Repeal the laws that criminalise abortion

The sentencing of 44-year-old mother of three Carla Foster to 28 months’ imprisonment for procuring an abortion has caused widespread outrage from many who had no idea that a woman in the UK could be sent to prison for an abortion-related crime. Last summer many of us watched the polarised debate following the US Supreme Court overturning the landmark Roe v Wade decision which had guaranteed a constitutional right to abortion.

Watching such debates and protests across the pond, like most who believe it is a woman’s right to choose, I had breathed a sigh of relief that I lived in a generally more progressive and compassionate country that regarded women as more than incubators for foetuses. In 1979, as a passionate young feminist embarking on a life of activism for women’s rights, I had joined protests against the Corrie Bill, which sought to restrict a woman’s right to abortion as enshrined in the 1967 Abortion Act.

In fact, abortion is not legal in Great Britain. But the 1967 act provides strictly regulated conditions under which a termination can be performed. An abortion must take place within 24 weeks of conception and be signed off by two doctors, ‘acting in good faith’, who agree that one (or more) of a set of restrictive grounds apply. These include that but for the termination there would be risk to the life of the woman or that she would suffer ‘grave permanent injury’ (mental or physical), or that if the child were born it would be seriously disabled. Thus our existing law is a long way from full decriminalisation.

In fact, we lag behind most countries in the world that allow abortion on request or for socio-economic reasons. Indeed, ironically, we are now significantly more restrictive than the traditionally conservative Northern Ireland, following an amendment to the NI (Executive Formation) Act passed in 2019. Laws criminalising abortion were immediately repealed and a moratorium on abortion-related criminal prosecutions came into effect.

In the rest of the UK women can still face prosecution (and a maximum of life imprisonment) for ending their own pregnancies if found guilty of committing one of three abortion-related offences. Under section 58 of Offences Against the Person Act 1861 (and common law equivalent in Scotland), it is an offence to procure a miscarriage. Under section 59 it is an offence to supply or procure any noxious substance or instrument with the intention to procure a miscarriage. Under the ‘born alive’ rule, the foetus has no separate legal rights until it draws breath and thus we have no foetal homicide offences. However, women have been prosecuted for ‘child destruction’ under section 1 of the Infant Life (Preservation) Act 1929, following a very late termination.

Such prosecutions are rare but there is evidence that police investigations into such offences are increasing. The explanation may be linked to the introduction of telemedicine for medical abortions introduced as an emergency measure during lockdowns when women were unable to access healthcare. This provided that women could access pills at home to end an unwanted pregnancy, provided the request was made within 10 weeks of pregnancy. The British Pregnancy Advisory Service, which administers this medication, has noted a significant increase in police requests for women’s medical records. It was while these emergency provisions were first put in place that Foster made the request for the medication which caused the termination of her pregnancy. She subsequently admitted she had lied about the gestation period, which led to her prosecution and eventual guilty plea.

Indeed, the foetus was aborted at an estimated 32-34 weeks and was certainly potentially viable had the baby been wanted. For some, the termination of the life of a foetus from conception onwards should be subject to criminal sanction. Many others argue that the termination of any viable pregnancy should be criminalised and as medical science advances the relevant period of gestation will become shorter. A number of European countries now have a 12-week time limit for legal abortion. Many other jurisdictions around the world have decriminalised abortion altogether.

The termination of a late-stage pregnancy is almost certainly likely to be extremely traumatic for the mother, as it reportedly was for Foster. No one in the abortion debate would positively welcome or affirm that such terminations are desirable. However, deterring late abortions by criminal prosecution and imprisonment is another matter.

As Dr Emma Milne (author of Criminal Justice responses to Maternal Filicide) has found in her research, women who seek to end pregnancies at a late stage will be experiencing a ‘crisis pregnancy’. These women are usually incredibly vulnerable, sometimes by reason of extreme poverty, often due to living in a context of violence and abuse. Many have a complicated obstetric history or a history of mental health problems. This crisis can lead a woman to conceal her pregnancy from others and deny it to herself. In desperation and panic, a woman in this situation may attempt to illegally end her pregnancy. In other equally tragic cases, a woman may find herself suddenly in labour. Sometimes the termination is forced by an undetected violent and controlling partner. In all these instances, women need support and care, but instead they face prosecution.

International human rights frameworks support the rights of women and girls to sexual and reproductive freedoms, including under Article 12 of the Convention on the Elimination of all forms of Discrimination against Women. The International Commission of Jurists has also endorsed the principle that no one should be held criminally liable for terminating their own pregnancy.

The reality is that widespread availability of contraception and abortion on request will obviate the need for almost all late-term abortions. In the relatively rare circumstances in which a woman terminates her pregnancy at a later stage, she should be provided with the necessary care and support to overcome the trauma. We need to repeal those laws that criminalise abortion. In the shorter term, the director of public prosecutions could provide guidance on the application of the public interest test on the prosecution of such cases (as has previously been provided on, for example, the right to die) and the Sentencing Council could provide guidance on sanctions which should fall short of custody as a remedy.

Harriet Wistrich is a solicitor and director at the Centre for Women’s Justice, London