People look at me aghast when I say we don’t have legal abortion in Britain. And yet, yesterday’s news that 44-year-old mother-of-three Carla Foster was given a 28-month sentence for having an abortion after 28 weeks (under a UK law so old it which was created before the nation of Germany even existed) shows that even in 2023, women here don’t have the right to choose.
Foster is not the only woman in the UK facing criminal charges because she had an abortion. Those who say what is happening in America, El Salvador or Poland to women's rights could never happen here – that we shouldn’t worry about Gilead – don’t understand how precarious our right to choose is, and thus why we need urgent reform to our antiquarian laws to protect it.
Despite abortion being first and foremost a healthcare matter, all access to the medical procedure in England and Wales rests on matters of criminal law - and it has done for centuries. While abortion was legalised in England with the Abortion Act in 1967, the 1861 law that criminalised it was not repealed, meaning that women still face life imprisonment if they carry out an abortion over the legal time limit. This 1861 statue places having an abortion at any stage of pregnancy on the same scale as casting stones at a railway carriage or using gunpowder to blow up a building. What many people don't realise is, the Abortion Act of 1967 simply exempted women from prosecutions if they met certain criteria.
As this new wave of investigation into abortions shows, the threat of police intervention is not theoretical but actual – despite the overwhelming majority of the public supporting women's right to choose.
Medical professionals justifiably fear this case, and the rise of intrusive police investigation into abortions could have a chilling effect on abortion access. Those who argue nothing needs changing because abortion is ‘effectively’ legal don’t recognise the real world consequences arising all round us, because it is not. The judge in Fosters case said those shocked by her sentence should look to politicians to act – which is why we are calling for the government to instruct the Lord Chancellor to use the royal prerogative of mercy to return Foster to her family. Her incarceration only punishes her remaining children, achieving nothing except highlighting the need for reform.
We are calling on the Lord Chancellor to use the royal prerogative of mercy to release Carla Foster.
We also need to stop this happening again and address the inequality between women in the UK. In 2019 Northern Ireland revoked the 1861 statute, and a human rights-based framework for medical access put in its place. While issues remain about ensuring local service provision, what is happening to Foster and the other women would not be possible there because it is not a crime to have an abortion.
For too long, abortion reform has been put in the box marked 'too difficult' – often out of fear it would create opportunities for those who want to take away the limited rights we currently have. This case shows trying to hide from this issue won’t work, and those who oppose abortion are working regardless. They're funding campaigns and targeting MPs, using convictions like this one to make even more lurid claims and demands. As the CPS continues to use this arcane legislation, those of us who know that equality means women are equally free to determine for themselves what happens to their own bodies must speak up - before more women end up behind bars for exercising their right to choose.