Abortion laws in the spotlight following Carla Foster sentencing

In the UK, abortion laws are in the spotlight following Carla Foster’s recent jailing. The mother-of-three induced a late-term abortion with medication intended for use in the first ten weeks of pregnancy. Her sentencing has put abortion laws under the microscope, with many arguing it demonstrates the need for urgent reform and decriminalisation.

The current abortion laws in the UK

In the UK, the abortion laws still in place today originate from the 1861 Offences Against the Person Act, whereby it is unlawful to procure a miscarriage using “poison”, “an instrument,” or “other means whatsoever” – those found guilty of doing so can be jailed for life. While the 1967 Abortion Act provided women with greater access to abortion, it did not fully legalise or decriminalise the procedure. The legal limit on abortion is now 24 weeks, and two medical doctors must sign off on it, agreeing that abortion presents less risk to a person’s physical or mental health than continuing with the pregnancy.

Terminations can only be performed after 24 weeks in a highly limited number of contexts; this includes if the mother’s life is at risk or if there’s a risk of a fatal fetal abnormality. These late-term abortions are also rare – abortion statistics from 2021 show that 89% of abortions were carried out under ten weeks. Research shows that no woman who has illegally ended her pregnancy at an early gestational stage has been prosecuted. Further, there have reportedly been 67 prosecutions in the last ten years under the 1861 Act.

Interestingly, there appears to be a gap in knowledge regarding abortion laws, too, even in healthcare. A study by the London School of Hygiene and Tropical Medicine (LSHTM), funded by the National Institute for Health and Care Research (NIHR), the NHS’s research arm, found that nearly a fifth of healthcare workers are unaware that abortion becomes a criminal offence if not approved by two doctors. This number is even greater among women in the general population, of which one-third were unaware.

The case of Carla Foster

During the pandemic, Carla Foster, a 44-year-old mother of three, procured abortion pills under the government’s “pills by post” scheme following a by-phone consultation where she told the British Pregnancy Advisory Service (BPAS) that she was just over seven weeks pregnant.

Foster had moved back in with her estranged partner, having become pregnant by another man, and was between 32 to 34 weeks pregnant when she took the pills. In the post-mortem examination of the baby, the cause of death was found to be stillbirth and maternal use of abortion drugs.

Court documents outline that by February, Foster, had known about her pregnancy for three months and, by the end of the month, was searching for abortion services. Her internet searches continued sporadically throughout March and April 2020. On 24 April, she searched, “I need to have an abortion, but I’m past 24 weeks.”

Considering the mitigating factors, such as the abortion taking place during the pandemic, the judge finding her to be a “good mother” to three children who would suffer from her imprisonment, and one of her children having special needs, the judge sentenced Foster to 28 months imprisonment, half of which will be served in prison.

Lawyers representing Foster submitted an appeal against the verdict, but this was rejected; they can, however, still take the case to the Court of Appeal.

The judge said that among the “many tragedies” in the case was that Foster, did not indicate her guilty plea at the earliest opportunity in the magistrates’ court. “Had that been done, the sentence of imprisonment that I am now obliged to pass would in law, have been capable of being suspended,” he said.

Revisiting and reforming “archaic” laws

Since the ruling, some have called for the UK’s abortion laws to be overhauled, and medical bodies such as the Royal College of Obstetricians and Gynaecologists, the Royal College of Midwives, and the Faculty of Sexual and Reproductive Healthcare, support this view. The president and CEO of the two former institutions, respectively, had also sent a letter, along with other eminent professionals, to the court, regarding this case. Together, they urged that a non-custodial sentence should have been issued and expressed concern that Foster’s imprisonment “might deter other women from accessing telemedical abortion services and other late-gestation women from seeking medical care or from being open and honest with medical professionals.”

The ruling has resulted in a huge amount of backlash, with a number of organisations coming out against the legal decision. British Pregnancy Advisory Service (BPAS) said it was “shocked and appalled” by the sentencing and referred to the law as “archaic.” Further, the Women’s Equality Party recently organised a protest march from the Royal Courts of Justice to Westminster; thousands marched for reform.

Elsewhere, Dame Diana Johnson, the chair of the Commons Home Affairs Committee, said the laws were outdated and to BBC Radio 4’s Today programme outlined that Parliament has a role in looking at reforming abortion laws. “There’s no other country in the world, as I understand it, that would criminalise a woman in this way. The Government should step up and say we should decriminalise, we should reform abortion law, take the criminal law out of this, but that doesn’t mean you don’t have regulation,” she said. Johnson has previously tried to repeal the 1861 law, and said that laws were having a “chilling” effect on doctors and midwives.

Women’s rights organisations have also pointed to the rise in the number of stillborns and miscarriages being investigated in recent years. Speaking about this, Jemima Olchawski, chief executive of Fawcett Society, said, when referencing another recent case involving a 15-year-old girl investigated under the 1861 law: “When we look at the prosecution for rape which is so devastatingly low, is it really the right choice and in the public interest to be investigating a 15 year old girl?”

There have also been calls to legalise abortion approval from nurses and midwives following the Shaping Abortion for Change (Sacha) study, the largest ever in the UK. Commenting on this, Louise McCudden, MSI Reproductive Choices’ UK advocacy and public affairs adviser, said: “Abortion is a common, safe, essential healthcare service, and it is unacceptable that today, women are still at risk of criminalisation under a Victorian law created in 1861. There is no reason it should require two doctors signing off every procedure and no reason it should sit within criminal law.”

McCuuden added: “It’s heartening to see such strong support for decriminalising abortion among health professionals. At this moment of renewed global focus on the importance of reproductive choice and abortion rights, now is the time to take abortion out of the criminal code.”

Despite calls from across the board to revisit abortion laws and pursue reform, the Prime Minister’s official spokesman recently stated that there are no plans to change abortion laws: “Through the Abortion Act, all women have access to safe abortions on the NHS up to 24 weeks, and we have made changes so that now includes taking abortion pills at home.

“We think this approach provides the right balance, and … there are no plans to change this,” they added.