Everything about the case of Carla Foster, the 44-year-old British woman who this week received a 28-month sentence for procuring drugs to terminate a pregnancy after the legal limit, is tragic.
The facts of the case make difficult reading. The court heard how, in the early months of the Covid-19 pandemic, Foster misled staff at the British Pregnancy Advisory Service during a remote consultation to prescribe abortion pills, suggesting her pregnancy was far less advanced than it actually was. The telemedicine scheme for abortion was introduced as an emergency lockdown measure for pregnancies in the first ten weeks; at the time she took the pills, Foster was 32-34 weeks pregnant. The legal limit for terminations in England is 24 weeks, unless the mother’s health is threatened or there is risk of severe abnormalities.
What Foster did is illegal. Her claims that she didn’t know how far along her pregnancy was were refuted by internet searches that show her looking for information on late-term terminations; as the judge remarked, “your culpability is high”. There has been horror at how far advanced her pregnancy was (a pre-term baby born at 32 weeks has a 95 per cent chance of survival), and the outcome – a stillbirth hours after she took the second of the two medical abortion pills – is undeniably awful.
Yet there is something horrific all the same about a woman being sent to prison for a decision she made out of desperation – concerning her capability to bear a child. And there are questions to answer – about the justification for prosecuting this case in the first place, about the need for a custodial sentence, and about whether the law is fit for purpose.
So many aspects of this particular case are especially harrowing. Foster is the mother of three children, one of whom has special needs. The decision to end her pregnancy came, as the judge acknowledged, “against the backdrop of the first and most intense phase of lockdown”. With social interaction criminalised overnight, Foster moved back in with her “estranged partner while carrying another man’s child”. (It is impossible to ignore the judgemental tone of that particular line in the sentencing remarks, or the following paragraph noting “evidence of emotionally unstable personality traits”.) It doesn’t take much in the way of empathy to imagine her predicament: first in denial and then panicking at her advancing pregnancy at a time of heightened national fear, while caring for three existing children and shut away from any kind of support network.
[See also: Annie Ernaux’s acts of revenge]
With that in mind, legal experts, including a former chief crown prosecutor, Nazir Afzal, have questioned whether it was in the public interest for the Crown Prosecution Service to proceed with this case. Foster’s story is unlikely to deter other women facing crisis pregnancies, and she is clearly not at risk of reoffending herself. Others have criticised the harshness of the 28-month sentence, especially after doctors and public health officials wrote to the court urging the judge not to impose prison time, warning that it would deter other women from seeking appropriate medical care. “Those are not the best sentencing remarks ever published, and the judge could and should have imposed a far lighter sentence,” tweeted the lawyer and legal commentator David Allen Green. The judge confusingly appeared to insist a custodial sentence was necessary, despite there being no sentencing guidelines, while also suggesting he would have suspended her sentence had she pled guilty earlier, enabling her to remain with her children.
As it is, Foster has been sentenced to 28 months, at least half of which she will spend in prison – longer, as the Labour MP Stella Creasy quickly noted, than the average prison sentence for violent assault. Given the UK’s scandalously low conviction rates for rape and sexual violence, Foster, who is “wracked by guilt” and poses no risk to society, will be punished far more harshly than most rapists who might then go on to reoffend. The message to women – that the decisions they make about their own bodies will be policed more strictly than the violence committed against them – is chillingly clear.
What is also clear is that the law as it stands is not fit for purpose. You do not need to believe, as some campaigners argue, that there should be no limits or regulations at all to see that there is something deeply wrong with criminalising desperation. As the criminal justice professor Emma Milne has pointed out, “No woman seeks to end a late-term pregnancy if she is not in crisis.”
Someone making such a drastic choice, whether they did not know or accept they were pregnant until too late, or whether their circumstances had changed, is by definition incredibly vulnerable. It is possible to have a legal system that acknowledges the rights of an unborn child after a certain point and regulates abortion without turning women in crisis into literal criminals. It is possible to have abortion limits while still recognising that it serves no one – not women, not doctors, not society and not even future babies – to lock someone away from her existing children for more than a year because, amid the intensity of the pandemic, she did not feel she could cope with another child.
Prior to this week, it was not generally known that England had never completely decriminalised abortion. Most people – even those who had themselves terminated pregnancies – would not have been aware that the 1861 Offences Against the Person Act was never repealed, and that the 1967 Abortion Act only provided certain exemptions. Nor is there widespread awareness of the “increase in the numbers of women and girls facing the trauma of lengthy police investigations and threatened with up to life imprisonment under our archaic abortion law”, to quote the statement the British Pregnancy Advisory Service put out following Foster’s sentencing. The battle over reproductive rights playing out in the US in the aftermath of the Supreme Court’s decision to overturn Roe vs Wade has not seemed relevant this side of the Atlantic.
Now, there are calls to review UK legislation and emulate Northern Ireland, which removed the threat of criminalisation for women ending pregnancies in 2020. MPs from across the political spectrum are starting to take note; there is a protest planned this Saturday at which women will march for their rights. Everything about this case is tragic. The one consolation is that maybe, just maybe, it could spur a much-needed change in the law and mean no desperate women facing impossible circumstances ever end up in prison again.