Why does it take women being sent to prison to alert us that in 2023, abortion is still a crime in England, Scotland and Wales? Far from the Abortion Act 1967 recognising that termination of pregnancy is purely a health matter, that Act singles out abortion as subject to outdated conditions that affect women’s rights.
These conditions put women’s health at risk, invade women’s privacy by reporting every abortion to the Chief Medical Officer, and mean that women who are not ready to be mothers may be forced to go through with a pregnancy. The Act not only introduces legalised sexism into women’s health care but condones sexism in the criminal justice system, subjecting women to police investigation which can result in sending women to jail.
How can this happen in 2023?
On 23 March 2019, Paris Mayo, 15 years old, gave birth to a baby boy weighing 7lbs 12oz. Her parents and brother were asleep upstairs, unaware of what was happening in the living room below. In the morning, the girl’s mother discovered the baby’s dead body in a bin bag outside.
In June 2023, Paris Mayo went on trial for murder. The jury found her guilty. Although infanticide (equivalent to manslaughter) gained a passing mention in court, the verdict was murder. On Monday 26 June, she was sentenced to life imprisonment with a minimum of 12 years.
Laws that affect abortion
In the same week as Mayo’s trial ended with its guilty verdict, Carla Foster lost her appeal against a sentence of 28 months for ingesting drugs to cause an abortion beyond the limit of 24 weeks set by the Abortion Act 1967. In dismissing the appeal, the High Court applied ‘guidelines given by the Court of Appeal’.
A further appeal could succeed only if the Court of Appeal would overturn its own directive, set in Regina v Catt ten years ago. Sarah Catt was sentenced to eight years’ imprisonment for late term abortion. On 12 June 2013, the Court of Appeal reduced this to three and a half years.
Like Carla Foster, Sarah Catt was prosecuted under the Offences Against the Person Act 1861 (OAPA). Her pregnancy was calculated as at least 29–30 weeks, so exceeding the Abortion Act’s 24-week limit. In her case, the judge observed that the charge was not murder, although he did emphasise that the pregnancy had almost reached full term.
Abortion brings out the vindictive side of the law
While Catt served her prison sentence, her two children were left without their mother. For Foster, as it stands (but see Stop Press below), if she is to maintain personal contact with her three children, it will be via prison visits. Despite the fact that their welfare and her own wellbeing lay at the heart of her actions, Foster will do 14 months in custody, and the remainder of the 28-month sentence on licence. Mayo faces a youth served in prison, qualifying for release in her late twenties.
These cases reveal, in full force, the retributive nature of the law. It also shows up the criminal justice system when women, pregnancy, abortion, and childbirth are at issue.
The Paris Mayo case
Mayo’s evidence was that she did not at first believe she was pregnant. Later, she hid it from herself in a mixed state of denial, fear and dread that were her parents to find out about her condition, they (and particularly her father) would be disappointed, and she was ‘scared’ of her father’s reaction.
Evidence was given at the trial of her father’s “emotional cruelty” and conduct toward her that made her “feel worthless”. She was described as “vulnerable and abused”. The prosecution case was that Mayo was determined to end the child’s life from the moment she became aware of her pregnancy, and interpreted the injuries found on the baby’s body as deliberate violence.
The Sarah Catt case
In 1999, when she was 21, Catt gave birth to her first child, who was given up for adoption. She had presented at hospital at 23 weeks but appears not to have been offered any advice about a termination.
In 2000, she did have an abortion at about 23–24 weeks. Pregnant again in 2002, she presented too late for an abortion, and kept this child. In 2004, she arrived at hospital when in labour, and gave birth to a second child; she kept this child, too.
In 2009, she was pregnant again, and it was this pregnancy that led to the prosecution. The evidence at trial was that she had concealed each pregnancy. The prosecution portrayed her as dishonest and deceitful, lacking any remorse, a manipulative individual who engaged in extensive planning and subterfuge to secure drugs for the out-of-time abortion.
Evidence for the defence (which the Court of Appeal accepted to some extent) was that she was a good mother. The psychiatrist who gave evidence for the defence said she was tearful and remorseful, but the Court of Appeal discounted this, although quite contrarily the court described her history of pregnancies as one which identified ‘the potential for disturbance, personal misery and entrenched problems’.
The Carla Foster case
Foster, mother of three, became aware of her pregnancy in about February 2020. Before taking the lawfully provided abortifacients, she searched the internet for advice on pregnancy termination and time limits. It was the year of lockdowns, restrictions on movement, and serious interruption with everyday life, particularly for parents (like Carla) with school-age children being home-schooled with limited, if any, help.
Originally charged with child destruction, carrying a life sentence under the Infant Life (Preservation) Act 1929, Carla Foster pleaded not guilty. The OAPA charge was substituted.
Why these prosecutions?
The Crown Prosecution Service does not pursue rape cases (where men are accused) with the same vigour, if at all. Police are less than diligent, according to a 2022 report: less than 1.3% of rape offences recorded showed any charge or further court proceedings resulting. Similarly, criminal assault at home, and flashing – again male dominated crimes – are disproportionately dropped.
The Baroness Casey Review of October 2022 and March 2023 found misogyny embedded in the Metropolitan Police, with little cause to doubt its replication around the country. There’s a difference, too, when it comes to taking life. In 2019, when a burglar was killed by the (male) home owner, police took no further action – the home owner was released with no charges, and in 2013, to shore up the rights of householders who kill, the law was explicitly changed.
Why are these cases treated differently?
The troubling circumstances of Foster, Catt and Mayo were not dealt with “as swiftly and sympathetically as possible”. On the contrary, it seems that police and hospital authorities are colluding in extraordinarily repressive actions against women. In 2022, it was reported that police are investigating thousands of women in England and Wales “who have suffered miscarriages or stillbirths … on suspicion of having illegal abortions”. Some have been “forced to hand over their phones and laptops for invasive ‘digital strip searches'”. The existing abortion law supports this intrusively judgemental action.
In reality, abortion remains illegal unless strictly conducted under the repressive terms of the 1967 Abortion Act. If not complied with, women can be prosecuted under section 5 of that Act or under the archaic provisions of the 1861 OAPA. That is, except in Northern Ireland, where the Abortion Act doesn’t apply, and the OAPA abortion provisions have been repealed.
Where does the responsibility lie?
Following Foster’s imprisonment, the minister of state for victims and sentencing declared that abortion law in England and Wales “had been settled by parliament and the government does not intend to change it”. Yet, clearly, the courts are leaving it to parliament to act. In fact, in 2019, parliament repealed the OAPA abortion provisions for Northern Ireland, but not for the rest of the UK. This disparity between Northern Ireland and the rest of the UK needs to be addressed as soon as possible.
Action could have been taken back in 2019 – or earlier – as proposed by Diana Johnson MP in a 2018 backbench members bill. Women are being investigated, prosecuted and imprisoned under antiquated laws and children are being deprived of their mothers. Despite erroneous contentions that women are favoured by the legal system and mothers rarely sent to prison, the opposite is demonstrably true.
Equality before the law still evades women
The fact that women continue to be governed by ancient laws – the Abortion Act is over 50 years old, the Infant Life (Preservation) Act is 90 years old and the OAPA is 150 years old – confirms that despite having the vote, women’s rights remain at the bottom of the agenda.
As we went to press, we heard that Carla Foster’s appeal against sentence has been partially successful. Halving the sentence by reducing it from 28 to 14 months, the Court of Appeal, constituted by Dame Victoria Sharp, Lord Justice Holroyde, and Mrs Justice Lambert, ruled that sentence should be wholly suspended. This means that Foster will remain at home, with her children – her children will not be seeing her behind bars.