Abortion raises questions of life and death, and is rightly a fraught topic. But the way campaigners have sought to exploit the deeply upsetting case of a mother who has been jailed for terminating a late-term pregnancy is particularly galling.
Carla Foster took pills that she had obtained by deception which resulted in the stillbirth of her daughter at between 32 and 34 weeks. The details are harrowing, but thankfully very rare; the vast majority of abortions in England and Wales happen before 10-weeks gestation.
However this has not stopped Labour MP Stella Creasy saying, ‘it’s never been more urgent to ensure it is a formal human right of all women in the UK to access a safe, legal and local abortion if she chooses’. To imply, as she does, that access to abortion is under threat is pure scaremongering. Abortions are perfectly legal in this country, just not in the particular circumstances pertinent to Foster’s case. Indeed she was only able to get the drugs because of the relaxation of rules around telemedicine brought in during the pandemic. Far from the ‘repeated attacks on women’s rights’ Creasy conjures, changes in recent years have all been in a ‘pro-choice’ direction.
That doesn’t mean Foster deserves anything but compassion – it’s hard to see the public interest in imprisoning Foster and separating her three living children from their mother. But the judge was clear in his sentencing remarks that she could have avoided jail if she had pleaded guilty at an earlier stage in the proceedings. The rule of law applies equally to everyone, however sympathetic.
Nonetheless, there are still those who argue that the law should be changed. Mandu Reid, leader of the Women’s Equality Party, has said ‘No one deserves to be criminalised for seeking healthcare, which is a human right’, while Caroline Nokes, Chair of the Women and Equalities Select Committee said MPs should ‘decide in the 21st century whether we should be relying on legislation that is centuries old’.
Whether it’s making Carla Foster the face of abortion liberalisation or unions clamouring for Ofsted reform after the suicide of a headteacher, efforts to base legislative change on individual, highly-emotive cases are uncomfortably opportunistic. Those who seek changes to the law should argue from principles, not peculiarities.
The tendency to frame abortion solely as a ‘healthcare procedure’ to which there is a ‘human right’ is both contradictory and, ultimately, self-defeating. Contradictory because those who want to liberalise abortion will say in the same breath that it is not a procedure any woman takes lightly. Acknowledging the agonising toll it can take on some women is admitting that it’s nothing like removing an in-grown toenail, lancing a boil or any other ordinary healthcare treatment.
And self-defeating because unborn children have rights too. The law as it stands is a fudge that seeks to balance women’s reproductive autonomy against protecting foetuses. The 24-week time limit may be arbitrary, but that is not a very compelling reason to change it, least of all to an age at which a child born alive would almost certainly survive – like Carla Foster’s baby.
Even in Canada, where abortion is decriminalised through all nine months of pregnancy, no healthcare providers offer it after 24 weeks. And reading how Foster told the court that she is plagued by nightmares and flashbacks of her dead child’s face, it’s not difficult to understand why. There may not be an exact moment when a foetus becomes a child, but there is broad international consensus that this does happen some time in the third trimester – and once you have agreed that two human lives are involved you owe a moral duty to both of them.
As for the idea that legislation is unsuitable because it originates from the 19th century, is simply wrong. Abortion laws have been reviewed and updated regularly since the original Offences Against the Person Act 1837, not least by the 1967 act legalising abortion, and more recently in relation to Northern Ireland. It’s also an odd position for a Conservative like Nokes to take. By that logic all manner of common crimes, including assault and grievous bodily harm, ought to be wiped from the statute book. The ancient, iterative nature of our democracy is a strength, not a weakness. Of course, this does not mean the current abortion regime is perfect, but the correct place to enact changes is in Parliament, not the courts.
Too many in public life lack this basic understanding of our constitution. Whether it’s overturning Brexit or the latest crusade of Jolyon Maugham and his Good Law Project, campaigners often turn to the justice system when elected representatives make decisions they don’t like. In Carla Foster’s case, a group of eminent healthcare professionals, including the President of the Royal College of Obstetricians and Gynaecologists and the Chief Executive of the Royal College of Midwives wrote to the judge urging leniency and expounding the merits of telemedicine abortion.
Mr Justice Pepperall was surely right to say that this letter could be seen as ‘special pleading’ from those who favour wider access to abortions, and was just as inappropriate as if a pro-life group had urged him to impose a harsh sentence as a deterrent to other women. Thanks to this country’s fixation with the NHS, healthcare professionals have acquired a veneer of irreproachable neutrality that shields their motives from scrutiny. The judge’s remarks are, therefore, a welcome curative.
But they are also a warning about the dangers extrapolating general tenets from unique and unusual tragedies. Even in writing this, I could be accused of exploiting Carla Foster’s suffering for the sake of argument. It’s a practice that compromises us all.
Abortion is a serious moral question on which Britain has reached a functioning settlement. Overturning that settlement out of a well-meaning impulse to spare one woman from prison, or pretending that there are no issues of right and wrong involved, is not a morally serious answer.
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