A woman’s sentencing to prison this week for illegally using abortion pills to end a 32- to 34-week pregnancy is prompting a debate in England over the state of its abortion laws and whether a woman should ever be prosecuted for the procedure.
Adding to the debate is the fact that she was prosecuted under a law more than 160 years old. Some say that the law is too draconian, while others say the case illustrates the dangers of allowing abortion pills to be sent by mail.
What happened in the case?
On Monday, a court in Stoke-on-Trent, a city in central England, sentenced Carla Foster, 44, to 28 months for having caused her own miscarriage by taking abortion pills when she was in her eighth month of pregnancy.
The sentence includes up to 14 months in prison, after which she could serve the rest of her term on release if she meets certain conditions.
In early 2020, during the coronavirus pandemic, Ms. Foster, a mother of three, had moved back in with her long-term but estranged partner after becoming pregnant by another man, according to court documents.
The judge, Edward Brian Pepperall, wrote in his sentencing remarks that Ms. Foster had been in emotional turmoil as she sought to hide the pregnancy. She also repeatedly searched online for information about how to terminate her pregnancy in the first months of 2020, according to the judge.
That May, she obtained abortion drugs by mail after giving false information to Britain’s pregnancy advisory service, the judge wrote. Although abortion pills are available by mail through the service in the first 10 weeks of pregnancy, Ms. Foster’s internet searches indicated that she knew she was more than 24 weeks pregnant, the legal limit for most abortions, the court documents said.
Shortly after she took the drugs, her pregnancy ended in a stillbirth, according to the court. Paramedics were on the scene, and Ms. Foster told them that she understood that she would be required to speak to the police.
A post-mortem examination confirmed that the pregnancy was between 32 and 34 weeks, the judge wrote. A full-term pregnancy is about 40 weeks, or nine months.
Ms. Foster initially pleaded not guilty, but this March she pleaded guilty to a charge of “administering poison with intent to procure a miscarriage.”
The judge wrote in his decision that Ms. Foster was a good mother to her three children, including one with special needs, and he acknowledged that they would suffer from their mother’s imprisonment.
In handing down the sentence, the judge wrote, “The balance struck by the law between a woman’s reproductive rights and the rights of her unborn fetus is an emotive and often controversial issue.”
What are England’s abortion laws?
Abortion has been legal in England, Scotland and Wales since the Abortion Act of 1967, and access to the procedure is generally liberal, experts said.
Abortions are allowed in the first 24 weeks of pregnancy and must be approved by two doctors.
In the first 10 weeks, women can get an abortion by having two drugs prescribed to them, which in earlier years would have typically required a visit to a clinic. During the pandemic, when securing in-person services became both difficult and dangerous, the British government ruled that the drugs could be provided without an in-person appointment.
That decision was made permanent last August.
Later-term abortions are allowed in some exceptional cases, including when the woman’s health is in danger or in some cases of fetal abnormality.
Yet when Parliament passed the 1967 legislation allowing for abortions, it did not repeal an earlier law that had criminalized them. In rare cases, therefore, abortion can still be prosecuted as a criminal act.
Under a law passed in 1861, any woman who takes “poison” with an intent to cause her own fetus’s miscarriage “shall be guilty of felony” and liable “to be kept in penal servitude for life.”
That was the law under which Ms. Foster was sentenced, and hers is not an isolated case.
In his ruling, Judge Pepperall cited a 2013 decision in which a British court sentenced a woman to three and a half years in prison for causing her own miscarriage while about 38 weeks pregnant. And Stella Creasy, a lawmaker in the opposition Labour Party, said on BBC Two’s “Newsnight” current-affairs show on Monday that there had been 67 investigations under the 1861 act in the past decade.
What were the calls for decriminalization?
Caroline Nokes, a lawmaker in the governing Conservative Party who chairs the Women and Equalities Committee in the House of Commons, told the BBC after the court’s ruling that England was “relying on legislation that is very out of date.”
She said the sentencing “makes a case for Parliament to start looking at this issue in detail.”
Louise McCudden, the head of external affairs at MSI Reproductive Choices, a Britain-based women’s health organization, said in an interview that even if prosecution was rare, the law must be changed.
“Any case is too many,” she said.
Ms. Creasy, the Labour lawmaker, told BBC Two’s “Newsnight” that “Abortion is a health care issue, not a criminal matter.”
What were the calls for tighter rules?
Groups that campaign against abortion argued that the case illustrated the tragic consequences of the government’s decision to allow abortion pills to be sent by mail. They also said that Parliament should act based on the case, by further restricting the procedure.
“The government should urgently turn back the clock and end this disastrous policy of cheap, convenient, pills-by-post abortions,” Andrea Williams, the chief executive of Christian Concern, an advocacy group, said in a statement.
“At 32 weeks’ gestation, an unborn baby has a 95 percent chance of survival if delivered,” she added. “Our abortion law rightly recognizes that these precious humans deserve protection.”
James Mumford, an author who studies political theology, modern Catholic social thought, and bioethics, told BBC Two’s “Newsnight” on Monday that England had an “extreme abortion-on-demand culture.”
He called Ms. Foster’s case a natural consequence of making abortion pills available by mail, which he called an “utter disaster.”
What did medical experts say?
Some medical professionals also lobbied against sending Ms. Foster to prison, a penalty that they said might discourage other women from seeking access to abortion pills at home.
The court said it had received a letter from the president of the Royal College of Obstetricians and Gynecologists as well as other medical bodies urging a noncustodial sentence.
The judge responded that it was inappropriate for medical professionals to send such a letter, and that if they disagreed with the law, they should lobby Parliament to change it rather than judges who are charged with applying it.
