Agenda: Are in-home abortions legal?

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By Dr. Calum McKellar McKellar

Partial-birth surgical abortions in Scotland have been available at home since 2017. These normally take place in the first 10 weeks of pregnancy, with two pills being given to the woman. Typically, the first (mifepristone) is taken in a clinic and inhibits a hormone required for the implanted embryo/fetus to be borne by the uterus. Two days later, the second pill (misoprostol) is taken at home (if the woman chooses) and allows the uterine lining to break down, resulting in the dead embryo/fetus being removed.

These partial home abortions may be approved by the Scottish government since the 1967 Abortion Act states that a minister can approve a “class of places” where a medical abortion can be performed, such as at home. But since March 2020, and given the risks of infection with Covid-19, a woman pursuing a medical abortion can now, if possible, receive all abortion pills from a doctor by phone or video call, which can then be taken at home. And because of this precedent, even after the Covid-19 attack, the Scottish government has been debating until today (Jan. 5) whether to make this clause permanent.

But there has now been controversy as to whether these “full home abortions,” in which both pills are taken at home, are in fact legal. This is because in such abortions, it is the patient who essentially takes full responsibility for the abortion, not a doctor in private practice. “A person is not guilty of an offence …. [only]if a pregnancy is terminated by a registered medical practitioner [and not by the woman seeking the termination].”A person is not guilty of an offense….[only]if a registered medical practitioner [and not the woman seeking termination]terminates a pregnancy.

In addition, who is liable for the actual act of terminating life is legally relevant. There is also a distinction in Scotland between (1) euthanasia (in which one person is responsible for ending the life of another person directly), which would usually be considered a form of homicide, and (2) assisted suicide (in which one person merely provides another person with lethal medication to take at home), which could be viewed as a form of guilty homicide.

The Scottish government replied in December 2020 when asked in November 2020 to unambiguously confirm that full home abortions are not illegal, only that it “does not believe that women who have an abortion under the current authorization … Would be committing a crime.” However, a belief is something completely different from a legal assertion, and such an ambiguous government response is bot.

To combat unlawful and unsafe abortions on the street or in the house, the 1967 Abortion Act was enacted in part. Consequently, it is completely inappropriate for the Scottish Government, as it has in its current consultation, to recommend a return to a situation which could be identical. A case in which women might be tempted to consider illegally controlled abortions, which might even be illegal.

Dr. Calum McKellar is the director of research for the Scottish Human Bioethics Council.

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