R. v. Foster: Reigniting the UK Abortion Law Debate

17 July 2023 by Guest Contributor

Last month marked one year since the startling repeal of Roe v Wade on the 24^th June 2022 – the day the US Supreme Court rowed back the right of American women to obtain an abortion. Almost exactly a year later, back in the UK, last month saw the conviction of Carla Foster for the late abortion of her 32-week-old foetus. The case has brought abortion law back into the public conscience this year and reignited the fears around the safety of women’s rights to abortion in the UK. Thousands of protestors descended on the steps of the Royal Courts of Justice days after the conviction was announced, fighting for a woman’s right to abortion to be enshrined in UK law and opposing the fact that, legally, abortion remains a crime in the UK.

Carla Foster’s case has given credence to warnings by some pro-life groups, such as Christian Concern, who have argued against the provision of at-home abortifacient drugs on the grounds that any such system is liable to be abused. Christian Concern even applied for a Judicial Review of the government’s decision to allow at-home medical abortions (Christian Concern v SSHSC),^[1] raising concerns that such groups will leverage this new case in lobbying the government to restrict abortion access.^[2]

What is the Status of Abortion under UK Law?

Put succinctly by the House of Commons Science and Technology Committee, ‘the 1967 Abortion Act did not make abortion legal, but conferred upon doctors a defence against illegality’.^[3] Abortion is a crime under both the Offences Against the Person Act (OAPA) and the Preservation of Infant Life Act, with corresponding lawful grounds provided for; as such, there is no absolute right to abortion under British law. Though there has been a lot of noise in the media regarding Foster’s prosecution under a ‘Victorian’ or ‘archaic’ law, the age of OAPA does not in and of itself have any bearing on the relevance or worth of the legislation – especially considering the same legislation prohibits battery and GBH. There is, however, a conversation to be had about how these laws are being enforced in the modern day.

The 1967 Abortion Act, valid in England and Wales, stops criminal charges from being brought under OAPA for abortion if certain exceptions apply. Though there are multiple grounds under which abortion can be lawfully performed, government statistics show that over 98% of abortions are performed under Section 1(1)(a) of the act.^[4]Section 1(1)(a) allows abortion in cases where ‘an abortion would involve less risk to the physical or mental health of the mother than the continuation of the pregnancy’, provided the pregnancy is before 24 weeks gestation and it has been approved by two doctors. In the first trimester, due to the risks of pregnancy and childbirth, it is almost always the case by definition that abortion is less risky than carrying the pregnancy to term. The British Medical Association (BMA) take the view that in practice, few, if any, women will fail to meet the medical criteria in the first trimester, rendering first trimester abortion effectively decriminalised.^[5] There is no way to avoid the question, then, of why abortion is illegal at all; the BMA noted this, calling for first trimester abortion to be available on an informed consent basis like every other medical procedure.^[6]

Though former Justice Secretary Dominic Raab expressed the view just last year that UK abortion law is a ‘settled’ matter,^[7] it’s worth noting that even within the UK, we don’t have a consistent legal framework towards abortion. In Northern Ireland, there is a human-rights based right to abortion. Unlike in England and Wales, where legal abortion is considered an exception or legal defence to s58 and s59 OAPA, s9 of the Northern Ireland Executive Formation Act passed by Westminster in 2019 repealed this legislation and created a new human rights-based framework for abortion law. Dame Diana Johnson, who has previously attempted to reform OAPA with a backbench bill,^[8]highlighted this discrepancy in Parliament last week, also noting the moratorium on abortion-related prosecutions in Northern Ireland.^[9] There is little doubt that the inconsistency in abortion legislation (and therefore women’s rights) across the UK is problematic, leading to calls to bring English legislation in line with the Northern Irish framework.  Since Westminster were able to – and actively sought to – establish this right in Northern Irish law, advocates are arguing for its replication in England and Wales. This move would add a further level of protection to a woman’s legal right to an abortion in the UK. 

R. v. Carla Foster

The case last month that caught the country’s attention concerned Carla Foster, who, in the first weeks of lockdown, triggered a late-term abortion using the ‘pills by post’ scheme. She intentionally misled the British Pregnancy Advice Service (BPAS) in order to secure the drugs by indicating to them that she was only 7 weeks pregnant, rather than 32. Despite calling the ambulance immediately, the baby had been stillborn by the time paramedics arrived at the scene. Many are now learning that this is not an isolated case in the UK; last year, another woman was tried under the same grounds of ‘administering poison with intent to procure a miscarriage’ (s58 OAPA 1861) after she also took abortion-inducing drugs at home. In fact, Stella Creasy MP announced in Parliament during the aftermath of the media storm that there have been 67 prosecutions under this legislation in the last decade alone.^[10]

Mr Justice Pepperall sentenced Ms Foster to 28 months, a minimum of 14 spent in custody. This sentence narrowly misses the limit to qualify for a suspended sentence, despite the consideration of mitigating factors ranging from her caring responsibilities for three other young children to her the extent of her remorse. Given that the average custodial sentence for violence against the person is 18.5 months,^[11] Ms Foster’s sentence can easily be seen as harsh, though Pepperall J pointed out the problematic lack of any sentencing guidelines for the offence in his sentencing remarks. Instead, a single precedent from the Court of Appeal – R v Catt (2013), a similar case in which a woman at full-term pregnancy self-administered abortifacient drugs illegally obtained online – was used to determine the sentence. 

Whether or not Judge Pepperall should, or even could, have reduced the sentence in order for Ms Foster to qualify for a suspended sentence is a polarising question of personal opinion.  A letter sent to the court in April signed by various reproductive rights organisations urged the Judge not to impose a custodial sentence, and the public outrage would suggest many members of the public agreed. Since the CPS is responsible for only pursuing prosecutions ‘in the public interest’, can it be argued they shouldn’t pursue these cases? Or is it sensible to go further, and argue that the law itself should be brought in line with the public perception of abortion in the UK and fully decriminalised before 24 weeks?

The Case for Reform

Though the ethical case for reform is well established, there is also a legal case. Most abortion cases are brought to the European Court of Human Rights under Article 8 of the convention: the right to respect for private and family life, with Strasbourg case law supporting the idea that stringent restriction of abortion access is in violation of this right (Tysiac v Poland, ABC v Ireland). Article 8(2) ECHR demands that any interference with this right be both justified and necessary. Rosamund Scott, barrister and Professor of Medical Law, argues that since all women automatically meet the criteria for legal abortion under Section 1(1)(a) of the Abortion Act (1967) before 24 weeks, the criminalisation of abortion during this time period (with corresponding lawful grounds) is unnecessary, and therefore fails the test of necessity for Article 8 interference.^[12] This would put the UK in contravention of the protection under Article 8 ECHR of a woman’s right to respect for her private life, and would necessitate legal reform. This is, however, an academic argument – the lack of JR or ECHR cases concerning the inadequacy of the UK’s legislation may suggest that practical issues with the potentially contravening legislation are rare since it has never been litigated to final resolution.  

There is a growing legal consensus that not only is the current legislation around abortion incompatible with ECHR, but also that it is impractical and outdated. There’s a question as to whether current legislation is leading to prosecutions not in the public interest; the chief executive of gender equality charity the Fawcett Society, Jemima Olchawski, has asked whether ‘it is really […] in the public interest’ to investigate women for abortions and miscarriages when ‘prosecutions for rape are so devastatingly low’.^[13]

It is important to note that the case for decriminalising abortion before 24 weeks would not exonerate Ms Foster, or legalise late-term abortions. Her actions would still be illegal, and in the eyes of many, rightfully so. Despite this, concerns echoed by both Alison Thewliss MP and Dame Diana Johnson suggest Ms Foster’s imprisonment could have a ‘chilling effect’ on abortion access in the UK, generating anxiety for both women and providers; a particularly salient concern following the notable recent erosions of abortion access in Poland and the USA. Baroness Helena Kennedy KC, a leading barrister and vocal advocate of law reform for women, has joined calls for the instantiation of a right to abortion before 24 weeks^[14] while warning of the dangers of trying to legislate when emotions are high. 

It is clear that the true picture of UK abortion law is at odds with public perception. A complex case has sparked a complex conversation, and it’s likely the hot topic of UK abortion law reform will persist. Perhaps it would be a debate best tackled head-on, but no discussion should be expected soon: ‘we believe [the current system] provides the right balance’, stated a spokesperson for Prime Minister Rishi Sunak. ‘There are no plans to change this’.^[15]

Update 18 July 2023:

On Tuesday 18th July, the Court of Appeal (Criminal Division) allowed Carla Foster’s appeal against her sentence. Though the Court stated that they believed the custody threshold was passed, they held that the mitigation in her case was ‘exceptionally strong’ and reduced the sentence from 28 to 14 months. It was also decided the sentence should be suspended, allowing her immediate release from custody. 

Giving judgment for the Court, Dame Victoria Sharp stated that Ms Foster needs ‘compassion, not punishment.’ In such a sad and complex case, this decision is welcomed. However, it must be noted that it does not alter the criminal position of abortion in UK law, which remains as set out in the original blog post. It is hoped that the extensive discourse surrounding Ms Foster’s case will publicise the need for legal reform, and may, with luck, begin to generate further political interest in modernising abortion law. 

Catherine Churchill is a PGDL student and aspiring barrister

^[1] https://www.judiciary.uk/wp-content/uploads/2020/09/R-Christian-Concern-v-SSHSC-judgment.pdf

^[2] Melanie McDonagh, The Spectator. ‘Carla Foster’s Case isn’t a Miscarriage of Justice’

^[3] https://publications.parliament.uk/pa/cm200607/cmselect/cmsctech/1045/1045i.pdf

^[4] https://gov.uk/government/statistics/abortion-statistics-for-england-and-wales-2021/abortion-statistics-england-and-wales-2021

^[5] https://www.bma.org.uk/media/3307/bma-the-law-and-ethics-of-abortion-report-march-2023-final-web.pdf

^[6] Ibid

^[7] https://www.bbc.co.uk/news/uk-politics-61981988

^[8] https://healthpolicy-watch.news/uk-woman-jailed-under-1861-abortion-law/

^[9] https://hansard.parliament.uk/commons/2023-06-15/debates/E4D63B08-4128-46D3-AFCD-EF8D377275EC/AbortionOffencesAgainstThePersonAct

^[10] Ibid

^[11] Ministry of Justice Criminal Justice Statistics quarterly: March 2021

^[12] Scott, Rosamund. 2015. Risks, Reasons, & Rights: The European Convention on Human Rights and English Abortion Law. Medical Law Review, Vol 24, pp. 1-33

^[13] https://www.bigissue.com/news/activism/thousands-march-abortion-reform-in-london-on-saturday/

^[14] https://www.ft.com/content/9cc4e217-196b-41c1-8918-0c1dad3d5122

^[15] https://www.itv.com/thismorning/articles/no-plans-for-abortion-law-reforms-following-backlash-over-jailed-mother

^[1] https://publications.parliament.uk/pa/cm200607/cmselect/cmsctech/1045/1045i.pdf

^[2] https://gov.uk/government/statistics/abortion-statistics-for-england-and-wales-2021/abortion-statistics-england-and-wales-2021

^[3] https://www.bma.org.uk/media/3307/bma-the-law-and-ethics-of-abortion-report-march-2023-final-web.pdf

^[4] Ibid

^[1] https://www.judiciary.uk/wp-content/uploads/2020/09/R-Christian-Concern-v-SSHSC-judgment.pdf

^[2] Melanie McDonagh, The Spectator. ‘Carla Foster’s Case isn’t a Miscarriage of Justice’