Senior MPs have urged Parliament to re-examine the “out-of-date” statute that was used to imprison a mother-of-three who illegally procured abortion pills to stop her pregnancy during lockdown.
The Conservative who chairs the Commons Women and Equalities Committee, Caroline Nokes, joined women’s rights organizations in pushing for changes to the 1861 law that Carla Foster was charged under.
The 44-year-old woman acknowledged to unlawfully obtaining her own abortion while she was between 32 and 34 weeks pregnant, and she was given a 28-month extended term as a result.
Abortions are often only performed in clinics after 10 weeks of pregnancy and are only legal up until 24 weeks.
The head of the Commons Home Affairs Committee, Dame Diana Johnson, encouraged the government to “step up” and decriminalize abortions so that women cannot be imprisoned in such circumstances.
Foster lied about how far along in her pregnancy she was during 2020’s pandemic lockdown, according to evidence presented at Stoke-on-Trent Crown Court. As a result, the British Pregnancy Advisory Service (BPAS) gave Foster the medications.
The prosecution said Foster made a number of internet searches between February and May 2020, including “how to hide a pregnancy bump”, “how to have an abortion without going to the doctor” and “how to lose a baby at six months”.
Foster first faced a charge of endangering children and entered a not guilty plea.
She later entered a plea of guilty to a different accusation under section 58 of the Offenses Against Person Act 1861, procuring an abortion by giving medications or employing devices, which was accepted by the prosecution.
The sentence has drawn criticism.
Ms Nokes told BBC Radio 4’s World Tonight programme: “This is not something that has been debated in any great detail for many years now.
“And cases like this, although tragic and fortunately very rare, do throw into stark relief that we are reliant on legislation that is very, very out of date.
“I think that makes a case for Parliament to start looking at this issue in detail.”
The current abortion rules, according to Dame Diana, have “moved on” both society and healthcare.
The Labour MP told BBC Radio 4’s Today programme: “I think Parliament has a role now to look at reforming our 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.”
Nazir Afzal, a former top crown prosecutor for the North West, added that it was not in the best interests of society to charge the mother of three.
Citing public feeling towards laws restricting abortions and her mitigating factors, he told Today: “Had I been involved, had I been doing this particular case, I would not have prosecuted it.
“This whole terrible event took place during the pandemic and people were making some terrible choices during that period that perhaps they regret now. And I think that’s one of the things I would have factored in in relation to this particular case.”
Director of the Centre for Women’s Justice Harriet Wistrich was one of several who questioned if the prosecution served the general welfare.
“What possible purpose is served in criminalising and imprisoning this woman, when at most she needs better access to healthcare and other support?” she said.
“She is clearly already traumatised by the experience and now her children will be left without their mother for over a year.
“When most forms of violence against women and girls go unpunished this sentence confirms our very worst fears about contemporary attitudes to women’s basic human rights and an utterly misdirected criminal justice system.”
Women’s human rights programme director at Amnesty International UK Chiara Capraro said the decision to prosecute was “shocking and quite frankly terrifying”.
“This is a tremendously sad story and underscores the desperate need for legal reform in relation to reproductive health,” she said.
BPAS chief executive Clare Murphy said “no woman can ever go through this again” and called for MPs to protect women in desperate circumstances so they are never threatened with prison.
“Vulnerable women in the most incredibly difficult of circumstances deserve more from our legal system,” she said.
The Crown Prosecution Service said the case was “complex and traumatic”, but said it has a duty to ensure laws are “properly considered and applied when making difficult charging decisions”.
Foster, who had three kids before falling pregnant once more in 2019, reportedly decided against seeing a doctor because she was “embarrassed” and had no idea how far along she was.
She met with a BPAS nurse practitioner in May 2020, and based on her responses, it was determined that she was only about seven weeks pregnant. She was then issued abortion pills through mail.
The child’s gestational age at birth was confirmed by a post-mortem study to be between 32 and 34 weeks.
Her stillbirth and mother usage of abortion-inducing medications were listed as causes of death.
Foster will serve the first 14 months of her sentence behind bars and the remaining time on parole.
Sentencing judge Mr Justice Pepperall said: “This case concerns one woman’s tragic and unlawful decision to obtain a very late abortion.
“The balance struck by the law between a woman’s reproductive rights and the rights of her unborn foetus is an emotive and often controversial issue. That is, however, a matter for Parliament and not for the courts.”