Two of the country's leading judges yesterday paved the way for an important high court test case to examine the criteria necessary for an abortion to go ahead. In a decision which focuses on the human rights of foetuses and could undermine a law which supporters insist has served women well for 35 years, Lord Justice Rose and Mr Justice Jackson gave a Church of England curate permission to challenge a decision by police not to prosecute doctors who carried out an abortion on a foetus which had a cleft lip and palate.
Medical ethicists have warned that the case could have wider implications if as a result Parliament decides against setting new rules in other areas of medicine because it feels doctors cannot be trusted to follow them properly.
"It was quite clear in the 1990 parliamentary debate on amending the Abortion Act that the clause on late abortion must not be used for such trivial things as a cleft palate. If it [Parliament] decides that doctors cannot be trusted to keep to the rules it is setting in areas such as this, then it may in future decide not to set new rules at all," Richard Nicholson, editor of the Bulletin of Medical Ethics, said.
The Rev Joanna Jepson, curate of St Michael's church in Chester, believes the procedure at the centre of the controversy, which was carried out late in the pregnancy, was "unlawful killing" and in breach of the abortion law. She has said her legal action is partly an attack on the cult of perfection and claims that the case raises the "increasingly worrying concern of eugenics in our society".
The termination was carried out after the normal 24-week time limit, which is only allowed in circumstances where the pregnancy is likely to result in the baby being born with severe physical or mental disability. What constitutes a "severe abnormality" is not fully defined by the law and allows doctors to exercise clinical judgment as well as taking the mother's wishes into consideration.
Ms Jepson, who was born with a congenital jaw defect that was not corrected until her late teens, says a cleft palate is not a serious handicap and the law should not allow abortions for "trivial reasons". The Cleft Lip and Palate Association backed her case, saying it would never condone a termination at 24 weeks if a foetus was diagnosed with a cleft palate and had no other medical complications.
The Society for the Protection of the Unborn Child also endorsed the young cleric's campaign, which it suggested could be expanded to include all disabilities. "We would like to stress that we don't regard the right to life as dependent on any degree of handicap," the society's general secretary, Paul Tully, said.
But Ms Jepson's critics are concerned that the case could undermine the 1967 Abortion Act. "We are flabbergasted that someone with absolutely no connection to this case can be allowed to bring an action like this. It is absolutely no business of hers," a spokesman for Marie Stopes International said.
"Two doctors in consultation with this particular woman reached a conclusion that it did constitute a serious handicap. It should not be for a disgruntled member of the public to question what should be a very private decision between a woman and her doctors. We too would like to see a change in the law, but one which would allow abortion on request, thus removing this whole questioning of women about their motives."
The British Pregnancy Advisory Service also criticised the decision to allow the legal challenge to proceed. "When the law was passed it was deliberately left vague for the decision to be made between the woman and her doctors," a spokeswoman said.
Ms Jepson's initial application for a judicial review was rejected by a judge last month. But at the high court in London yesterday Lord Justice Rose and Mr Justice Jackson reversed that decision.
Mr Justice Jackson said the curate had "substantial hurdles" to overcome in the next stage of her application for judicial review. But he added: "I am persuaded, having listened to the statements of counsel, that this case does raise serious issues of law and issues of public importance."
The abortion at the centre of the case was carried out in 2001 when the unnamed woman, from Herefordshire, was more than 24 weeks pregnant.
Richard Gordon QC, for Ms Jepson, told the court the decision by West Mercia police not to prosecute was incompatible with a section of the Abortion Act which says that a post-24 week abortion can only take place if "there is substantial risk that if the child is born it would suffer from severe physical or mental disabilities".
The court was told that the force had taken advice from the Royal College of Obstetricians and Gynaecologists which said a cleft palate was a good enough reason for the abortion.
But Mr Gordon said a cleft palate could not be considered a "severe" disability within the meaning of the act.
Speaking after the hearing Ms Jepson, who insists she is not anti-abortion, said: "My teenage years were difficult due to facial abnormality. I also have a brother with Down's syndrome.
"We both live positive and fulfilling lives. The baby in this case did not have this opportunity, despite the availability of excellent and routine medical help. I hope we shall succeed at trial and recognise once again the value and dignity of our common humanity, disabled or able-bodied, no matter what we look like."
Risks to life and health that allow termination
The Abortion Act 1967
The act permits abortion by a doctor in an NHS hospital or approved centre. Two doctors must agree in good faith that one or more of the following criteria apply:
A The pregnancy involves more risk to the life of the woman than if the pregnancy were terminated;
B The termination is necessary to prevent grave permanent injury to the physical or mental health of the woman;
C The continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman;
D The continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of any existing child(ren) of the woman's family;
E There is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped; or in an emergency, certified by the operating practitioner, as immediately necessary:
F To save the life of the pregnant woman;
G To prevent grave permanent injury to the physical or mental health of the pregnant woman.
Most abortions of unwanted pregnancies are carried out under grounds C or D.
From the Office for National Statistics
"Chromosomal abnormalities were reported for about a third of cases under ground E, other congenital malformations for about half. The most commonly reported anomalies were of the nervous system (22%) and the cardiovascular system (5%); Down's syndrome(20%) was the most commonly reported chromosomal abnormality."
Human Fertilisation and Embryology Act 1990
Section 37 of the act changed the Abortion Act. It introduced a time limit of 24 weeks for grounds C and D. Grounds A, B and E are now without limit. Previously, a 28 week limit applied for all grounds.