In England, Scotland, and Wales, it is illegal to induce an abortion after 23 weeks and 6 days of pregnancy . Carla Foster was sentenced to 28 months in prison for the crime of ending her pregnancy outside of the legal limit . She was later released from prison after winning a court of appeal effort to reduce her sentence .
How did this happen?
Abortion is a common and essential medical intervention, yet there remain stringent regulations regarding access to treatments in Great Britain, owing to the Offences Against the Person Act of 1861 which criminalises the obtaining of miscarriage, and the Infant Life (Preservation) Act of 1929, which criminalises child destruction . Across Great Britain, however, the Abortion Act (AA) 1967 remains in effect and deems abortion lawful when procured in compliance with conditions set out in section one of the AA 1967. The AA 1967 improved the legal accessibility of abortion in a broader range of circumstances and remains the foundational legislation for abortion access in Great Britain (England, Wales, and Scotland) today . Amendments to this decades-old legislation have been made only twice: once in 1990, and again in 2022. An increasingly expansive interpretation of the 1967 Abortion Act however, has generally increased abortion access for British people since the law’s inception . In order for abortion to be legal under the eyes of British law, the procedure must be performed by a doctor in an approved location (i.e. hospital or clinic). Changes to the law made during the COVID-19 pandemic in 2020 now allow for the provision of abortion medications to be administered at a place of residence before 10 weeks’ gestation .
Abortion medications have served to improve the safety of self-managed and at-home abortions, but the associated legal risks make them significantly more unsafe in cases where people feel unable to access emergency medical care in the event of complications .
The ending of pregnancy done with the intent to obtain a miscarriage outside of the conditions of the AA 1967 is illegal, and the pregnant individual or any person who assists, can face life imprisonment.
Abortion-permissive legal frameworks enable the provision of abortion, bound by specific restrictions. An abortion-permissive regime such as that operating in Great Britain has made some headway in improving access to abortion over time, but the aspects of such a regime that label it permissive rather than supportive of abortion have highlighted the potential of limiting and endangering safe access to abortion . Scholars of bioethics have emphasised the importance of access to abortion without legal risk, beyond a rudimentary legal right to abortion [4, 7, 8]. Here we can draw a key differentiation between access and rights, understanding that rights without access achieve fewer positive outcomes for people than access without rights. I differentiate between abortions rights and abortion access so as to highlight cases in which even within the context of abortion-permissive legal frameworks, barriers to access remain considerable and restrictive . Such barriers can be legal (i.e. procedural requirements that delay care, extra-legal barriers that make it impossible to access abortion through formal channels). Barriers often have the most considerable impact on socioeconomically disadvantaged or disabled individuals .
Miani and Razum (2021) argue that the fragility of abortion legislation in Europe is a ‘public health crisis in the making’. Across many European countries including Great Britain, abortion is accessible, but in many cases still a crime .
On Monday 12th June 2023, Carla Foster was sentenced to 28 months in prison after using abortion pills to terminate her pregnancy, under the Offences Against the Person Act of 1861. The legal maximum sentence for offences under the Offences Against the Person Act remains life imprisonment. This is the harshest abortion penalty in the world . The 44 year-old mother of three was prosecuted for the use of the ‘pills by post’ initiative outside of the legal period of 10 weeks’ gestation. Stoke on Trent crown court found that the individual had misled a British Pregnancy Advisory Service (BPAS) employee by claiming to be only seven weeks pregnant, when she was in fact between 32 and 24 weeks into her pregnancy .
The ‘crime’ committed occurred only a few months into the global pandemic when face-to-face support and medical advice was largely unavailable. Foster told the court that she had been unsure of the length of her pregnancy and had not consulted a doctor out of ‘embarrassment’, as she found herself pregnant and ‘in emotional turmoil’ as she tried to conceal the pregnancy .
While sentences like Foster’s are rare, the number of individuals being investigated by the police for the procurement of abortions have risen markedly over the last three years . In the face of such trends, pro-life groups across the globe have become further emboldened, particularly following the US Supreme Court’s decision in June 2022 to overturn Roe v. Wade. The battle over individual’s bodies has become strikingly apparent beyond the American context.
Where does this leave us?
Legal experts such as Nazir Afzal have critically questioned whether it was in the public interest to prosecute Carla Foster. Prior to sentencing, multiple doctors and public health officials urged the judge not to impose prison time at risk of deterring other women from seeking appropriate and necessary medical care in the future. Foster, who poses no risk to society, is now being punished far more harshly than most rapists in the country. This case clearly demonstrates the fact that current British legislation is not fit for purpose .
Carla Foster’s original sentence stipulated that she be imprisoned for longer than the average prison sentence for violent assault in the UK. Her case has illustrated the archaic, draconian laws that are still governing women’s bodies, and the reform needed within British legislation to ensure that no individual facing pregnancy in difficult circumstances is criminalised. Foster’s case has prompted renewed calls to reform the legal framework governing women’s bodies that predates women’s right to vote .
Abortion is a common and essential health intervention. Studies estimate that around 73 million induced abortions take place across the world every year . In 2022, the World Health Organisation (WHO) recommended against the use of legal and procedural barriers, including criminal law, to regulate access to abortion. Expansive evidence tells us that abortion is safer in jurisdictions where it is legally accessible, where individuals are significantly more likely to have access to higher quality care .
As a matter of health equity, expansive abortion rights must be guaranteed beyond merely permissive legislation. Legislative reform must happen soon to avoid a public health crisis through the control of individual’s bodies and restrictions to necessary medical procedures.
By Stella Elgood Field, Thrive Research Hub Member
MSI Reproductive Choices. Abortion and your rights.
Andersson and Seddon, 2023. BBC News. Senior Tory MP seeks abortion law rethink after mother jailed.
Topping, 2023. Woman jailed for taking abortion pills after time limit to be freed from prison. The Guardian.
Bearak et al. 2020. Unintended pregnancy and abortion by income, region, and the legal status of abortion: estimates from a comprehensive model for 1990–2019. The Lancet.
Sheldon, 1997. Beyond Control: Medical Power and Abortion Law.
Boyle and McEvoy, 1998. Putting abortion in its social context: Northern Irish women's experiences of abortion in England. Health.
Savulescu and Schuklenk, 2017. Doctors have no right to refuse medical assistance in dying, abortion or contraception. Bioethics.
Brerer, 2002. Making abortion a woman’s right worldwide. Reproductive Health Matters.
Parsons and Romanis, 2021. 2020 developments in the provision of early medical abortion by telemedicine in the UK. Health Policy.
Miani and Razum, 2021. The fragility of abortion access in Europe: a public health crisis in the making. The Lancet.
BPAS. Time To Act campaign. 2023.
Syed, 2023. As a Woman Is Jailed, U.K. Rights Advocates Call for Overhaul of Abortion Laws. TIME.
Addley, 2023. Wednesday briefing: The tragic case shining a light on the UK’s archaic abortion laws. The Guardian.
Cunliffe, 2023. The tragic case of Carla Foster shows why abortion should be decriminalised. The New Statesman.
Cumiskey, 2023. Carla Foster: women’s rights groups call for reform of ‘outdated’ abortion laws. Independent.
Romanis, 2023. Abortion access and the benefits and limitations of abortion-permissive legal frameworks: Lessons from the United Kingdom. Cambridge Quarterly of Healthcare Ethics.
World Health Organization. Abortion Care Guideline; 2022 Mar 8; available at https://www.who. int/publications/i/item/9789240039483