How is it that the General Medical Council finds it necessary to warn doctors to “think carefully before reporting women to the police over a suspected illegal abortion”? Is the law designed to protect a woman’s human rights or criminalise a woman who tries to end their own pregnancy?
A case in point
Monday, 12 June 2023. Carla Foster, 44, is sentenced at Stoke on Trent Crown Court to 28 months’ imprisonment. The charge? Using abortion pills to terminate her pregnancy after the legal cut-off point of 24 weeks.
Think about the context of this case
It’s 2020 and the UK is in lockdown. Do you remember the Covid lockdown conditions and their impact on women? What about women and girls living in cramped conditions without free and ready access to advice, much less access to medical care? During the pandemic, women suffered an upsurge in violence at home. Some will have endured sexual abuse leading to pregnancy. Some will have been in Carla Foster’s position, one exclusive to them as women, with little choice but to take pills beyond the Abortion Act time limit. Some, like Carla Foster, will have been reported to police by their doctors, thus breaking patient confidentiality.
Many more similar cases
A recent Freedom of Information Act request discovered that at least 36 women and girls are being subject to police investigation for ending their pregnancies – and how many more prosecutions can be anticipated?
The legal situation
Despite the Abortion Act 1967, which so many women believe makes abortion legal in the United Kingdom, Carla Foster was condemned by section 5 of that Act and the 1861 Offences Against the Person Act (OAPA). OAPA section 58 prohibits “administering drugs or using instruments to procure abortion” by the pregnant woman herself. Section 59 outlaws the procuring or supply of drugs “or other noxious thing or any instrument or thing whatsoever” when knowing it is intended to be used unlawfully or employed to procure an abortion.
The Abortion Act criminalises abortion unless pregnancy termination conforms to the Act’s strict requirements. The Act isolates medical treatment for women in a way other medical treatment for health is not constrained. It requires not just one medical practitioner, but two, to “authorise” termination having formed an opinion “in good faith” that:
- the pregnancy is not beyond twenty-four weeks and continuation would involve greater risk “of injury to the physical or mental health of the pregnant woman or any existing children of her family” than would termination; or
- termination is necessary “to prevent grave permanent injury” to the pregnant woman’s physical or mental health; or
- continuing the pregnancy “would involve risk” to the pregnant woman’s life greater than the pregnancy’s termination; or
- there is a “substantial risk” that the child, if born, “would suffer from such physical or mental abnormalities as to be seriously handicapped”.
If the abortion is not carried out accordingly, on top of the OAPA provisions, section 5 makes it illegal.
As for abortion pills, if administered by a medical practitioner the limitation is ten weeks of pregnancy. Where self-administered, there being no reference to the pregnancy’s length of time, in Carla Foster’s case the twenty-four-week limitation was applied rather than ten.
Surveillance of women’s pregnancy goes beyond these provisions. Regulations under the Abortion Act require a report by the practitioner to the Chief Medical Officer setting out details of the termination, the grounds, and the full name “in block capitals” of the pregnant woman. This information must remain on the books for three years minimum. In 2022, amended regulations cover self-administration requiring full details of dates of taking the pills and of the termination.
Discrepancies in the law in different parts of the UK
Ironically, despite notions of Northern Ireland as “backward” when it comes to abortion, from 2019, it is the rest of the United Kingdom that lags, leaving women subject to 1861’s criminal law. The 1967 Abortion Act has never applied to Northern Ireland, so restrictions under that Act never covered women in Northern Ireland.
In 2019, in response to the 2018 review of where the UK stands on government compliance with women’s rights and CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women), Parliament repealed section 58 and 58 of the OAPA – for Northern Ireland only. In so doing, Parliament explicitly acknowledged the importance of “protecting the human rights of women in Northern Ireland”. Hence, termination of pregnancy there is wholly decriminalised as a matter of women’s human rights. Now, the law operates as it does for any other medical treatment or operation – consent and patient benefit apply. Not so for the human rights of women in the rest of the country.
There are still restrictions on access to women’s health treatment, particularly abortion, in Northern Ireland and these must be addressed. However, the question remains, why did Parliament leave Abortion Act restrictions intact in the remainder of the UK, and leave women subject to antiquated criminal laws?
Women and human rights
It is time for the human rights of women throughout the UK to be affirmed on all levels. Criminal assault at home and other forms of domestic violence, rape and flashing are still the least likely crimes reported, the most dropped by the Crown Prosecution Service (CPS). Women have the right to expect medical practitioners to look after their wellbeing and respect their rights to confidentiality. They have the right to expect the police to investigate crimes against women and report offenders within their ranks. They have the right to expect the CPS to prosecute crimes against women and girls rather than misguided allegations against them.
Pregnancy termination must be recognised as a health issue, not for second opinion, not for criminal laws and imprisonment based in sex discrimination and misogyny. Second class citizenship must be ended. It is no place for a woman.
Time for rethink the abortion laws
The Abortion Act 1967 is an antiquated piece of legislation, out of step with recognition in other countries (for example, Australia) that termination of pregnancy is a matter of women’s health rights. The Abortion Act and the OAPA provisions should have been repealed for the entire country back in 2019. The Infant Life Preservation Act 1929 should also be revisited to recognise women and girls’ right to contraception and abortion, and weighing foetal protection against enforced pregnancy and birth. Women are demonstrating now for women’s health rights as human rights. The medical profession, too, is calling for change and for abortion to be decriminalised. Dr Emma Milne, an association professor at Durham University and expert on abortion law says, “The nature of the law means that women have no right to an abortion. We only have the right to ask a doctor if they will allow us to have an abortion. In 2023, that’s an incredibly bizarre and unjust situation for us to be in.” And, as noted, it’s not ‘a’ doctor – it’s two.
At the time of going to press, news has come in that Clare Foster had her appeal rejected.