“(1) 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 … (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.”
“Clarification of time limit for termination of pregnancyperformed under Grounds C and D of the Abortion Act1967 I am writing to clarify the Department of Health and Social Care’s interpretation of the legal time limit for termination of pregnancy performed under Grounds C orD of the Abortion Act 1967 , which sets out that an abortion can legally be performed under these Grounds where ‘the pregnancy has not exceeded its twenty-fourth week’. The Department’s legal advice is that the time limit for abortion performed under Grounds C or D equates to a pregnancy not exceeding 23 weeks and 6 days. The taking of the second abortion drug or surgical evacuation forms part of the treatment for termination of pregnancy and therefore all elements of treatment must be completed by 23 weeks and 6 days. This advice is based on the fact that, clinically, a pregnancy is dated from the 1st day of the woman’s last menstrual period (LMP). As you will be aware, this day is counted as day 0 of her pregnancy. Therefore, when the woman reaches 23 weeks + 0 days she will have entered her 24th week of pregnancy, which will run from 23 weeks + 0 days to 23 weeks + 6 days (7 completed days of pregnancy in total). Using this method of calculation, a woman will have exceeded her twenty-fourth 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. On the expiration of her 24th week of pregnancy, she will have been pregnant for a total of 168 days; an abortion on the 169th day (24 weeks + 0) would, in the view of DHSC’s legal services, be unlawful. To remove any ambiguity, HSA4 forms and other relevant documentation, including the Required Standard Operating Procedures for independent sector providers will be amended to clearly state that abortion under Grounds C or D can legally be performed up to and including 23 weeks and 6 days.”
“I [Rt Hon Dawn Primarolo, Minister of State for Public Health] would also like to take this opportunity to clarify the meaning of ‘the pregnancy has not exceeded its twenty-fourth week’. In yesterday’s evidence session two different figures were cited. A pregnancy has exceeded it[s] 24th week on the day that the 25th week commences – that is when it is over 168 days. [The accepted view is that the period commences with the first day of the woman’s last period]. ”
“Dawn Primarolo wrote to the Science and Technology Committee on 25 October confirming the Department of Health’s view on this matter which were: Calculation of 24 week period I would also like to take this opportunity to clarify the meaning of ‘the pregnancy has not exceeded its twenty-fourth week’. In yesterday’s evidence session two different figures were cited. A pregnancy has exceeded its 24th week on the day that the 25th week commences? that is when it is over 168 days. That is—a pregnancy exceeds its 24 week at 24 + 1.”
“While internal departmental emails from 2007 show that there was still some confusion over the gestational cut off, they do not contain any reasoning to support the view that it should be 24 + 0. I have not been able to establish why Ms Furedi was told that ‘a pregnancy exceeds its 24 week at 24 + 1’. It does not appear that the Department consulted RCOG or any other professional bodies at this time.”
“It was understood that the approach to the 23 + 6/24 + 0 issue needed to be consistent for all purposes (i.e. in relation to both abortion cut offs and the classification of stillbirths). I set out the Department’s view that the cut off was 24 + 0, but this was challenged by Dr Catherine Calderwood, at that time National Clinical Director for Maternity and Women’s Health NHS England, now CMO for Scotland.”
“A pregnancy is dated from the 1st day of the woman’s last menstrual period (LMP). Of course she is not pregnant then but conceives approx. 2 weeks later when ovulation occurs. However convention calls this Week 1 of pregnancy (days 0-6). Let’s say that the 1st day of the LMP was a Saturday then she enters Week 2 of pregnancy the following Saturday and is then 1 week 0 days’ pregnant, on the Sunday she is 1 week 1 day, Mon 1 week 2 days’ pregnant and so on. The following Saturday she is 2 weeks 0 days’ pregnant and enters the 3rd week of pregnancy. Following this through logically. So at 23 weeks 0 days she enters the 24th week of pregnancy and we discuss her being in her ‘24th week’ while she is 23 weeks 0 days to 23 weeks 6 days (7 days). At 24 weeks 0 days she enters the 25th week of pregnancy. I would therefore suggest that at 24 weeks 0 days she has ‘exceeded her 24th week of pregnancy’ and that this is not consistent with the advice given previously. In other words, if we are discussing the 24th week of pregnancy this is up to and including 23 weeks and 6 days gestation and at 24 weeks and 0 days this is the 25th week of pregnancy.”
“At the time, the available evidence suggested that abortions were not actually being performed at 24 + 0 and this was a crucial factor in the Minister’s decision making. This evidence was based on the answers given in the HSA4 form, specifically question 5 on the number of completed weeks’ gestation. The HTA duly issued its guidance outlining that disposal of foetal remains applied to pregnancies not exceeding their 24th week in March 2015.”
“5. Following advice from clinicians and from DHSC lawyers that the legal interpretation of the time limit for abortions under groundsC and D of the Abortion Act 1967 is 23 weeks and 6 days, you agreed that abortion providers should be informed of this interpretation. This work was subsequently put on hold (at No.10’s request) following the outcome of the abortion referendum in the Irish Republic. As a result, the revised interpretation was not included in the refreshed Required Standard Operating Procedures which were circulated to independent sector clinics when they were invited to apply for re-approval. 6. Of the 143 clinics, 62 BPAS clinics have applied to perform abortions up to 24 weeks + 0 days. Therefore, before reapproval, we recommend that providers be contacted informing them of the Department’s revised interpretation and informing them that clinics are only approved to perform abortion not exceeding 23 weeks and 6 days. We also recommend that their approval letters are explicit that their approval is for abortions not exceeding 23 weeks and 6 days only. In addition we also send out the CMO letter we previously prepared on this issue… Are you content with this approach? 7. If no action is taken there is a risk that further abortions will be performed outside of legal gestational limits. There is also a risk of reputational risk to the Department if we are seen to have failed to inform providers of our revised interpretation of the law. 8. Although the majority of abortion providers already interpret the abortion time limit as 23 weeks and 6 days, it is possible BPAS will accuse the Department of reducing the time limit for abortion. To manage this risk, officials will discuss the Department’s clarified advice with the CEO of BPAS and explain the rationale behind our interpretation, which is based on clinical and legal advice.”
“Unfortunately, this gave us very little time to alert providers and other stakeholders ahead of renewal on31 July 2018 . I spoke to Ann Furedi, Chief Executive of the Claimant, on23rd July 2018 to explain that the approval letters would stipulate a licence to perform Grounds C and D abortions up to 23+6, in line with the Department’s understanding of the correct time limit. I also spoke to the RCOG to inform them and another member of team informed Marie Stopes International, while others in the team e-mailed other relevant stakeholders. The approval letter renewing the Claimant’s licence in respect of its Cambridge clinic was sent out on the23rd July 2018 and stated ‘This approval is valid until31 July 2022 and is to perform medical abortions up to 23 weeks + 6 days’ (the Claimant had only sought approval for medical abortions in respect of its Cambridge clinic)… On the same day, on the Department’s request and on its behalf, the CMO issued a letter to doctors performing termination of pregnancy clarifying the Department’s understanding that the time limit for Grounds C and D abortions was 23 + 6.”
“Firstly, I should make clear that the clarification was not issued because of a difficulty with statistics. It was issued because of clear legal and clinical advice provided to me which stated that the time limit for abortions performed under grounds C and D of the Act is 23 weeks + 6 days. This supersedes previous advice and guidance you reference (now considered to be incorrect), including direct correspondence with BPAS, that the limit was 24 weeks + 0 days. When the Department became aware that a small number of doctors were performing abortions under grounds C at 24 weeks + 0 days it was important that this clarification was communicated to all doctors performing termination of pregnancy to ensure that they keep clinical practice within the law. The rationale for how we reached this conclusion was very clearly set out in my letter. As you acknowledge, the number of abortions being performed at 24 + 0 is very small. You set out details of some of the cases you have treated at these gestations and I accept that it is often very vulnerable women being seen at these later gestations, however it is Parliament that set the time limits for abortion not the Department for Health and Social Care.”
“The first day of the LMP, which is the day that the LMP begins, is referred to as day 0. Use of ‘0’ to describe day one of a pregnancy is less to do with the specifics of obstetrics than it is to do with accurately describing that day 1 has been entered into but not yet completed. Only at the point that the first day has been completed, when the woman enters the second day, would it be said that the woman is 1 day pregnant. This is why being within the boundaries of a given week (and not into the next) is described at 0-6 days, once day 6 is completed the woman has been pregnant for 7 days and enters her second week.”
“In accordance with this approach, it follows logically that: (a) at 23 weeks + 0 days a woman enters the twenty-fourth week of pregnancy and we discuss her being in her ‘twentyfourth week’. (b) this is 23 weeks + 0 days to 23 weeks + 6 days (7 days); and (c) at 24 weeks plus 0 days she enters the twenty-fifth week of pregnancy.”
“Where an Act has been interpreted in a particular way without dissent over a long period, those interested should be able to continue to order their affairs on that basis without risk of it being upset by a novel approach. That applies particularly in a relatively esoteric area of the law such as the present, in relation to which cases may rarely come before the courts, and the established practice is the only guide for operators and their advisers.”
“The present statutory context provides an unusually strong, and in my view fully sufficient, basis for having regard to the later history. The Act itself contained a procedure for enabling any principal objections to the form of an order to be settled by Parliament itself. In that respect, to borrow Lord Nicholls’ phrase in the Jackson case, the involvement of the legislature has gone ‘much deeper’ than in most of the cases in the books. In my view that history points a clear way to the resolution of the ambiguity in the 1868 statute, in so far as that is left in doubt by the context and purpose of the statute itself.”
“… the commissioners recognised the possible ambiguity in the 1868 Act, and gave a clear indication as to how it should be resolved. They found support, as I have done, in the ordinary incidence of a ‘several fishery’ and also in the specific provision in s.29 for the establishment of a ‘body corporate’. By approving the Bill in the form recommended by them, Parliament can arguably be taken, at least for the future, as impliedly endorsing the reasoning of the report.”
“Carnwath LJ has described the subsequent legislative events. I agree with him that, when construing section 40, the present statutory context provides an unusually strong basis for having regard to the later history. The legislature has subsequently been involved both in approving orders under the 1868 Act, as its section 38 originally required, and in passing the 1967 Act with knowledge of the many extant orders under the earlier statute, including the 1962 Order at issue in this case. I agree with Carnwath LJ’s analysis of the Law Commission report and its effects.”
“In matters of statutory construction, the statutory purpose and the general scheme by which it is to be put into effect are of central importance. They represent the context in which individual words are to be understood. In this area as in the area of contractual construction, ‘the notion of words having a natural meaning’ is not always very helpful (see Charter Reinsurance Co. Ltd v Fagan[1997] AC 313 , 391C, per Lord Hoffmann), and certainly not as a starting point, before identifying the legislative purpose and scheme. In the case of a statute which has, like the 1981 Act, been the subject of amendment it is not lightly to be concluded that Parliament, when making the amendment, misunderstood the general scheme of the general legislation, with the effect of creating a palpable anomaly…”
“58. In circumstances such as these there must be, at the very least, a powerful presumption that the meaning that has customarily been given to the phrase in issue is the correct one. Carnwath LJ expressed one reason for this in Isle of Anglesey County Council v Welsh Ministers[2010] 10 QB 163 , para 43: ‘Where an Act has been interpreted in a particular way without dissent over a long period, those interested should be able to continue to order their affairs on that basis without the risk of being upset by a novel approach.’ 59. This has the air of pragmatism rather than principle, but courts are understandably reluctant to disturb a settled construction and the practice that has been based on that construction: see Bennion on Statutory Interpretation, 5th Ed (2008), s.288, p.913, and the authorities there cited.”
“12 weeks + one day exceeds 12 weeks. Therefore, 12 weeks is 12 weeks + 0 days”