Published on 20 Apr 2011 Sections

Department of Health loses abortion secrecy bid

The Government has lost a legal battle to keep data on late-term abortions out of the public domain despite warning of “awful consequences” if women are identified.

The ProLife Alliance raised concerns that Ground E was being used to weed out babies with minor physical defects

Anti-abortion campaigners have hailed a ruling allowing the publication of information on late-term abortions as “a great victory for freedom of information” and dismissed concerns that it could lead to the identification of women who have had the procedure.

A High Court judge upheld the Information Tribunal’s decision to disclose data from national statistics to the anti-abortion ProLife Alliance after rejecting suggestions from the Department of Health (DoH) that the move could have “awful” consequences for patients.

James Eadie QC, for the DoH, said there was a danger the women could be identified if the data was put together with other information already in the public domain.

But Mr Justice Cranston said the tribunal had been entitled to conclude that the risk of identification was “extremely remote” and that the release of the material was “proportionate” and necessary to inform the public debate on abortion.

He backed its decision to reveal statistics on terminations carried out under Ground E of the Abortion Act – which makes it legal to abort a foetus after 24 weeks if there is a substantial risk of “serious” physical or mental abnormality.

“Late abortions currently performed for foetal anomaly are lawful and that doctors should be able to carry them out without intimidation.” Ann Furedi

The tribunal ruled that full disclosure would not contravene data protection principles and was not prohibited by section 40 of the 2000 Freedom of Information Act, which protects personal data from being released.

It stepped in after the DoH stopped releasing Ground E statistics where the number of abortions was less than ten because of the danger of women and their doctors being personally identified. Previously details had been given where the count was as low as one or two terminations.

The decision came two years after a Church of England vicar challenged the legality of the termination of a foetus with a cleft palate at 28 weeks.

Joanna Jepson, who was born with a cleft palate, lost the legal challenge and the doctors who performed the operation did not face criminal charges.

But the ProLife Alliance raised concerns that Ground E was being used to weed out babies with minor physical defects.

Mr Eadie said the tribunal’s original decision failed to protect women and their doctors against the “unwarranted” release of sensitive information, saying full disclosure should not take place “without the most compelling justification” because of the potentially “awful and ghastly consequences” of patients being identified.

Mr Justice Cranston rejected that argument but postponed the release of any data to allow time for an appeal against the decision. A DoH spokesman said: “The Department will now consider the implications of this judgment and the options available.”

“It has always been the case that the identity of women was kept out of any public data and we have never raised any objection on that point.”

Rejecting the DoH’s concerns over identification as an “excuse”, Paul Tully, the General Secretary of the Society for the Protection of Unborn Children, said: “The Department of Health was embarrassed by Joanna Jepson’s challenge and they reacted in this way to try to stifle information which is important to public understanding of policy and processes that are going on and will open debate about it.”

He added: “We feel that there should be full disclosure of information about the reasons for abortion. The idea of trying to suppress the data about the reasons for abortion is a very serious move that will not work in the interests of unborn children.

Josephine Quintavalle of the ProLife Alliance said: “The ProLife Alliance asked for the relevant information some six years ago. The judgment today went in our favour but there is every indication that the DoH will appeal. What is there to hide?”

British Pregnancy Advisory Service chief executive Ann Furedi said: “The real issue at stake is not how and when statistics are published, but that the late abortions currently performed for foetal anomaly are lawful and that doctors should be able to carry them out without intimidation. They are no one’s ‘dirty little secret’ and the doctors and nursing staff involved deserve admiration and support.”