How should society treat a woman who desperately doesn’t want to have a child?
For she was evidently desperate, the 44-year-old mother of three children – one of whom has additional needs – jailed on Monday for the 19th-century crime of procuring her own miscarriage. The court heard that she must have known for months that she was expecting; that having moved back in during lockdown with her estranged ex while pregnant with another man’s child, she’d furtively Googled both how to conceal a pregnancy and how to end one, agonising over the decision for weeks.
In the end she obtained abortion drugs from the British Pregnancy Advisory Service (BPAS) under a lockdown measure allowing for remote consultations without attending a clinic, intended solely for women less than 10 weeks pregnant. Police were called after she delivered a stillborn daughter aged between 32 and 34 weeks – well beyond the 24-week limit for an abortion, except in cases of severe foetal abnormality or serious risk to the mother, and old enough to be viable. She still, the court heard, has nightmares in which she sees her dead child’s face.
Mr Justice Pepperall noted that all this happened in the “first and most intense stage of lockdown”, a time when many parents of young children felt close to snapping; that she remains racked with guilt. But still, he concluded, she knew full well she was over the legal limit and she lied. Had she pleaded guilty from the start, she might have got a suspended sentence, but instead she got 28 months.
It’s a distressing end to a distressing case for which prison simply doesn’t feel like the answer. Her three children, the court heard, rely on her. What earthly purpose is served by separating them from their mother when she poses no conceivable threat to the general public? The law is the law, of course, but in this case it seems a particularly heartless ass.
What makes all this disturbing for many women, meanwhile, is that it exposes the surprisingly slender thread from which our reproductive rights hang. You might think abortion was decriminalised in England, Scotland and Wales back in 1967, but you’d be wrong: essentially David Steel’s landmark bill merely created a defence to something that’s still a crime (under the 1861 Offences Against the Person Act in England and Wales and under common law in Scotland; the exception, ironically, is Northern Ireland, once the most draconian of all, but which recently decriminalised abortion up to 12 weeks if a doctor certifies the duration of pregnancy). And this isn’t the only case in which those ancient laws have been invoked.
In 2021, a 15-year-old girl faced a year-long criminal investigation over an unexplained stillbirth, which ended only after a coroner ruled her loss was due to natural causes. In 2016, a 21-year-old Northern Irish woman received a suspended sentence after being reported to police by her housemates for buying abortion drugs online. Last year in Oxford, the prosecution withdrew its case against a woman whose baby had survived her taking a dose of the stomach ulcer drug misoprostol, which is also used as an abortifacient: she said she’d previously been prescribed it by a doctor in Portugal and had taken it accidentally, mistaking it for anti-thrush tablets.
BPAS points out that it’s vulnerable women – such as migrants unsure of their rights on the NHS, or women terrified of their abusive partners knowing they’ve ended a pregnancy – who may be more likely to fall foul of the law. Some doctors, meanwhile, fear that involving the courts may dissuade women who miscarry (for whatever reason) from seeking medical help, with the Royal College of Obstetricians and Gynaecologists arguing that prosecution is not in the broader public interest.
Britain is not the US, as we must periodically remind ourselves: we lack the religious fervour animating America’s culture wars and so abortion never became a partisan political issue here. It’s outdated law, not politicians trying to recreate Gilead, driving these prosecutions. That said, only parliament can tackle what the Labour MP Stella Creasy calls this “hangover from another era” by finally decriminalising abortion.
That doesn’t mean unleashing a free-for-all, but regulating abortion like any other medical procedure with complex ethical implications, letting parliament set the legal framework under which doctors can operate. Yes, there’s a risk of reopening old battles about the content of that framework, which may be why previous governments have steered clear. But tragic cases such as this one suggest doing nothing can be the crueller choice.
Gaby Hinsliff is a Guardian columnist
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