I watched the repeal of Roe vs Wade last year in wide-eyed horror as a woman’s right to an abortion in the United States vanished overnight. My friends in the US were in pieces — there was heartbreak and disbelief as they watched the erosion of their human rights in real time. I sent them my commiserations and listened to their fears. It was awful but this was a country which voted for Donald Trump and believes in the right to bear arms while children are slaughtered in classrooms on a monthly basis. This is a deep-set American culture war, not a British one, I thought.
But then came the upsetting case of Carla Foster over here. The vulnerable mother-of-three was jailed for two years for illegally obtaining abortion pills when she was between 32 and 34 weeks pregnant. The circumstances were desperately sad: the 44-year-old had been at a loss, having moved back in with an ex-partner at the beginning of lockdown while carrying another man’s baby. Her anxiety was sky-high and her mental health was unstable. She has said she is haunted by her dead child’s face. In prison she wasn’t allowed any contact with her three children, one of whom is autistic. It’s harrowing stuff. Thankfully, sense eventually prevailed, her sentence was reduced and she was released. The Court of Appeal judge stated that Foster needed “compassion not punishment.” Yet, this woman will always have a criminal record.
Today another woman will appear in a UK court accused of carrying out her own abortion. She will come before a judge today and is charged with child destruction and procuring her own miscarriage. The abortion is alleged to have happened during the first Covid lockdown when she was 19. The maximum penalty for each charge is life in prison.
In the last eight months four women have been prosecuted under a law from 1861 — compared to only three in the last 160 years
Fast forward to a few months’ time, in November, when yet another woman is due to stand trial, this time for inducing her own miscarriage. She has pleaded not guilty.
In the last eight months, four women have been prosecuted under an archaic law from 1861. Four may not sound like that many, but compare that to the last 160 years during which only three women were prosecuted — and none of them brought to trial. Cut to 2023 and one has to ask if this acceleration in arrests of women suspected of illegal abortions seems markedly aggressive? It feels like something has shifted — in the wrong direction. Lest we forget that just last year a Tory MP (Danny Kruger) said in Parliament that he doesn’t believe women have the “absolute right to bodily autonomy.”
In America, during the run-up to the Roe v Wade reversal, there had been an alarming upward trend in women being prosecuted for pregnancy loss, including miscarriage and stillbirth. One woman was even charged and accused of attempting an abortion after she became lightheaded and fell down the stairs. In 2021, another was convicted of manslaughter for a miscarriage at between 15-17 weeks and sentenced to four years in prison.
It sounds like a dystopian scene from The Handmaid’s Tale. But in the UK too, women who have endured miscarriages and stillbirths are also being subjected to invasive police investigations under the unfit-for-purpose 1861 act (which makes it illegal for women to procure their own abortion — a crime which carries a life sentence). Dozens of probes have been launched in the last 10 years; perhaps most upsetting was the case of a 15-year-old who was subjected to a year-long investigation after a stillbirth. The case was dropped after a coroner declared the loss was caused by natural causes. I can’t think of many situations more callous or cruel.
Just as in the US, we’re seeing a worrying trajectory in the stigmatisation of women. In Britain in 2012, eight women were recorded as having illegal abortions, in 2021 there were 40 investigations under way. Dr Jonathan Lord, a gynaecologist and medical director at MSI Reproductive Choices UK, has described the increase as “very disturbing and chilling.” We look at the situation in the States with a detached disbelief but the rights of women here are not a given. The 1861 law was designed to protect women from backstreet abortions — it’s outdated and out of step with society. It urgently needs repealing.
No matter the circumstances, women shouldn’t be subjected to a criminal investigation for accessing healthcare. Very few women would terminate a late-stage pregnancy, so instead of words like “prosecution” and “unlawful”, I’d suggest “safeguarding” and “support” would be more humane.
