DIY Abortion and Harm Reduction

Chapter 2
DIY Abortion and Harm Reduction


Emily Jackson


Introduction


It is an honour to participate in a book dedicated to the celebration of Sheila McLean’s brilliant and foundational contribution to the field of medical law and ethics. Throughout her distinguished career, Sheila’s humanism and compassion have been a hallmark of her research, just as much as the extraordinary clarity and rigour of her scholarship. In relation to abortion, as with access to other medical treatments that enable women to control their fertility or infertility, Sheila has always been a strong and uncompromising advocate of women’s right to take decisions about their bodies with a minimum of external pressure.1 At the same time, Sheila has acknowledged the futility of trying to seek agreement on the fundamental moral question of abortion’s legitimacy,2 and suggested that we should look elsewhere if we seek consensual law reform.


On abortion, as Sheila pointed out in a typically elegant and persuasive article in 1990,3 the pro-choice and the anti-abortion lobbies are effectively talking past each other. Each position has its own internal, albeit value-laden logical consistency, and there is simply no independent logic that can be applied to solve this clash of moral absolutes. Sheila’s solution in her 1990 paper was to focus on the middle-ground, and to take a pragmatic approach to rights in order to rescue the debate from the ‘swamp into which it seems doomed to sink’.


Unsurprisingly, in 2015 pro-choice and anti-abortion lobbyists continue to talk past each other. Sheila was right to point out that a debate framed in terms of women’s rights versus fetal rights cannot ever be conclusively won by one side rather than the other, because neither accepts the other’s foundational moral premises. If you believe that an embryo has the same moral status as a child, then you will not be persuaded by arguments to the contrary because your belief in their equivalent moral status is simply not something that could be shaken by evidence of, say, nature’s profligacy with newly fertilised eggs.4 Similarly, if you believe that a woman should have the right to terminate her pregnancy, high-resolution images of fetuses are not going to change your mind, because what the fetus looks like is not the point.


Although debates over the moral status of the fetus are still stuck in the swamp Sheila drew attention to in 1990, there are some aspects of abortion provision that have changed dramatically. First, for example, the licensing of drugs capable of producing what are known as medical abortions means that it is no longer necessary for a woman seeking a termination to undergo a surgical operation. Secondly, the internet has transformed access to information about safe abortion methods. In this chapter, I consider the impact of these two changes on abortion debates, arguing that their cumulative effect is to facilitate self-abortion, and to make self-abortion potentially much safer than it has ever been before. Rather than being about the rights and wrongs of abortion, or about women’s rights versus fetal rights, the rise of DIY abortion is fundamentally a public health issue. While it is never going to solve the intractable debate between the pro-choice and anti-abortion lobbies, a public health framework may help to take some of the political and moral heat out of the abortion debate.


We are all familiar with horrific accounts – often involving gin, hot baths and knitting needles – of women attempting to terminate their own pregnancies. The decriminalisation of abortion, effected in the UK by the Abortion Act 1967, was intended to relegate this sort of practice to the history books. It is undoubtedly true that throughout most of the developed world, safe and lawful termination of pregnancy is available to most women, at least in the early stages of pregnancy. But DIY abortion has not gone away. On the contrary, it is now possible to purchase abortifacient drugs online. Online pharmacies, with websites that generally do not disclose their physical locations, are willing to sell misoprostol to anyone with a Paypal account, rather than a prescription, and ship it worldwide. And we know from the recent English case of Sarah Catt, initially sentenced to eight years in prison (reduced to three and a half years, on appeal) for procuring her own miscarriage,5 that the use of online pharmacies to purchase abortion pills is not confined to women who live in countries where abortion is against the law.


In countries where abortion continues to be illegal, even given the possibility that medicines bought online might be fake or unsafe, self-medicating with misoprostol is still likely to be safer, on average, than more traditional backstreet abortion methods. If the priority is to reduce the risks to health associated with abortion’s illegality, then it is important to ensure that women can access reliable information about how to obtain and take misoprostol safely. Where such information is available, the radical new option of safe, or at least safer, illegal abortion emerges.


This chapter considers the rise of this new species of DIY abortion, and argues that the most appropriate legal response to self-administered misoprostol is not to put women in prison. Instead, women need to understand the dangers of purchasing medicines online and taking them without medical supervision. The growth of online pharmacies means that consumers in general need high quality information about the risks of self-medication with drugs bought online. It is impossible for a consumer to know whether a website is selling cheap generic medicines, which could – if taken according to instructions – be as safe as their branded equivalent, or whether it is selling drugs that are fake and/or unsafe and which therefore pose a risk to health.6 Women faced with a choice between carrying an unwanted pregnancy to term and taking potentially dangerous termination-inducing drugs purchased over the internet also need access to the safe, lawful abortion services that eliminate the need to make this choice.


In recent years, Conservative politicians in the UK have raised the prospect of restricting access to abortion by, for example, advocating a reduction in the 24-week time-limit;7 making ‘independent’ counselling compulsory,8 and questioning the medical profession’s liberal interpretation of the statutory grounds.9 The ease of DIY abortion, twenty-first-century style, suggests that any further restrictions on access are likely to lead more women to self-medicate with potentially harmful and/or fake medicines. This sort of DIY abortion may look cleaner and less hazardous than the knitting needles of the past, but this chapter argues that the dangers of DIY abortion continue to offer a compelling public health reason for liberal abortion laws.


Abortion Pills


Nearly half of all terminations of pregnancy in the UK are now medical (as opposed to surgical) abortions.10 Almost all of these are early abortions, in which a woman will generally be given two different drugs a few days apart. Although protocols vary, commonly the woman is first given mifepristone which blocks the hormones that help a pregnancy to continue. Two days later, the woman returns to the clinic where misoprostol is given orally or as a pessary to dislodge the embryo from the lining of the uterus and trigger a miscarriage. In order to satisfy the provisions of the Abortion Act 1967, both drugs must be given to the woman in an NHS hospital or other ‘approved place’,11 and the woman’s treatment must be supervised by a registered medical practitioner.12


Unlike surgical abortion, there is no clinical reason why a woman has to be in a particular place to take the drugs, nor why she has to be supervised by a doctor while she does so. Medical termination of pregnancy is safe and effective, and self-medication is straightforward. Although best practice in carrying out early medical abortions is to give mifepristone and misoprostol separately, misoprostol on its own can be used to trigger a miscarriage. Hence, if a woman can obtain both drugs or even just misoprostol, it will be relatively straightforward for her to terminate her own pregnancy.


Until relatively recently, bypassing the provisions of the Abortion Act by terminating one’s own pregnancy would have been difficult. Within the UK, it is a criminal offence to supply a prescription-only medicine without a prescription.13 Online pharmacies, based offshore, enable consumers to bypass restrictions on the supply of prescription-only medicines. At the time of writing, searching for ‘buy misoprostol online without prescription’ on google comes up with nearly five million hits. In the most recent global crackdown on the internet trade in fake and unlicensed drugs, in which drugs worth £6.5 million were seized and 18,000 illegal online pharmacies were closed down, mifepristone and misoprostol were found alongside drugs for erectile dysfunction, anabolic steroids and human growth hormone.14


With the exception of certain controlled drugs, the penalties for obtaining prescription-only drugs without a prescription are directed at the supplier rather than the purchaser. It is therefore not an offence to buy misoprostol from an online pharmacy. If, however, misoprostol is judged to be a ‘poison or other noxious thing’, using it to terminate one’s own pregnancy would be a criminal offence under s. 58 of the Offences Against the Person Act 1861, to which the Abortion Act 1967 would offer no defence.


In England, Scotland and Wales, comparatively few women will be tempted to terminate their own pregnancies with abortion pills purchased over the internet. In the first months of pregnancy, NHS-funded abortion services are accessible and free of charge. If access to a safe NHS-funded abortion is straightforward, a woman is unlikely to be tempted to pay for drugs from an unregulated online pharmacy instead. It would, however, be a mistake to assume that self-abortion, using drugs bought online does not happen in the UK. In Northern Ireland, where abortion continues to be illegal unless the woman faces a grave risk to her life or health, terminating one’s pregnancy with a medicine bought online may be more convenient and affordable than travelling to England, Scotland or Wales for a private abortion. In March 2013, more than 100 Northern Irish women signed an open letter in which they admitted publicly to having terminated pregnancies using pills bought on the internet, and in which they claimed that they ‘represent[ed] just a small fraction of those who have used, or helped others to use, this method’.15


Within England, Scotland and Wales, there may also be women who are tempted to buy medicines online in order to terminate their own pregnancies. We know that one of the main reasons why people buy medicines online, even when they could obtain them under prescription from their doctor, is shame or embarrassment, and it seems plausible that this might drive some women to seek out self-abortion even when lawful abortion is available. To a frightened and panic-struck teenager, for example, buying a medicine online to trigger a miscarriage might seem preferable to telling her parents about her pregnancy. A woman who is determined to end her pregnancy when to do so would not be lawful under the Abortion Act might also attempt to self-abort. This was the case for Sarah Catt, who bought abortion pills from an internet site in order to terminate her own pregnancy, shortly before she was due to give birth. In doing so, she was said to have ‘procured a miscarriage’ outside of the statutory defences offered to doctors under the Abortion Act 1967, and committed a crime under s. 58 of the Offences Against the Person Act 1861. Initially Cooke J sentenced Catt to eight years in prison, on the grounds that ‘bearing in mind the need for deterrence, a long determinative sentence is required’.16


To many observers, this sentence seemed draconian. A woman who has tried to kill her full term fetus in order to deliver a dead baby might appear to be in need of psychiatric help, rather than punishment. Cooke J’s reliance on the need for deterrence to justify the long custodial sentence is also noteworthy. For most women, there could be few things more horrific than going through the painful and arduous process of labour and childbirth in order to deliver a dead baby. If a woman is in such desperate straits that that prospect does not put her off, it is hard to imagine that she will be brought up short by the thought of a lengthy prison term. The reduction in Catt’s sentence on appeal might look compassionate, but it is at least arguable that psychiatric intervention might be a more appropriate response than punishment to self-abortion in these circumstances.


It is clear that the Catt case is by no means an isolated instance of a woman in a country where abortion is lawful attempting to self-abort using drugs she has obtained herself. In the Australian case of R v. Brennan and Leach,17 a woman and her boyfriend were found not guilty of procuring the woman’s miscarriage (the wording of s. 225 of the 1899 Queensland Criminal Code is strikingly similar to that of the Offences Against the Person Act) after her partner had obtained misoprostol and mifepristone from a relative in the Ukraine. The couple had decided that, at the ages of 19 and 20, they were too young to become parents and the woman did not want to undergo a surgical abortion. The judge ordered the jury to acquit if they were not convinced that the drugs used were indeed ‘noxious’, and reminded them of the testimony of an obstetrics and gynaecology specialist, Professor Nicholas Fisk. According to Fisk, the drugs were not harmful to the person taking them and there had been no ill-effects on the woman in this case. These pills were, he said, taken by thousands of women around the world every year and were listed as an essential medicine by the World Health Organization. Fisk had further pointed out that it could not be proved that the drugs had caused Ms Leach’s miscarriage, which could have occurred naturally. This slightly curious interpretation of the word ‘noxious’ – that it had to be noxious to the woman, and not just to the fetus – meant that Ms Leach and her partner were spared conviction and possible imprisonment. It could nevertheless be argued that there is something odd about prosecuting someone for taking a medicine which represents a safe and effective way to undergo a lawful medical treatment.18 Women might also be tempted to self-medicate with abortifacient drugs bought online in countries like Canada, where abortion is lawful but mifepristone is not licensed for use.19 It is impossible to know how common it is for Canadian women to self-abort using drugs they obtain themselves, but given the greater convenience of medical abortion, Canada’s failure to issue mifepristone the equivalent of a marketing authorisation might serve to encourage some women to opt for DIY abortion.


In countries where safe, legal abortion is unavailable, demand for self-administered misoprostol is likely to be much greater. It is well established that in countries where abortion is illegal, rates of abortion remain high. Indeed, it appears that the abortion rate is higher in countries with restrictive abortion laws than it is where the law is more liberal.20 Moreover, while abortion rates appear to be dropping in countries where abortion is legal they are increasing in countries where abortion is illegal and unsafe. It is impossible to know exactly how many women have unsafe, illegal abortions each year, but it is thought to be well over 20 million.21 Each year, about 47,000 women will die from the complications of illegal abortions, and 8.5 million women will require medical attention.22