British police are testing women for abortion drugs and requesting data from menstrual tracking apps after unexplained pregnancy losses.
Tortoise has seen forensic reports in which police have requested a mass spectrometry test, which can detect the presence of the abortion drugs mifepristone and misoprostol in the urine, blood and placenta of women under investigation.
Other reports include requests for “data related to menstruation tracking applications” as part of the police’s investigations.
It’s understood these requests have been taking place for at least the past three years. Dr Jonathan Lord, co-chair of the British Society of Abortion Care Providers and an NHS consultant gynaecologist, called searching women’s phones for menstrual data “chilling and deeply intrusive”.
“We already know that police routinely remove phones and computers from women suspected of having an [illegal] abortion and it’s even happening following miscarriage and pregnancy loss,” Lord said. “This is damaging enough as it leaves women frightened and isolated immediately after suffering a substantial trauma.”
Lord told Tortoise he was aware of cases of blood tests being taken with the woman’s consent by NHS staff at the request of police, including, he said, “when women knew they were innocent after suffering an unexpected premature delivery”.
Even when the test finds no trace of abortion medication women can continue to remain under suspicion “as a negative test does not exclude earlier use of drugs”, he said. In that event, he argued, “the only motivation for testing is entrapment”.
Although abortion was legalised in England and Wales in 1967, the procedure is still criminal in specific circumstances.
Under Section 58 of the Offence Against the Person Act 1861, which carries a maximum life sentence, it is illegal for a woman to administer “poison” (abortion pills) with the intent to cause her own miscarriage after the 24-week legal limit.
Last month, the fifth woman this year appeared in an English court charged under Section 58, compared with only three previous prosecutions in the past 160 years.
In 2021, a teenage girl with an unexplained early stillbirth faced a year-long criminal investigation that examined her text messages and search history before police dropped the case. A coroner concluded the pregnancy ended because of natural causes.
In Poland, where there has been a near-total ban on legal abortion since 2020, there were concerns raised earlier this year in response to a state-funded study which reported forensic tests could be used to detect abortion pills in foetal and maternal samples.
A recent Human Rights Watch report found there were “sweeping and speculative” investigations of women in Poland – including those who had a legal medical abortion. The practice, it said, “can only be described as a witch hunt”.
Last month, the New York Times claimed tests to detect abortion drugs were being used in Poland “in rare cases” to investigate the outcomes of pregnancies, but that “these tests are not yet known to be in use anywhere else in the world”, including the US.
A spokesperson for AidAccess, which provides abortion pills by post to all 50 US states, said they were “not aware of toxicological tests for mifepristone and misoprostol being used in the US by police in any way yet” but they had heard of similar tests being used in Poland.
There has been a rise in cases of UK police investigating the procurement of illegal abortions in recent years, according to Home Office data. Campaigners say this constitutes grounds for repealing the 1861 law and replacing it with medical regulation.
“It can never be in the public interest to subject a woman to criminal investigation following a pregnancy loss. They ought to expect compassion and sympathy. Not only are these investigations desperately cruel but they’re also an enormous waste of police resources,” Lord said.
Two weeks ago, the UK’s Court of Appeal ruled that jail was “unlikely to be just” in the case of Carla Foster. The 45 year-old was initially sentenced earlier this year to 28 months in prison for illegally procuring abortion drugs while she was over 32 weeks pregnant.
Since 2020, women in England who are less than 10 weeks pregnant have been able to have a medical abortion – taking mifepristone and then misoprostol – in their home after a phone or face-to-face appointment with a doctor.
The College of Policing says it does not give specific guidance on whether to take samples from women being investigated after the unexpected death of an infant immediately after birth, and that it is for lead investigating officers to decide which lines of enquiry to follow, including whether to seek biological samples.
It is unlawful for health professionals to take samples of bodily fluids without the informed consent of the patient, according to Dr Sally Sheldon, a law professor at Bristol University. “For that consent to be valid, patients need to understand the nature and purpose of the procedure to which they are consenting.”
In the investigation of women after an unexplained pregnancy loss, she said “the woman would need to understand that blood or urine or placenta samples are to be used not for diagnostic purposes but in pursuit of a criminal investigation”.
Even if this is explained to the woman and they agree to a forensic analysis of samples, “given the nature of these cases, there are grounds for concern regarding whether her consent was truly valid and informed,” Dr Sheldon said.
After Roe v Wade was overturned in the US last summer, removing the constitutional right to an abortion, women were urged by activists and data privacy experts to delete period trackers over fears law enforcement could use the data to identify those seeking abortions.
One of the most popular period tracking apps, Clue, responded to these concerns by stating it “would not respond to any disclosure request or attempted subpoena” of their users’ health data by US authorities, or any authorities.
Other apps launched “anonymous mode” which removed identifiable user information, or implemented end-to-end encryption of users’ data.
Dr Allison Holmes, Lecturer in Law at the University of Kent told Tortoise she was not surprised to hear menstrual app data was being requested by UK police when investigating suspected illegal abortions, based on her research into the treatment of victims’ phones in sexual offence investigations.
The UK Home Office was approached but did not comment.
The National Police Chiefs’ Council was approached for comment but had not responded at the time of publication.
This article was updated after publication to clarify current College of Policing guidance.