The Society for the Protection of Unborn Children (SPUC) has returned to the Court of Session to appeal after it lost its legal challenge against the move last May.
Morag Ross QC, representing the SPUC, said the decision to allow abortion medication to be taken at home is flawed in “two fundamental respects” because it approved treatment outwith the presence of a registered medical practitioner and because a pregnant woman’s home is not a “meaningful class of place”.
The court heard the Abortion Act of 1967 regulated abortion in key areas, including that it be carried out by 24 weeks by a registered medical practitioner, and it be carried out in an NHS hospital or another place approved by the Secretary of State.
Following the Scottish Government’s decision, women in Scotland can now take the drug misoprostol at home, provided they have first taken mifepristone in a clinic 24 to 48 hours beforehand. The two medications work together to end the pregnancy.
Ms Ross said: “What the respondents [the government] are trying to do is to give the place parameters, they just take the place parameters and they want to give it enough flexibility to permit the class of place to extend to a patient’s home but in order to do that they need to rely on retrospective suitability.
“They need to do that in order to justify carving out a place and making it suitable.
“But reading suitability into place is just nothing, it’s a distraction, so this suitability idea, this idea that place is determined by suitability is trying to add an extra layer, which is not there in the act.”
Judge Lady Wise rejected the SPUC’s arguments following a hearing at the Court of Session last May. The SPUC returned yesterday to the Edinburgh court, where the case is being heard by the Lord Justice Clerk Lady Dorrian, Lord Menzies and Lord Brodie.
Lord Menzies asked: “Before the decision, if a woman wished to have an abortion she could go to a clinic and if the doctor was satisfied she had satisfied the criteria then she would be given medication at the clinic, and if she goes away for 24 hours she would then be given another medicine at the clinic and once the second part of the medicine is administered the treatment is complete. What you take exception to is that Scottish ministers do not have the power to allow the second part of the medicine to be taken in an environment where the woman feels most comfortable?”
Ms Ross replied: “Yes”.
Lord Menzies said: “I have difficulty in understanding why it’s outwith the power of the Scottish ministers to allow her to take that pill at home rather than in a clinic.”
The case continues.