What good will locking up Carla Foster do?

During the Covid-19 pandemic, a 44-year-old woman, Carla Foster, unlawfully aborted her unborn baby. She procured the necessary drugs from the British Pregnancy Advisory Service (BPAS) by leading them to believe her pregnancy was just over seven weeks in. In fact, she understood herself to be either 28 or 30 weeks in gestation. A post-mortem on her otherwise healthy baby girl, Lily, indicated the pregnancy was somewhere between 32 and 34 weeks. 

The Abortion Act 1967, as amended in 1990, sets 24 weeks as the upper time limit for lawfully obtaining an abortion in Great Britain, with exceptions where the woman is at risk of death or significant harm, or where serious foetal abnormalities are detected. However, the mifepristone-misoprostol combination Foster acquired is limited to use in the first ten weeks of pregnancy. As such, she was charged with child destruction, though eventually offered to plead guilty to an offence of administering poison with intent to procure a miscarriage. Yesterday, at Stoke-on-Trent Crown Court, she was sentenced to 28 months’ imprisonment and will serve half that time in custody and the remainder on licence. 

This is a sad, tragic case and no one involved will be any better for it becoming the latest battleground in the culture war. Which is why it is regrettable that, barely had Mr Justice Pepperall handed down his temperate, finely-balanced judgment, than Foster’s sentence was being framed as an attack on abortion rights.

Stella Creasy MP, who characterised Foster’s actions as having an abortion ‘without following correct procedures’, said the case showed the need for ‘urgent reform to make safe access for all women in England, Scotland and Wales a human right’. The Women’s Equality Party branded the sentence ‘cruel and utterly heartbreaking’ and said ‘no woman should go to prison for seeking healthcare’. BPAS declared itself ‘shocked and appalled’ and demanded MPs change the law. 

These responses reflect a hodge-podge of sincerity, emotion, disingenuousness and political calculation, as do those of people who say the court was right to jail Foster for her crime. Women’s reproductive rights and the law around gestational human life raise profound moral and ethical questions. However much we might try, it is almost impossible to conduct a truly dispassionate debate on these matters. This is no law school hypothetical. A real woman and her suffering lie at the heart of this case. 

How did that suffering come about? Until late 2018, a woman seeking a medical termination in England was required to attend a clinic to receive a dose of mifepristone, which suppresses the pregnancy hormone progesterone. Within 24 to 48 hours, she would return to receive misoprostol, which induces premature labour. In August 2018, health secretary Matt Hancock changed the rules so that misoprostol could be taken at home. When the pandemic hit, the rules were changed again to allow both drugs to be taken at home. Women wishing to terminate pregnancies shorter than ten weeks, which accounted for 86 per cent of all abortions in the first half of 2020, could have the drugs posted out to them after a telephone consultation. 

Foster’s pregnancy was much longer than ten weeks and she knew this. The court determined that in February 2020, having known about her pregnancy for three months, Foster began Googling ways to induce miscarriage and how to obtain an abortion once the pregnancy was beyond 24 weeks. Three months later, in May, she gave false answers in a telephone consultation with BPAS which presented her pregnancy as seven weeks and four days in length. The abortifacients were posted and she began taking them three days later. 

Hours after she took misoprostol, paramedics were called out but she gave them false information and they left, unaware she was pregnant. Two hours later, paramedics were called again and this time found Foster with a stillborn baby girl. All attempts at resuscitation proved futile. Foster claimed to doctors that she was unaware of her pregnancy. She then told a midwife she had taken abortifacients but that she believed she was in the early stages of pregnancy. Later, she told police she did not know how far along her pregnancy was, a position she ‘falsely maintained’ under questioning. 

In sentencing, the court drew on R v. Catt, a 2013 case in which a woman was sentenced to five years, reduced to three-and-a-half for her guilty plea. That case was more serious than this one, the woman there having taken abortifacients at full term and the child’s body never having been recovered. In Foster’s case, Mr Justice Pepperall set out the mitigating factors he had taken into consideration, including her age, lack of criminal history, and the context of lockdown. At the time of the offence, Foster had returned to live with an ex-partner who was not the father of the unborn child and she was trying to conceal the pregnancy from him. She was also, the court said, ‘a good mother to three children’, one of whom has special needs. She had shown ‘deep and genuine remorse’ and was suffering depression, nightmares and flashbacks. 

The court’s sentence was 28 months. As a layman, I can’t say whether this is reasonable or not. Comparing it with sentences handed down for very different crimes, as some are doing, is specious. What I would note is that the court said an earlier guilty plea could have allowed for a suspended sentence. Sentencing Council guidelines say imprisonment should be avoided for offenders ‘on the cusp of custody’ where the ‘impact on dependants’ would render the sentence ‘disproportionate’. I would have thought Foster’s imprisonment for over a year would have a very significant impact on her dependant children. Again, though, I have no education or training in the law.

For what it’s worth, I agree with Foster’s supporters that she should not be in prison today, albeit for different reasons. As a matter of principle, I think we send far too many people to prison and should substantially reduce our reliance on incarceration. I have written about the disgraceful conditions in which some female prisoners are kept. I believe that, except in the most extreme cases, no woman who is the mother or guardian of a child under 18 should be sent to prison. Where her child has special needs, the moral injustice of jailing a mother is many times more. Nothing in the record suggests Foster poses a threat to her children and, given her age, it is highly unlikely there could ever be a repeat offence. Her efforts to hide the pregnancy from an ex-lover she was back living with will, as the court accepted, have caused her ‘emotional turmoil’. 

It’s possible to acknowledge all this without descending into tiresome tropes about Gilead and trying to import US abortion extremism to a country which has maintained a pragmatic compromise for more than half a century. Foster did not have an abortion ‘without following correct procedures’, she unlawfully brought about the termination of her unborn baby far beyond the time limits set out in law. She has not been sent to prison ‘for seeking healthcare’ but for falsely obtaining drugs that caused a baby almost eight months into gestation to be stillborn. It was not seeking healthcare that brought about this grievous situation.

Even if the court had handed down a suspended sentence, I suspect that would have been met with much the same response. The objection is not really to the custodial term or its length but to the fact that the offence involved is an offence at all. Although we talk about abortion having been ‘decriminalised’ in 1967, the Act only created a legal defence from prosecution under certain circumstances. The law balances the interests of the woman against those of the unborn child and, where the circumstances set out in the Act are met, the woman’s interests prevail. There are those who want to change this so that abortion becomes purely a healthcare decision, not a criminal offence, and doctors providers of advice rather medical gatekeepers. A societal interest in protecting gestating human life would be replaced by a regime based on choice and bodily autonomy. 

If that is the way forward, it is not one indicated here. The evidence before the court suggested Foster knew of her pregnancy well within the timeframe for undergoing a medical abortion. While the pandemic reduced access to medical procedures, the 109,836 abortions completed in England and Wales in the first six months of 2020 was 4,296 higher than in the first half of 2019. In January, February and March, one-fifth of abortions were carried out surgically, which fell to 12 per cent in April, the first full month of pandemic restrictions. It is hard to imagine the anguish Foster was going through, but it is not accurate to say that either the law or lockdown prevented her from obtaining a lawful termination. 

There is a public interest in upholding the law and an ethical interest in asserting the value of incipient human life alongside the interests of a pregnant woman. However, I struggle to see how incarcerating Foster furthers these interests when set against the circumstances of the case and the likely impact on her and her children. That’s primarily an emotional reaction on my part, and certainly not a legal analysis, but I don’t think it’s an invalid response. What I do think is invalid is exploiting an exceptional set of facts like these to push a political agenda. Cases like this are thankfully rare and therefore an unwise basis on which to rush into a bout of Twitter-driven legislating.