British Pregnancy Advisory Service, R (on the application of) v The Secretary of State for Health and Social Care

For the time limit in section 1(1)(a) of the Abortion Act 1967, a pregnancy exceeds its twenty-fourth week at 24 weeks + 0 days. Clinical dating treats day 0 as the first day, so the twenty-fourth week runs from 23 weeks + 0 days to 23 weeks + 6 days, and the twenty-fifth week begins at 24 weeks + 0 days. That construction provides certainty for a penal provision and accords with accepted clinical practice and the related stillbirth-registration regime. Conflicting departmental guidance and publications did not establish a different legal construction. The appeal was dismissed.

British Pregnancy Advisory Service challenged a July 2018 letter from the Chief Medical Officer stating that abortions under the relevant statutory grounds could lawfully be performed only up to 23 weeks + 6 days. BPAS argued that the twenty-fourth week was not exceeded until 24 weeks + 1 day.

The Administrative Court, Supperstone J, dismissed the claim, holding that the statutory limit was exceeded at 24 weeks + 0 days: [2019] EWHC 1397 (Admin). The appeal concerned the correct construction of the words referring to a pregnancy not having exceeded its twenty-fourth week.

1. Appeal dismissed. The Court of Appeal upheld the construction adopted by Supperstone J. Lady Justice Simler and Lord Justice McCombe agreed with the judgment of Lady Justice Nicola Davies.
2. The words in section 1(1)(a) of the Abortion Act 1967 are plain English and do not bear a specialist meaning. The different wording of the Infant Life (Preservation) Act 1929 does not require a different result. Both enactments express the point at which the relevant week has been completed and the following week begins.
3. Pregnancy is clinically dated from the first day of the last menstrual period, treated as day 0. On that accepted convention, day 168 is 23 weeks + 6 days and day 169 is 24 weeks + 0 days. The latter is the first day of the twenty-fifth week, so the pregnancy has exceeded its twenty-fourth week.
4. The legal construction should be consistent with clinical practice. That consistency is particularly important because the provision is penal and uncertainty may expose women and medical practitioners to serious consequences. The related definition of a stillborn child in section 41 of the Births and Deaths Registration Act 1953 reinforced the same construction. Treating 24 weeks + 0 days as part of the twenty-fourth week could reclassify some pregnancy losses and affect registration and statutory entitlements.
5. Earlier departmental guidance and other publications showed conflicting interpretations but did not establish a settled legal construction. The Irish time limit in section 12(1) of the Health (Regulation of Termination of Pregnancy) Act 2018 did not assist because it was not based on the same statutory premise of foetal viability. The correct construction was therefore that the limit expired at 24 weeks + 0 days, commencing at midnight after 23 weeks + 6 days.

• Court of Appeal (Civil Division). The appeal was dismissed and the construction adopted below was upheld: [2020] EWCA Civ 355.
• Queen’s Bench Division, Administrative Court. Supperstone J dismissed the judicial review claim, holding that the statutory limit was exceeded at 24 weeks + 0 days: [2019] EWHC 1397 (Admin).