On 19 May, at a rolled-up hearing, the Divisional Court (Singh LJ and Chamberlain J) dismissed a challenge to the decision of the Secretary of State for Health and Social Care to make changes to certain abortion measures during the COVID-19 pandemic.

One of the requirements in s.1 of the Abortion Act 1967 is that any treatment for the termination of pregnancy must be carried out either in a type of hospital which is there specified or “in a place approved for the purposes of this section by the Secretary of State”. The Human Fertilisation and Embryology Act 1990 amended the 1967 Act by inserting subsection (3A), which provides that the power to approve a place includes power “to approve a class of places”.

Termination of pregnancy during the first ten weeks usually involves the pregnant woman taking two different drugs: Mifepristone then, 24 to 48 hours later, Misoprostol. In December 2018, the Secretary of State approved “the home of a pregnant woman” as an approved “class of place” under s.1(3A) of the 1967 Act in which to take Misoprostol, provided that the earlier drug, Mifepristone, had been administered during an appointment with a doctor. That was superseded by a further approval on 30 March 2020 which permits the first drug, Mifepristone, also to be taken in “the home of a pregnant woman”: the approval is in respect of England only. The change is temporary and “expires on the day on which the temporary provisions of the Coronavirus Act 2020 expire, or the end of the period of 2 years beginning with the day on which it is made, whichever is earlier.”

The reason for the change was that abortion is an urgent, time-sensitive clinical procedure and any upset in access to abortion services would be liable to have substantial negative impacts on women seeking terminations. They would have had to leave their homes in order to take Mifepristone and obtain Misoprostol which, it was argued, would have increased the risk of infection with COVID-19 and increased the risk of spreading the disease.

In R (Christian Concern) v Secretary of State for Health and Social Care [2020] EWHC (Admin), Christian Concern sought judicial review of the approval decision of 30 March. The applicants presented eight grounds for judicial review, the most important of which were:

• that the decision was ultra vires the 1967 Act;
• that the decision had been contrary to the legislative purpose of the 1967 Act;
• that the decision had been irrational; and
• that because the approval was issued immediately after the proposed reform of the 1967 Act had been debated and rejected in Parliament on 25 March, and because Ministers had assured Parliament that no such reform would take place, the decision had been constitutionally and procedurally improper.

Singh LJ and Chamberlain J held that the proposed grounds for judicial review were not properly arguable and, accordingly, refused permission to bring a claim for judicial review. [With thanks to David Lamming.]

At the time of writing, an approved transcript of the judgment was not publicly available.

Note: David Lamming pointed out in a helpful e-mail that, although there can be an appeal against a refusal of permission to proceed with a claim for judicial review (and Christian Concern has indicated its intention to appeal), if the Court of Appeal does not allow the appeal and grant permission (whether or not it goes on to determine the substantive issue itself, or remits that to the Administrative Court) there cannot be a further appeal to the Supreme Court.  However, if permission to proceed is granted, even though the substantive JR challenge is then dismissed, there is the possibility of an ultimate appeal to the Supreme Court.