Carla Foster’s fate shows the need to reform Britain’s abortion laws

Carla Foster spent last night in a prison cell. In 2020, after having obtained abortion pills under false pretences, the 44-year-old mother of three terminated her pregnancy at between 32 and 34 weeks gestation. This week, she was found guilty under section 58 of the Offences Against the Person Act 1861 for administering drugs or using instruments to procure abortion. She has been sentenced to two years in prison.

Foster’s imprisonment has sparked shock and anger among commentators, campaigners and politicians.

‘There is a mechanism the government can use to show mercy to women convicted today for having an abortion – it’s a royal prerogative and was last used in 2020,’ tweeted Labour’s Stella Creasy. I share Creasy’s hope that ministers act quickly to have Foster freed. It is difficult to see how her incarceration does anything other than make an already horrible situation even worse.

We cannot know what was going through Foster’s mind when she sought to end her pregnancy. The rarity of such events suggests it was an act of extreme desperation carried out in highly unusual circumstances. As the judge in the case, Justice Edward Pepperall notes in his sentencing remarks, ‘This offence was committed against the backdrop of the first and most intense phase of lockdown at the start of the Covid-19 pandemic.’

With doctors’ surgeries all but closed, accessing routine pregnancy testing and regular abortion provision was far more challenging than normal. Even if Foster had managed to secure a face-to-face medical appointment, it is possible she may have had to have brought her three children along with her or had to explain to her partner where she was going and why.

It was in recognition of these difficulties that the government launched its ‘pills by post’ initiative, allowing women up to ten-weeks pregnant to secure abortion pills to take at home without the need for a face-to-face appointment. Women were, for the first time, able to safely and conveniently abort an unwanted fetus in the earliest stages of pregnancy. Much to the consternation of anti-abortion activists, this service remains in place today.

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Foster lied to secure abortion pills when she was beyond the ten-week legal cut off point. She has since said: ‘No one has the right to judge you because no one knows what you’ve been through’. She is right. Only a pregnant woman knows whether she is physically, mentally, financially and practically able to raise a child. As Justice Pepperall notes, ‘Forced to stay at home, you moved back in with your longterm but estranged partner while carrying another man’s child. You were, I accept, in emotional turmoil as you sought to hide the pregnancy.’

Pepperall acknowledged that Foster feels ‘very deep and genuine remorse’ for her actions. He described her as being ‘racked with guilt’ and still having nightmares about her experience. Yet the law seems to have left Pepperall with little option other than to sentence Foster to imprisonment.

It is hard to see what purpose incarceration serves in this case. As a punishment, a prison sentence can hardly be worse for Foster than the mental torture to which she seems to be subjecting herself. Worse, imprisoning Foster punishes her sons, one of whom is reported to have special needs. It will no doubt be very tough on these blameless young boys to be without their mum for such a long time.

Alternatively, prison might be thought of as a deterrent to other women tempted by a similar course of action. But Foster’s circumstances seem to have been so unique – lockdown, the presence of her other children, her complicated relationship with her partner and another man – that it seems highly unlikely another woman could find herself in this exact situation.

Serving as neither punishment nor deterrent, Foster’s prison sentence seems especially cruel. A compassionate society that truly respected women’s bodily autonomy, and placed the rights of existing human life above potential life, would not deliver such a sentence.

The barbarity of imprisoning Foster was recognised before her punishment was handed down. Justice Pepperall notes that he had, unusually, received a letter from healthcare professionals including the president of the Royal College of Obstetricians and Gynaecologists and the chief executive of the Royal College of Midwives asking him not to incarcerate Foster.

The letter was well-intentioned but mis-directed. As Justice Pepperall notes, abortions are deemed a criminal act in England, Scotland, and Wales under the 1967 Abortion Act. On top of this, legislation dating back to 1861 decrees that any woman who ends a pregnancy without two doctors having agreed that continuing with it would be a risk to the woman’s physical or mental health, can face up to life imprisonment. In Northern Ireland, abortion has been decriminalised since 2019.

Politicians from across the political spectrum agree that reform is long overdue. Labour’s Stella Creasy tweeted:

‘We need urgent reform to make safe access for all women in England, Scotland and Wales a human right.’

Dame Diana Johnson, the chair of the Commons Home Affairs Committee, urged the government to ‘step up’ and decriminalise abortions. Caroline Nokes, the Conservative chair of the Commons Women and Equalities Committee, has also called for reform to the 1861 legislation.

Stella Creasy is right: abortion should be about healthcare and not criminality. For too long, abortion provision in Britain has been marked by compromises and tacit understandings. Neither side has wanted to open the topic up for debate. As Foster’s case shows, we cannot carry on like this.

But, as Justice Pepperall notes, the proper place to tie up the loose ends of the 1967 Abortion Act is in parliament and in the public realm of politics, not in the courtroom. Foster’s imprisonment is an inhumane response to a tragic set of circumstances. Her sentence should be overturned immediately but, in the long term, we need political changes to ensure no similar case can ever arise.