The law must teach, as well as punish

A surprise court ruling in Great Britain last week saw a mother of three jailed for inducing an abortion after the legal limit.

Carla Foster, 44, was between 32 and 34 weeks pregnant in May 2020 when she took the abortion pill mifepristone. Abortions in the United Kingdom are allowed in the first 24 weeks, and all abortions after 10 weeks must be carried out in a clinic.

In a controversial ruling, Foster was found guilty of administering drugs to procure abortion and was handed a 28-month sentence. Fourteen months of Foster’s sentence will be spent in custody, with the remainder carried out on parole.

Foster obtained the pills via the U.K.’s “pills by post” service. Introduced in spring 2020 in response to the COVID lockdown, the service allows British women to obtain abortion pills in the mail from BPAS (British Pregnancy Advisory Service), without an in-person appointment. The pills can be taken at home within the first 10 weeks of pregnancy, and the service became permanent across the United Kingdom in 2022.

Foster, however, provided false information to BPAS in order to obtain the pills, giving the impression she was around seven weeks pregnant. The prosecution demonstrated that her actions involved “careful planning,” her search history showing that, between February and May 2020, she had searched “how to hide a pregnancy bump,” “how to have an abortion without going to the doctor,” and “how to lose a baby at six months.” After taking the pills on May 11, 2020, Foster’s child—a daughter, named Lily—was delivered stillborn.

The judge, Mr. Justice Edward Pepperall described the case as “tragic.” Foster was already the mother of three children, one of whom has special needs, and the U.K. COVID lockdown of March 2020 forced Foster to move back in with her estranged partner while carrying another man’s child.

Foster’s case has reignited debate in the United Kingdom about abortion laws. With British attitudes among the most liberal in the world, many were surprised to see a custodial sentence handed down. Yet despite calls for leniency, the judge stated that it was his duty “to apply the law as provided by parliament.”

Foster was convicted under the Offences Against the Person Act of 1861, which provided part of the basis for the U.K.’s Abortion Act of 1967. The age of this legislation has grabbed headlines in the British media, with critics denouncing the ruling for being based on an “archaic law.” Medical bodies such as BPAS, alongside both Conservative and Labour MPs, are calling for a rethink, and for abortion to be fully decriminalized for women throughout the U.K., as is already the case in Northern Ireland.

U.K. pro-life groups claim that proposed changes would either amount to scrapping abortion limits, or lead fairly swiftly to it. In a statement on the Foster ruling, Right to Life UK argued that full decriminalization would “make the Abortion Act 1967 redundant in England and Wales,” meaning that “abortion would be available on demand, for any reason, up to birth. The upper time limit would be completely abolished.”

Despite calls for reform, British Prime Minister Rishi Sunak has said there are “no plans” to review the legislation, and another senior Conservative MP described the question of abortion as “settled” in the House of Commons.

U.K. abortion advocates tend to be left-leaning Europhiles, but even most European nations set limits around 10 to 12 weeks. With such liberal laws already, why do U.K. advocates want further liberalization?

The case also raises the question of the very purpose of the law. Many have asked whether Foster’s criminal sentence is in the public interest. It is indeed in the public interest, for the law’s role is to teach as well as to punish. In a well-ordered society, the law must do both.