1. Sir David Steel, 174 HC Official Report (6th series) col 1142, 1989–1990. Emphasis added.

2. [2002] EWHC 610 (Admin), [2002] 2 FLR 146. Hereafter ‘Smeaton’.

3. The MAP (which in fact comprises two pills, taken within 72 hours of intercourse) may also operate to prevent fertilisation. This paper considers the legality of administering the MAP with the intent (purpose) of preventing the implantation of any embryo which may have been conceived, not with the sole intention of preventing fertilisation.

4. Section 58 reads: ‘Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be 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 liable to a maximum penalty of life imprisonment. The argument that it is an offence at common law to destroy an embryo from fertilisation (and not merely from quickening) is not without force but it was apparently not raised in Smeaton and is not considered in this paper.

5. The punishment is imprisonment for a maximum of five years.

6. Abortion Act 1967, s 1(1)(a).

7. 42 HC Official Report (6th series) written answers, cols 238, 239, 10 May 1983.

8. I J Keown ‘“Miscarriage”: A Medico-Legal Analysis’ [1984] Crim LR 604.

9. SI 2000/3231.

10. SPUC sought to quash the 2000 Order and a declaration that it was ultra vires the Secretary of State; that a person who administered the MAP with the intention of expelling any embryo which may exist committed an offence under s 58; and that a person supplying the MAP intending it be used for such a purpose committed an offence under s 59.

11. Smeaton at %[19].

12. And in two witness statements I was invited to submit on behalf of the claimant: Smeaton at [150]. Two expert witnesses tendered written evidence about the nineteenth-century sources. One (myself) gave evidence, in statements dated 19 October and 14 December 2001. The other, a Ms Joan Walsh, gave evidence, in statements dated 11 July 2001 and 26 January 2002, for the Department of Health. Her first witness statement described her (at para 1) as ‘a Researcher at the Clinical Effectiveness Unit at the Faculty of Family Planning and Reproductive Health Care’. It added that prior to this position she had spent eight years as a clinical embryologist and five as Research and Policy Officer at the Family Planning Association. It continued: ‘My professional roles have required in-depth knowledge of relevant areas in the history of biomedicine, in particular the development and use of fertility control methods in 19th and 20th century Britain’. If she had any formal qualifications or relevant publications in medical or legal history she did not disclose them, and her statements are, with respect, flawed.

13. Smeaton at [152].

14. Smeaton at [152].

15. Smeaton at [158]. Original emphasis.

16. Smeaton at [159].

17. Smeaton at [165].

18. Smeaton at [169].

19. The Principles of Midwifery (3rd edn, 1814) p 193.

20. Ibid, p 194.

21. William Campbell and Alexander D Campbell Introduction to the Study and Practice of Midwifery (2nd edn, 1843). p 651 (original emphasis).

22. Ibid.

23. Advanced in my second witness statement.

24. Smeaton at %[351].

25. Smeaton at %[133].

26. Smeaton at %[133].

27. He defined HCG as ‘a hormone produced by the placenta or the cells destined to form the placenta’: Smeaton at [132].

28. Smeaton at %[134].

29. Smeaton at %[132].

30. Smeaton at %[129].

31. Smeaton at %[126].

32. Smeaton at [134]. Emphasis added.

33. See The Times, Letters, 5 May 1983.

34. R G Edwards Conception in the Human Female (London: Academic Press, 1980) p 1000.

35. See part (e)(i) below.

36. Smeaton at %[148].

37. See text at n 28 above.

38. The eight were: Taylor's Principles und Practice of Medical Jurisprudence (Edinburgh: Churchill Livingston, 13th edn, 1984); The International Dictionary of Medicine arid Biology (New York: Wiley, 1986); Churchill's Illustrated Medical Dictionary (Churchill Livingstone, 1989); Butterworth's Medical Dictionary (London: Butterworth, 2nd edn, 1978. repr 1990); Reproductive Medicine: from A to Z(Oxford: Oxford University Press, 1998); Stedmnn's Medical Dictionary (Philadelphia: Lippincott, Williams and Wilkins, 27th edn, 2000); Melloni's Illustrated Dictionary of Obstetrics and Gynaecology (New York: Parthenon Publishing Group, 2000), and Dorland's Illustrated Medical Dictionary (London: WB Saunders, 29th edn, 2000). Even on the definitions as set out by the judge (Smeaton at [138]––[148]), it is clear that while two (Stedman and Reiss) supported the restricted interpretation, and two (The International Dictionary and Churchill) seemed ambiguous, four (Taylor, Dorland, Butterworths and Melloni) supported the unrestricted interpretation. Moreover, a closer reading of the two ambiguous texts, one which takes account of their definition of ‘impregnation’ as fertilisation, discloses that they too supported the unrestricted interpretation: The International Dictionary of Medicine and Biology (1986) vol II, p 1412: Churchill's Medical Dictionary (1989) p 926.

39. Smeaton at %[147].

40. Queen-Empress v Ademma (1886) ILR 9 Mad 369 at 370.

41. R v Trim [1943] VR 109 at 116.

42. Munah binti Ali v Public Prosecutor (1958) 24 MLR 159 at 160.

43. Smeaton at %[231].

44. The citation given was [1988] 2 CMLR 443, but the correct citation to the High Court decision is [1987] ILRM 477.

45. Quoted by Munby J in Smeaton at [241].

46. Smeaton at [195]. And by Drife: see text at n 25 above.

47. Smeaton at [241]. Emphasis added.

48. Smeaton at %[242].

49. Quoted by Munby J in Smeaton at [249].

50. Smeaton at %[248].

51. Smeaton at [249], though Wright J did base his judgment on research by both counsel and himself Smeaton at [249].

52. Quoted by Munby J in Smeaton at [245].

53. [1981] AC 800.

54. Quoted by Munby J in Smeaton at [249].

55. See text at nn 7–8 above. Nor did it advance an updated construction.

56. Quoted by Munby J in Smeaton at [245].

57. Smeaton at %[254].

58. V Tunkel ‘Modern Anti-Pregnancy Techniques and the Criminal Law’ [1974] Crim LR 461; Keown, above n 8.

59. Keown, above n 8, at 611 nn 42–43.

60. G Williams The Sanctity of Life and the Criminal Law (London: Faber and Faber, 1958)p 141.

61. Textbook of Criminal Law (London: Stevens, 2nd edn, 1983) p 294.

62. Dr John Finnis The Times, Letters, 5 April 1983.

63. Glanville Williams The Times, Letters, 13 April 1985.

64. Williams, above n 60, pp 139, 141, 153.206.

65. See, eg. T. Hawkes Tanner On the Signs and Diseases of Pregnancy (London: H Renshaw, 1860) p 211.

66. Williams, above n 60. p 139 n l.

67. Smeaton at [275]. Munby J noted (at [353]) that miscarriage and abortion are also synonymous in modem usage.

68. I Kennedy ‘The Legal and Ethical Implications of Postcoital Birth Control’ in Postcoital Contraception (Pregnancy Advisory Service, 1982). It was reprinted in I Kennedy Treat Me Right (Oxford: Oxford University Press, 1988) ch 3.

69. Quoted by Munby J in Smeaton at [260].

70. See below part 2(e) i.

71. The first definition given in the Oxford English Dictionary is: ‘The unborn or newly born human being; foetus, infant. App originally always used in relation to the mother as the “fruit of the womb’.” It continues: ‘When the application was subsequently extended, the primitive sense was often expressed by babe, baby, infant; but “child” is still the proper term, and retained in phrases such as “with child”…’ (2nd edn, 1989) vol III, p 113. Emphases in original. It goes on to define ‘with child’ as ‘pregnant’: p 114.

72. Paton v Trustees of BPAS [1978] 2 All ER 987.

73. See text at n 60 above.

74. V Tunkel Modem Anti-Pregnancy Techniques and the Criminal Law [1974] Crim LR 461.

75. The Royal College of Nursing v DHSS [1981] AC 800.

76. Tunkel, above n 74, at 465.

77. Smeaton at %[271].

78. Presumably counsel would not have described those destroying the embryo between fertilisation and implantation as ‘abortionists’.

79. See part 2(a) above.

80. Medical Law: Text With Materials (London: Butterworths, 2nd edn, 1994)p 1412, quoted by Munby J in Smeaton at [271].

81. Smeaton at %[266].

82. Medicine, Patients and the Law (Harmondsworth: Penguin. 1992) pp 293–295, cited in Smeaton at [266].

83. Smeaton at [350]. Original emphasis.

84. Smeaton at %[351].

85. Smeaton at %[352].

86. Smeaton at %[353].

87. See text at n 28 above.

88. See part 2(b)(ii) above.

89. Oxford English Dictionary (2nd edn, 1989) vol II, p919. ‘Carriage’ is defined simply as ‘The action of carrying’: p 914. Similarly, a definition of ‘carry’ in another dictionary is: ‘To serve as a means for the conveyance of: transmit’, as in ‘pipes that carry waste wafer…’: http://dictionary.reference.com/search?q=carry. Original emphasis.

90. The Times, 9 January 2004, p 16.

91. ‘Protein clue may help to end agony of miscarriage’The Times, 9 January 2004, p 10.

92. The Pregnancy Book, http://www.doh.govuk/pregnancybook (last updated 15 October 2003).

93. Above n 92, pp 23, 28 and 104. See also the website for NHS Direct: http://www.nhsdirect.nhs.uk/en.asp?TopicID=366&AreaID=3826&LinkID=2901; Topic ID=310.

94. http://www.womens-health.co.ukmiscarr.htm(updated January 1999).

95. See text above n 34.

96. See text above n 1.

97. On Google..

98. (1880–81) LR 6 QBD 244.

99. Quoted by Munby J in Smeaton at [305].

100. The other cases were: Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800; R v Ireland [1998] AC 147; Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27; Birmingham City Council v Oakley [2001] 1 AC 617; R (Quintavalle) v Secretary of State for Health [2002] 2 WLR 550.

101. [2001] 1 AC 27.

102. Quoted by Munby J in Smeaton at [316]. Lord Slynn added that an alternative question was whether the word ‘family’ in the 1920 Act had to be updated to include persons who today would be regarded as being of each other's family, whatever might have been said in 1920: at [316].

103. Quoted by Munby J in Smeaton at [317].

104. Quoted by Munby J in Smeaton at [318].

105. Smearon at %[342].

106. Smeaton at %[349].

107. See text above n 83.

108. Smeaton at %[354].

109. Medical Ethics (Manchester: S Russell, 1803) p 79.

110. O W Bartley A Treatise on Forensic Medicine (Bristol: Barry, 1815) p 2.

111. T R Beck Elements of Medical Jurisprudence (London: John Anderson, 2nd edn, 1825) p 140.

112. M Ryan A Manual of Medical Jurisprudence, And State Medicine (London: Sherwood, 2nd edn, 1836) p 265.

113. Ryan, above n 112, p 283.

114. [1861] 1 Lancet 295.

115. [1861] 1 Lancet 121.

116. See generally J Keown Abortion, Doctors and the Law (Cambridge: Cambridge University Press, 1988) chs 1–2.

117. As Professor Williams pointed out the protection of women was not the law's primary purpose, as the equally severe punishments meted out to qualified and unqualified abortionists illustrated: above n 60, p 140. The fact that the woman who procured her own abortion was liable both at common law and under the anti-abortion legislation of the nineteenth century confirms that law regarded the protection of the unborn child as its core purpose.

118. The judge went on to discern further support for the restricted construction by reading it in the context of the Abortion Act 1967 as amended by the Human Fertilisation and Embryology Act 1990. This support was much less significant than the judge thought. For example, he thought that the unrestricted construction was inconsistent with the 1990 Act's authorisation of the removal of pre-implantation embryos in vivo by lavage, whether for treatment services or research (Smeaton at [367]-[375]). Counsel for the Secretary of State argued that it was ‘inconceivable’ that Parliament would have considered the removal of the pre-implantation embryo permissible while regarding as criminal the destruction of a pre-implantation embryo by a woman taking the MAP (Smearon at 13761). Munby J found this argument ‘compelling’ (Snzearort at [367]). He could not believe that the legislature in 1990 created an anomaly as great as that criticised by Dr Tyler Smith in 1849, who praised the law for protecting life from fertilisation but berated it for allowing the execution of women before quickening (Smeaton at [377]). The argument is, however, is no more compelling than the argument that ‘miscarriage’ in the 1861 Act does not protect implanted embryos because the Abortion Act 1967 allows implanted embryos to be destroyed. The fact that Parliament in 1990 legislated to allow a doctor to remove and destroy a pre-implantation embryo does not mean that the legislature understood the Act of 1861 as endorsing the destruction of pre-implantation embryos, whether by doctors or laypeople. The only ‘anomaly’ is that the legislature in 1990 allowed one doctor to remove and destroy a pre-implantation in vitro whereas in 1967 it required two doctors to agree on the destruction of an embryo in vivo. To the extent that this could be described as an ‘anomaly’ at all, to describe it as ‘every bit as great’ as that criticised by Dr Tyler Smith would be something of an exaggeration.

119. Smeaton at %[51].

120. Quoted by Munby J in Smeaton [52].

121. See Smeaton at [71-761, [209]-[225] and [393]-[398]. He was concerned that such a finding would implicate the contraceptive pill, which may also operate by preventing implantation (Smeaton at [71]-[73]), and would ‘inevitably’ result in more post-implantation abortions (Smeaton at [74]). However, s 58 prohibits procuring miscarriage with intent (not merely foresight), and not even the Family Planning Association went so far as to claim that an increase in post-implantation abortion would be inevitable (Smeaton at [217]). Moreover, a recent survey concludes: ‘Women did not report more use of the method once it was made available over the counter: they seem simply to have changed where they obtained it… Over the counter availability is therefore unlikely to have affected unwanted pregnancies.’ C Marston et al ‘Impact on contraceptive practice of making emergency hormonal contraception available over the counter in Great Britain: repeated cross sectional surveys’ (2005) 331 BMJ 271.