion. During this period, there is no prohibition on embryo arrest.”
“the very concept of embryo arrest seems to have been overlooked, except (impliedly) by the Court of Appeal in Price .”
“Sections 58 and 59 of theOffences Against the Person Act 1861 protected and protect the foetus in the womb and having regard to the omission of the words “Quick with child” which were contained in the statute of 1803 … that protection dates from conception. Consequently, the right to life of the foetus, the unborn, is afforded statutory protection from the date of its conception.”
“Both doctors agree that so far as the current thinking of the medical profession is concerned the use of the word “miscarriage” relates to the spontaneous loss of an established pregnancy and not the result of anything done to interfere with the processes of fertilization or implantation.”
“Both doctors agree that in the proper use of modern medical terminology the function of both the pill and the coil in such circumstances is contraceptive, and not abortifacient. To put it in layman’s terms, the use of pill or coil in such circumstances is to prevent a pregnancy commencing, and not to displace an established pregnancy.”
“The essential question for the jury is … whether the defendant, at the time he inserted the coil, knew or believed that Miss Fortey was pregnant, and, accordingly, introduced the instrument with intent to procure a miscarriage, or whether, as is the case for the defence, that he knew or believed that she was not pregnant, in the true sense of the word, and that his purpose in inserting the coil was for contraceptive purposes; in other words, to prevent her from becoming pregnant thereafter.”
“In the light of the evidence as it presently stands, therefore, the uncontradicted position seems to be this: when the defendant fitted Miss Fortey with a coil on the 27 th of September 1988, it is improbable that any ovum that had just been, or was about to be, released from her ovary was fertilized or likely to become so. However that may be, it would be contrary to all the available medical evidence, and highly unlikely, that any fertilized ovum present in her body had even begun the implantation process, let alone become established. On the evidence that I have heard, that stage can only be said with certainty to have occurred when the next menstrual period is delayed, or by day 20 of the standard 28-day cycle at the earliest. The generally accepted medical practice in the use of the coil as a post-coital contraceptive device is that it may properly be introduced at any time up to the 20 th day. I was informed by [one of the medical experts] that the use of the coil in this way is described with approval in the handbook of contraceptive practice published by the Department of Health. Further, as I have previously indicated, the best medical opinion is that the operation of the coil in these circumstances is to prevent pregnancy from becoming established, and not to terminate an existing pregnancy.”
“On that factual basis, what is the position in law? It turns, as it seems to me, upon the true construction in section 58 of the word “miscarriage”
“the untimely delivery of a pregnant woman, abortion,” and, in the medical context: “the delivery of a probably non-viable foetus in the 12 th to 28 th week of pregnancy.”
“to be delivered prematurely of a child.”
“spontaneous expulsion of the product of pregnancy before the middle of the second trimester.”
“the separation and expulsion of the contents of the pregnant uterus.”
“It is clear that, used in its ordinary sense, the word miscarriage is not apt to describe a failure to implant, whether spontaneous or not. Likewise, the phrase ‘procure a miscarriage’ cannot be construed to include prevention of implantation. Whatever the state of medical knowledge in the 19 th century, the ordinary use of the word ‘miscarriage’ related to interference at a stage of pre-natal development later than implantation.”
“English law ... regards any interference with pregnancy, however early it may take place, as criminal, unless for therapeutic reasons. The foetus is a human life to be protected by the Criminal Law from the moment when the ovum is fertilized." However, this view, and similar views adopted by other academic writers, appears to be based upon the understanding that the process of preventing a fertilized ovum from lodging in the womb is abortifacient in nature. The evidence before me is that that is not the way in which modern, accepted medical opinion regards it. Furthermore, Professor Williams has much more recently, in the second edition of his textbook of ‘Criminal Law’ (1983), departed from his previously expressed view, and states that there is no reason why a restricted construction of “miscarriage” should not be adopted by a court; that is plainly right. As I have already indicated, there is no binding, or even persuasive authority, in favour of either interpretation. Further still, and finally, as this is a Criminal Statute, if there are two otherwise equally acceptable constructions of this particular section, I am satisfied that I should adopt that which is more favourable to the defendant. I have come to the conclusion that I should adopt the narrower interpretation of this part of section 58, and hold that the word “miscarriage” in this context relates to the spontaneous expulsion of the products of pregnancy. I further hold, in accordance with the uncontroverted evidence that I have heard, that a pregnancy cannot come into existence until the fertilized ovum has become implanted in the womb, and that that stage is not reached until, at the earliest, the 20 th day of a normal 28-day cycle, and, in all probability, until the next period is missed. It follows from this – and I so hold – that the insertion of an intra-uterine contraceptive device before a pregnancy has become established, with the intention of preventing the successful implantation in the uterine wall of any fertilized ovum that may result from a prior act of sexual intercourse, does not amount to an offence undersection 58 of the Offences Against the Person Act 1861 . It further follows that when the present defendant inserted an IUCD on the 17 th day of the complainant’s cycle, that that action was not capable of procuring a miscarriage within the meaning of the section.”
“an embryo is in reality a separate organism from the mother from the moment of its conception .”
“At present both English law and the law of the great majority of the United States regard any interference with pregnancy, however early it may take place, as criminal, unless for therapeutic reasons. The foetus is a human life to be protected by the criminal law from the moment when the ovum is fertilized.”
“Formerly it was thought that the vital point of time was fertilisation, the fusion of spermatozoon and ovum, but it is now realised (although the point has not come before the courts) that this position is not maintainable, and that conception for legal purposes must be dated at earliest from implantation. The legislation is unspecific. The abortion section does not expressly refer to conception; it speaks merely of a “miscarriage.”
“no one who uses or fits IUDs supposes that they are illegal or are governed by the Abortion Act. The only way to uphold the legality of present medical practice, to make IUDs contraceptives and not abortifacients, is to say that for legal purposes conception is not complete until implantation. … The legal argument is that the word “miscarriage” in the abortion section means the miscarriage of an implanted blastocyst.”
“In the ordinary use of language, we do not think of a fertilised egg as a ‘child’. Nor would we think of a woman as ‘pregnant’ until implantation has taken place … you cannot procure a miscarriage until you have a carriage, and you would not ordinarily use the notion of ‘carrying’ a child until it was implanted in the womb.”
“The use of IUDs as a regular form of contraception has become so widespread that its lawfulness cannot seriously be disputed. If the law allows the use of IUDs as contraception in ordinary circumstances, then to be consistent, it must allow the use of IUDs and the other procedures in the context of postcoital birth control, because the effect is the same in all cases, the prevention of a fertilized egg being implanted in the womb.”
“It is clear that a purely contraceptive agent does not produce a ‘miscarriage’. A failure to fertilise cannot properly be considered a ‘miscarriage’. By contrast it is widely accepted that if the effect is to cause an implanted embryo to be expelled from the mother’s uterus that is a ‘miscarriage’ and the effect is abortifacient rather than contraceptive.The Abortion Act 1967 must be complied with for this to be done legally. What, however, of the contragestive method? Is a failure to implant also a ‘miscarriage’? In one sense, the woman has ceased to ‘carry’ and, hence has ‘miscarried’. What was previously within her body will be expelled. However, this does not tally within the ordinary notion of ‘miscarriage’ which would entail a lost ‘pregnancy’ (ie which had become established to the woman’s knowledge). This, of course, only occurs once a period is missed which itself can only follow the implantation of the developing embryo. Also, a broad notion of ‘miscarriage’ is not consistent with modern medical usage. While legislation has to be interpreted in the sense intended at the time of its enactment (originally 1803), attempts to show that the broader meaning was intended merely illustrate the ambiguity in the language used or the relative ignorance of the time about the reproductive process.”
“In short, little of any value can be gleaned about the meaning of ‘miscarriage’ by reliance on early or late nineteenth century medical or legal dicta. What then amounts to a ‘miscarriage’? The weight of legal writing supports the view that ‘carriage’ requires the developing embryo to have implanted. This comports most easily with accepted notions of what it is to be pregnant and for it to end by means of an abortion. Further, there is no convincing public policy argument which would bring contragestive measures within the mischief or desirable scope of the law regulating abortions. In addition, there is strong support for the need for implantation from the (then) Attorney General in a written answer in the House of Commons in 1983 and Parliament has, in effect, accepted that the concept of ‘carriage’ requires implantation in theHuman Fertilisation and Embryology Act 1990 . Section 2(3) provides, for the purposes of the 1990 Act, that ‘a woman is not to be treated as carrying a child until the embryo has become implanted’. Other jurisdictions have made this interpretation explicit in their legislation based upon the 1861 Act. As a result, purely contragestive methods of birth control are not regulated by the 1967 Act. However, where the method may work pre- or post-implantation, the position may be otherwise. This may occur with an IUD. The legal issue is whether the doctor acts ‘with intent’ to procure a miscarriage. Certainly, if he believes the woman is pregnant, in the sense of ‘carrying’ a foetus in utero, what he is doing falls within the 1861 Act and he must comply with the requirements of the Abortion Act.”
“Medically speaking … there is wealth of difference, the most particular being that the contents of the body’s passages which are open to the exterior are, themselves, ‘external’ to the body. A simple example is to be seen in the ingestion of a toxic substance; an analysis of the stomach or bowel contents may indicate the fact of ingestion but cannot demonstrate poisoning – the substance has not been absorbed and is, accordingly, still ‘external’ in nature. Something which is external is carried only in the loosest sense – it can be dropped either intentionally, accidentally or naturally. There can be little or no doubt that bodily ‘carriage’ implies some kind of integration with the body or, as Kennedy has said: ‘there can be no miscarriage without carriage’.”
“the question of when human life begins as a matter of morality, or indeed biology, is not the same as the question of when pregnancy begins for the purposes of the law. Human life may – or may not – begin in a test-tube, but the mere existence of a fertilised egg in a test-tube does not make the woman who produced the egg pregnant. The important issue, in law, is when pregnancy begins. A number of legal systems contain statutory definitions of the commencement of pregnancy rather than the commencement of human life, and many define it to commence on the completion of implantation … There is no such statute in Scottish or English law. However, the British courts have traditionally accepted the medical profession’s definitions of such things as death, live-birth, mental competency and maturity, and many other things besides; and one can safely predict that the courts will also accept the medical definition of when pregnancy begins. Medically speaking, pregnancy begins on implantation, that is the completion of the process whereby the fertilised egg attaches itself to the wall of the uterus. It follows that any anti-pregnancy technique that prevents implantation does not terminate pregnancy, because there is no pregnancy, and therefore cannot be abortion.”
“Certain modern anti-pregnancy techniques appear to offend against the law because they function after fertilisation of the ovum.”
“the argument is unsound both as a matter of interpretation and of policy. In the first place it has been pointed out that the operator’s intention to procure miscarriage is all that need be shown; the woman need not actually be pregnant at all. Secondly, the use of the word “miscarriage” has always been understood to include any fatal interference with the fertilised ovum” – and there then follows a reference to Glanville Williams’ 1958 statement – “To hold otherwise would, in effect, give a sort of free-for-all moratorium of a week or more after intercourse during which every sort of abortionist could ply his craft with impunity. The law may permit the douching of the vagina soon after intercourse, but that seems the limit of allowable post-coital prevention.”
“These arguments do not appear to be relevant to the discussion concerning the difference between pre-implantation and implantation. They appear to be more concerned with the difference between ‘conception’ and ‘quickening’, particularly in the light of the fact that the nineteenth-century authorities were unaware of the detail of the physiological processes between conception and birth, save in the most general terms.”
“The crucial question is whether the term “miscarriage” presupposes the implantation of the fertilised ovum in the lining of the uterus. If it does, then interceptive means, which operate by frustrating implantation, are not prohibited by sections 58 and 59.”
“The fourfold evidence presented above, reinforced by the unrestricted usage of “miscarriage” in both medical and popular contexts, renders untenable a restricted interpretation of section 58. It therefore indicates that the post-coital fitting of an IUD or administration of a post-coital pill with intent to terminate pregnancy, if such exists, is prohibited by section 58, and the procurement or supply of such means, by section 59. It is submitted that the post-coital use of interceptive means of fertility control, and their procurement and supply, are prohibited by sections 58 and 59 respectively … , and that this is so whether they are intended to procure the miscarriage of actual or suspected pregnancies. This submission has been grounded in an analysis of the word “miscarriage” as used in these sections. The unrestricted use of the term in the nineteenth century abortion provisions, its equally unrestricted interpretation by legal and medico-legal authorities, and the policy of the legislation, indicate the legal irrelevance of implantation, and the intention of the legislature to prohibit abortion from the time of fertilisation.”
“(a) The destruction or death of an embryo or fetus after implantation; or (b) The premature expulsion or removal of an embryo or fetus after implantation, otherwise than for the purpose of inducing the birth of a fetus believed to be viable or removing a fetus that has died.”
“the present case falls four square within the decision in Reg v Matthews . … That case having been quoted in the textbooks ever since, no writer had ever suggested that it was bad law. … Dealing as we are today with a statute that affects the liberty of the subject, it does not seem to me that it is permissible to adopt a different construction of the relevant words to that which has so long stood as law, and now for the first time in effect to construe them adversely to the defendant in this case.”
“Of course no one supposes that the legislature intended to refer specifically to telephones many years before they were invented, but it is highly probable that they would, and it seems to us clear that they actually did, use language embracing future discoveries as to the use of electricity for the purpose of conveying intelligence. The great object of the Act of 1863 was to give special powers to telegraph companies to enable them to open streets, lay down wires, take land, suspend wires over highways, connect wires, erect posts on the roofs of houses, and do many other things of the same sort. The Act, in short, was intended to confer powers and to impose duties upon companies established for the purpose of communicating information by the action of electricity upon wires, and absurd consequences would follow if the nature and extent of those powers and duties were made dependent upon the means employed for the purpose of giving the information.”
“I start from the point that in 1967 - the date of the Act - the only methods used to produce abortions were surgical methods; of these there were several varieties, well enough known. One of these was by intra-amniotic injection - i.e. the direct injection of glucose or saline solutions into the amniotic sac. It was not ideal or, it appears, widely used. Parliament must have been aware of these methods and cannot have had in mind a process where abortifacient agents were administered by nurses. They did not exist. Parliament’s concern must have been to prevent existing methods being carried out by unqualified persons and to insist that they should be carried out by doctors. For these reasons Parliament no doubt used the words, in section 1(1) “ … pregnancy ... terminated by a registered medical practitioner ... ”
“In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament’s policy or intention is directed to that state of affairs. Leaving aside cases of omission by inadvertence, this being not such a case, when a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the Parliamentary intention. They may be held to do so, if they fall within the same genus of facts as those to which the expressed policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made. How liberally these principles may be applied must depend upon the nature of the enactment, and the strictness or otherwise of the words in which it has been expressed. The courts should be less willing to extend expressed meanings if it is clear that the Act in question was designed to be restrictive or circumscribed in its operation rather than liberal or permissive. They will be much less willing to do so where the subject matter is different in kind or dimension from that for which the legislation was passed. In any event there is one course which the courts cannot take, under the law of this country; they cannot fill gaps; they cannot by asking the question “What would Parliament have done in this current case - not being one in contemplation - if the facts had been before it?” attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act itself.”
“In my opinion this Act should be construed with caution. It is dealing with a controversial subject involving moral and social judgments on which opinions strongly differ. It is, if ever an Act was, one for interpreting in the spirit that only that which Parliament has authorised on a fair reading of the relevant sections should be held to be within it.”
“although out of considerations of piety we frequently refer to the actual intention of the draftsman, the correct approach is simply to consider whether the words of the Act of 1861 considered in the light of contemporary knowledge cover a recognisable psychiatric injury. It is undoubtedly true that there are statutes where the correct approach is to construe the legislation “as if one were interpreting it the day after it was passed:”
“The legislation appears to have been framed on the basis that the words which it used were words which everyone would understand without further explanation. In this regard the fact that the statute was enacted in the middle of the last century is of no significance. The public interest, for whose benefit it was enacted, would not be served by construing the words in a narrow or technical way. The words used are ordinary English words, which can be given their ordinary meaning in the usage of the present day. They can take account of changing circumstances both as regards medical knowledge and the means by which one person can cause bodily harm to another.”
“It has been suggested that for your Lordships to decide this appeal in favour of the plaintiff would be to usurp the function of Parliament. It is trite that that is something the courts must not do. When considering social issues in particular judges must not substitute their own views to fill gaps. They must consider whether the new facts “fall within the Parliamentary intention”: Royal College of Nursing of the United Kingdom v Department of Health and Social Security[1981] AC 800 , 822 per Lord Wilberforce. Thus in the present context if, for example, it was explicit or clear that Parliament intended the word “family” to have a narrow meaning for all time, it would be a court’s duty to give effect to it whatever changes in social attitudes a court might think ought to be reflected in the legislation. Similarly if it were explicit or clear that the word must be given a very wide meaning so as to cover relationships for which a court, conscious of the traditional views of society might disapprove, the court’s duty would be to give effect to it. It is, however, for the court in the first place to interpret each phrase in its statutory context. To do so is not to usurp Parliament’s function; not to do so would be to abdicate the judicial function. If Parliament takes the view that the result is not what is wanted it will change the legislation.”
“It is not an answer to the problem to assume (as I accept may be correct) that if in 1920 people had been asked whether one person was a member of another same-sex person’s family the answer would have been “No”
“Given on the basis of these earlier decisions that the word is to be applied flexibly, and does not cover only legally binding relationships, it is necessary to ask what are its characteristics in this legislation and to answer that question to ask further what was Parliament’s purpose. It seems to me that the intention in 1920 was that not just the legal wife but also the other members of the family unit occupying the property on the death of the tenant with him should qualify for the succession. … The hallmarks of the relationship were essentially that there should be a degree of mutual interdependence, of the sharing of lives, of caring and love, of commitment and support. In respect of legal relationships these are presumed, though evidently are not always present as the family law and criminal courts know only too well. In de facto relationships these are capable, if proved, of creating membership of the tenant’s family. If, as I consider, this was the purpose of the legislation, the question is then who in 1994 or today (I draw no distinction between them) are capable in law of being members of the tenant’s family. It is not who would have been so considered in 1920. In considering this question it is necessary to have regard to changes in attitude. The point cannot have been better put than it was by Sir Thomas Bingham MR in R v Ministry of Defence ex p Smith[1996] QB 517 , 552-554 when, although dealing with the validity of an administrative decision rather than the meaning of a few words in a statute, he said, after referring to changes of attitude in society towards same-sex relationships: “I regard the progressive development and refinement of public and professional opinion at home and abroad, here very briefly described, as an important feature of this case. A belief which represented unquestioned orthodoxy in year X may have become questionable by year Y and unsustainable by year Z. Public and professional opinion are a continuum.”
“This submission raises the question whether the word family as used in the Rent Acts may change its meaning as ways of life and social attitudes change. Can the expression family legitimately be interpreted in 1999 as having a different and wider meaning than when it was first enacted in 1920? The principles applicable were stated cogently by Lord Wilberforce in Royal College of Nursing of the United Kingdom v Department of Health and Social Security[1981] AC 800 , 822. A statute must necessarily be interpreted having regard to the state of affairs existing when it was enacted. It is a fair presumption that Parliament’s intention was directed at that state of affairs. When circumstances change, a court has to consider whether they fall within the parliamentary intention. They may do so if there can be detected a clear purpose in the legislation which can only be fulfilled if an extension is made. How liberally these principles may be applied must depend upon the nature of the enactment, and the strictness or otherwise of the words in which it was expressed. In the present case Parliament used an ordinary word of flexible meaning and left it undefined. The underlying legislative purpose was to provide a secure home for those who share their lives together with the original tenant in the manner which characterises a family unit. This purpose would be at risk of being stultified if the courts could not have regard to changes in the way people live together and changes in the perception of relationships. This approach is supported by the fact that successive Rent Acts have used the same undefined expression despite the far-reaching changes in ways of life and social attitudes meanwhile. It would be unattractive, to the extent of being unacceptable, to interpret the word family in theRent Act 1977 without regard to these changes.”
“In one respect of crucial importance there has been a change in social attitudes over the last half-century. I am not referring to the change in attitude toward sexual relationships between a man and woman outside marriage or toward homosexual relationships. There has been a widespread change in attitude toward such relationships, although differing and deeply felt views are held on these matters. These differing views are to be recognised and respected. The crucial change to which I am referring is related but different. It is that the morality of a lawful relationship is not now regarded as relevant when the court is deciding whether an individual qualifies for protection under the Rent Acts. Parliament itself made this clear in 1988, when amending the Rent Acts in theHousing Act 1988 . Paragraph 2(3) of Schedule 1 envisages that more than one person may be living with the tenant as a surviving spouse under the extended definition. In so enacting the law Parliament was not expressing a view, either way, on the morality of such relationships. But by this provision Parliament made plain that, for purposes of Rent Act protection, what matters is the factual position. The same must be true of homosexual relationships. It is for this reason that I do not accept the argument that the inclusion of a tenant’s homosexual partner within the ranks of persons eligible to qualify as members of his family is a step which should be left to Parliament. It really goes without saying that in cases such as this the courts must always proceed with particular caution and sensitivity. That is not to say the courts can never proceed at all.”
“On any view it is difficult to see what fresh set of facts has since come into existence. Homosexual relationships have been known about and existed throughout any relevant period of time and homosexual couples have shared accommodation. Not much has changed; the highest that it can be put is that the public attitude to such relationships has changed. This has nothing to do with any social policy concerning statutory tenancies by succession. If, contrary to what I have just said, it does have relevance, it is a matter for Parliament to consider not for the courts to ask themselves: “What would Parliament do now?””
“My Lords, on the surface, this does not look like a very momentous case. The question is whether Mr and Mrs Oakley’s landlord should have provided them with a basin in the wc. The statute which they say made it necessary to install one is ambiguous. The language is capable of bearing such a construction. On the other hand, it is very unlikely that this was what Parliament intended. So the courts have a choice. If they say that Mr and Mrs Oakley should have had a basin, landlords of old houses and flats all over the country will have to instal them. Local authorities and housing trusts will have to incur very considerable expense. Under the surface, therefore, the case raises a question of great constitutional importance. When it comes to the expenditure of large sums of public and private money, who should make the decision? If the statute is clear, then of course Parliament has already made the decision and the courts merely enforce it. But when the statute is doubtful, should judges decide? Or should they leave the decision to democratically elected councillors or members of Parliament?”
“Mr Supperstone argued that section 79(1)(a) must be construed in the light of modern conditions. When it speaks of a “state ... prejudicial to health”, this does not mean a state which would have been so regarded in 1846. It requires the application of modern knowledge and standards of hygiene. The words must be construed as “always speaking” in the sense used by Lord Steyn in R v Ireland[1998] AC 147 , 158-159. I quite agree that when a statute employs a concept which may change in content with advancing knowledge, technology or social standards, it should be interpreted as it would be currently understood. The content may change but the concept remains the same. The meaning of the statutory language remains unaltered. So the concept of a vehicle has the same meaning today as it did in 1800, even though it includes methods of conveyance which would not have been imagined by a legislator of those days. The same is true of social standards. The concept of cruelty is the same today as it was when the Bill of Rights 1688 (1 Will & Mary, sess 2, c 2) forbade the infliction of “cruel and unusual punishments” (section 10). But changes in social standards mean that punishments which would not have been regarded as cruel in 1688 will be so regarded today. This doctrine does not however mean that one can construe the language of an old statute to mean something conceptually different from what the contemporary evidence shows that Parliament must have intended. So, for example, in the recent case of Goodes v East Sussex County Council[2000] 1 WLR 1356 , the House of Lords decided that the statutory duty of highway authorities to “maintain” the highway did not include the removal of ice and snow. Although the word “maintain” was capable of including the removal of ice and snow and such removal might be expected by modern road users, the contemporary evidence showed that the concept of maintenance in the legislation was confined to keeping the fabric of the road in repair. To require the removal of ice and snow would not be to apply that concept in accordance with modern standards (such as requiring a metalled surface instead of gravel) but would be using the word “maintain” to express a broader concept than Parliament intended. Such a change would not be in accordance with the meaning of the statute. Likewise it seems to me in this case that an extension of the concept of “premises in such a state as to be prejudicial to health” to the absence of facilities, as such, is an illegitimate extension of the statutory meaning. My Lords, it seems to me that the temptation to make such an extension should be resisted … In my opinion the decision as to whether or not to take such a step should be made by the elected representatives of the people and not by the courts.”
“I might say that I meant the family to be guided by the concept of fairness, not by any specific conception of fairness I might have had in mind.”
“should be interpreted in the light of the current scientific evidence … The proper approach is to make use of the best current medical and scientific knowledge that is available.”
“I … adopt the narrower interpretation of this part of section 58, and hold that the word “miscarriage” in this context relates to the spontaneous expulsion of the products of pregnancy. I further hold, in accordance with the uncontroverted evidence that I have heard, that a pregnancy cannot come into existence until the fertilized ovum has become implanted in the womb … It follows from this – and I so hold – that the insertion of an intra-uterine contraceptive device before a pregnancy has become established, with the intention of preventing the successful implantation in the uterine wall of any fertilized ovum that may result from a prior act of sexual intercourse, does not amount to an offence undersection 58 of the Offences Against the Person Act 1861 .”
“Abortion – (or Miscarriage) the separation and expulsion of the contents of the pregnant uterus before the 28 th week of pregnancy.”
“For the purposes of this Act, a woman is not to be treated as carrying a child until the embryo has become implanted.”
“ … the egg is released naturally from the ovary at the normal time in the donor’s menstrual cycle. At the predicted time of ovulation she is artificially inseminated with semen from the husband of the infertile woman … Some three to four days later, before the start of implantation , the donor’s uterus is “washed out” and any embryo retrieved is then transferred to the uterus of the infertile woman.”
“The legislation would not however apply to any embryo where implantation (the process whereby an embryo becomes embedded in the wall of the womb) was under way or had completed.”
“ Dr Hampson asked the Attorney-General how many complaints have been received, either by himself or by the Director of Public Prosecutions, which relate to the supply of what is commonly called the “morning after” pill; and whether he proposes to institute criminal proceedings in connection with any of the complaints. The Attorney-General: One complaint has been made direct to my Department and three to the Director of Public Prosecutions. Each complaint alleges that the supply and administration of such post-coital medications contravenes sections 58 and 59 of the Offences against thePersons Act 1861 and that a woman using such medication may commit an offence undersection 58 of the Act . Such pills are intended to be taken by women following unprotected intercourse to inhibit implantation in the womb of any fertilised ovum. The sole question for resolution therefore is whether the prevention of implantation constitutes the procuring of a miscarriage within the meaning of sections 58 or 59 of the Offences against thePersons Act 1861 . The principles relating to interpretation of statutes require that the words of a statute be given the meaning which they bore at the time the statute was passed. Further, since the words were used in a general statute, they are prima facie presumed to be used in their popular, ordinary or natural sense. In this context it is important to bear in mind that a failure to implant is something which may occur in the manner described above or quite spontaneously. Indeed in a significant proportion of cases the fertilised ovum is lost either prior to implantation or at the next menstruation. It is clear that, used in its ordinary sense, the word “miscarriage” is not apt to describe a failure to implant – whether spontaneous or not. Likewise, the phrase “procure a miscarriage” cannot be construed to include the prevention of implantation. Whatever the state of medical knowledge in the 19 th century, the ordinary use of the word “miscarriage” related to interference at a stage of pre-natal development later than implantation. In the light of the above I have come to the conclusion that this form of post-coital treatment does not constitute a criminal offence within either sections 58 or 59 of the Offences against thePersons Act 1861 . No proceedings are to be instituted.”
“Emergency contraception is precisely that: contraception to be used in an emergency, possibly when the regular form of contraception fails. … However, it is intended to be used occasionally, and is not a form of long-term birth control. As the hon Lady said – I want to underline this – neither is it a form of abortion.”
“ Mr Gummer: To ask the Secretary of State for Health if he defines the morning-after pill as an abortifacient; and if he will make a statement. Yvette Cooper: The accepted legal and medical view is that emergency contraception is not a method of abortion. Emergency contraception pills work before implantation and so before a pregnancy has been established. Emergency contraceptive pills will not cause an abortion if taken after implantation. My right hon Friend the Attorney-General, in answering a parliamentary question in 1983, stated that medical practitioners would not be prosecuted for illegal abortion if they sought to prevent implantation by the use of the ‘morning-after pill’ or an inter-uterine device.”
“Levonorgestrel … works prior to implantation and prevents pregnancy. The accepted legal and medical view is that emergency contraception is not a method of abortion.”