On Tuesday, Carla Foster, who was jailed for terminating her pregnancy after the legal time limit last month, was told by the court of appeal that she would be released from prison after her 28-month sentence was halved and suspended.
The British Pregnancy Advisory Service (BPAS) says there are three more women accused of illegally ending their own pregnancies awaiting trial, adding that in the last three years there has been an increase in the number of women and girls facing police investigations and threatened with up to life imprisonment.
While campaigners welcomed the news that Foster, a 45-year-old mother of three, would now be reunited with her children, the case has done little to settle the debate about abortions carried out after the 24-week legal limit.
BPAS, the Royal College of Obstetricians and Gynaecologists (RCOG), the Faculty of Sexual and Reproductive Healthcare (FSRH) and women’s rights campaigners have long argued that women who end a pregnancy after the legal limit are in crisis, and that abortion should be regulated but decriminalised. They argue that the rest of the UK is out of step with Northern Ireland, where a 2019 law legalising abortion put a moratorium on abortion-related criminal prosecutions.
On the other side of the widening gulf, anti-abortion campaigners are using Foster’s case to argue that the “pills-by-post” scheme for abortion drugs implemented during the pandemic should be scrapped.
Although the 1967 Abortion Act legalises abortion in England, Wales and Scotland up to 24 weeks, the 1861 Offences Against the Person Act has never been repealed and no sentencing guidelines for the offence exist. Any woman who has an unregulated abortion can face up to life imprisonment.
The anti-abortion group Right to Life argues that repealing sections 58 and 59 of the 1861 Offences Against the Person Act in England and Wales would render the 1967 Abortion Act – which creates exemptions to those sections – redundant and mean that “abortion would be available on demand, for any reason, up to birth”.
Pro-choice campaigners say this is not true. If legislation was changed, strict legal and regulatory controls would still apply, drugs would be controlled, and only clinicians could perform surgical abortions. They argue that currently women – fearful of a prison sentence – risk putting themselves and their foetus in danger because they may avoid contact with medical professionals and have no access to alternative courses of action.
The Labour MP Harriet Harman says straightforward steps could be taken. She has written to the Sentencing Council, asking it to produce guidelines for judges. She plans to write to Max Hill KC, the director of public prosecutions, to urge him to tell prosecutors it is rarely in the public interest to prosecute such cases. BPAS, meanwhile, called on parliament “to take action and decriminalise abortion as a matter of urgency”.
But without the horror of seeing desperate women going to prison, what would happen to the decriminalisation campaign? Pro-choice campaigners are worried that the Labour frontbench is showing little appetite for the push; the government has said the matter is settled.
Dr Emma Milne, an associate professor in criminal law and criminal justice at Durham University, fears the decriminalisation campaign will stall. “Of course no one wants to see women behind bars,” she said. “But how do you build momentum around a campaign of ‘no woman should receive a suspended sentence for conduct during pregnancy’?”