What’s the difference between infanticide and an abortion at eight months’ gestation? This is one of the difficult questions thrown up by the grim case of Carla Foster, the mother who’s been jailed for 28 months (in practice, it’ll be half that) for inducing an abortion outside the legal limit using pills at home. Her foetus – or baby, as most of us would say – was 32 to 34 weeks old. That’s way past the stage of development where neonates who are wanted can survive.
The judge’s summing up was, in this case, lapidary. Justice Edward Pepperall makes clear that the evidence shows that Foster knew she was far more advanced in her pregnancy than the legal limit for an abortion in general, and a lot more advanced than the ten-week limit for the prescription of abortion drugs by telephone. She pretended to the British Pregnancy Advisory Service that she was less than two months pregnant; and because, as a result of Covid, abortion drugs could be provided without visiting a clinic, she was able to take mifepristone and misoprostol at home, with the result that Lily was stillborn.
This is a sad, wretched case
What this unhappy case shows is that the relaxation of the rules during Covid, since extended, is as unwise as pro-life groups said it would be. Women can get the gestational age of their baby wrong, wilfully or through ignorance. Any midwife, looking at this eight month-or-so pregnancy, wouldn’t be in any doubt that it was well advanced and the drugs would never have been made available to Foster.
Instead, this case has been seized on by interested groups to insist that administering abortifacients at home is just fine; the judge found himself lobbied by letter from ‘the president of the Royal College of Obstetricians and Gynaecologists, the chief executive of the Royal College of Midwives, the president of the Faculty of Sexual & Reproductive Healthcare, the president of the Faculty of Public Health, the chair of the Royal College of Obstetricians and Gynaecologists’ Abortion Taskforce, the clinical lead and a clinical representative for the Abortion Care Guideline developed by the National Institute for Health Care Excellence, and the co-chair of the British Society of Adoption and Care Providers’ who argued that the ‘successful introduction of the telemedicine option’ is one of the great advances in abortion provision since 1967.
Except, in this case, it was used to ensure that a baby girl was stillborn, six to eight weeks before what would have been her natural birth, but still qualifying comfortably for the status of ‘preterm’.
It does occur to me to wonder what medics would have said if the woman concerned had asked for the pregnancy to be induced under the supervision of medics, so the baby would have been born alive and could subsequently have been adopted. Safer for her and not lethal for Lily.
This is a sad, wretched case, but not a miscarriage of justice. And those feminists who would like to allow women abortions at any time they like should consider the question I put at the start: how do you distinguish between abortion that late, and infanticide?
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