Updating UK abortion laws risks a backwards step for women’s rights

The writer is a KC and Labour peer

The sentencing of a woman earlier this week for administering a poison with intent to procure a miscarriage has caused a surge of outrage from those who feel no woman should be criminalised for asserting her right to control her own body.

Carla Foster, who terminated a pregnancy at 32 to 34 weeks at home during the pandemic lockdown, at a time when medical services were in turmoil, must now spend two years and four months in prison. This is despite having three young children, one of whom has special needs and despite the judge accepting her mental anguish.

Abortion is one of the key issues in any discussion about women’s liberation. “A Woman’s Right to Choose” acknowledges that women’s reproductive capacities have been a major cause of subjugation. Pregnancies before or outside marriage, or as the product of rape, have been a source of shame for centuries and the disastrous outcomes of illegal abortion are well known. But I fear the call for immediate reform could have negative repercussions.

The key problem in Foster’s case is that of the time limit. If the 10-week deadline for the modern drug-induced termination has passed, the Abortion Act 1967 kicks in. A surgical procedure becomes necessary and the medical opinion of two practitioners must be sought. After 24 weeks, abortion is illegal in most circumstances and is extremely rare — there were just 236 such abortions in 2020.

Many including Conservative MP Caroline Nokes have raised concerns that the legislation used to prosecute Foster is out of date. She was charged under the 1861 Offences Against the Person Act, which was not repealed when abortion was partially legalised in 1967, so it still applies when a woman terminates a pregnancy at home outside the legal parameters. The older act stipulates that those who use drugs or other instruments to cause an abortion could be “kept in penal servitude for life”.

Like many of us, Nokes questions whether Britain should be “relying on legislation that is centuries old”. But even if prosecuting and imprisoning this distraught mother was unnecessary, many would also argue fiercely that we should not allow anyone to evade criminal responsibility for the death of a viable foetus old enough to survive outside the womb.

The judge in Foster’s hearing pointed out that there were no sentencing guidelines for such a case. Clearly, such guidelines are necessary, and should emphasise that imprisonment should be rare: very, very few women end a late pregnancy who are not in despair or suffering mental ill health. The director of public prosecutions and the Crown Prosecution Service should also provide guidelines as to when a prosecution should be pursued, just as they did regarding family members who travel with patients to Dignitas.

Section 58 of the Offences against the Person Act and the Abortion Act should be repealed at some point and a new law created with a woman’s right to abortion at its heart. I personally think it would require limits where the foetus is in the final stages of gestation. However, embarking on new legislation at a time when culture wars are raging and sensitive subjects are coarsened into crude polarised debates may be unwise.

Medical experts warn of a recent series of invasive, unjust investigations where women had late miscarriages. I fear this campaign could take us into a dark place where rights end up being reduced rather than expanded. Events in the US — where the constitutional right to abortion was overturned last year — show how abortion can become viciously politicised.

Until now this has not been a British problem. But when our own politics are becoming ever more populist, a move to update the act could be branded as “the right to kill babies”. The American religious right has ample funds and is keen to extend its influence further afield. If we are not careful, we could get far fewer rights than we bargained for.