Carla Foster

The trial of Carla Foster took place after a British mother of three children was prosecuted under UK criminal law for carrying out an abortion too late into her pregnancy in May 2020 during the COVID-19 pandemic. Foster was convicted in Stoke-on-Trent Crown Court by Justice Edward Pepperall "for administering drugs or using instruments to procure an abortion" under the Offences Against the Person Act 1861.

On 12 June 2023 Pepperall sentenced Foster to a 28-month custodial term, at least 14 months of which would have to be spent in prison. Following a hearing at London's Court of Appeal, Foster's sentence was reduced to a 14-month suspended sentence, meaning she would be freed from prison.

The case Foster carried out the abortion after procuring the necessary drugs through a remote consultation under the "pills by post" scheme introduced in England and Wales during the COVID-19 pandemic lockdown.

Trial and sentencing In June 2023 Foster was sentenced to a 28-month prison term for inducing an abortion in a gestational range the coroner estimated at 32 to 34 weeks of pregnancy. The ceiling for legal abortion in England and Wales is 24 weeks' and after 10 weeks such a procedure must be carried out in a clinic. Justice Pepperall ruled that half of the defendant's sentence should be spent in custody. He added that if Foster had pleaded guilty at the earliest opportunity at magistrates court, the custodial sentence could have been suspended.

Foster was initially charged with the statutory offence of child destruction, punishable by life imprisonment, which she denied. She subsequently pleaded guilty to a charge under section 58 of the Offences Against the Person Act 1861 for administering drugs or using instruments to procure an abortion, which was accepted by the prosecution.

Sentencing aftermath The sentence handed down by Justice Pepperall was widely criticised. Noting that the legislation the defendant was sentenced under dated back to 1861, the chief executive of BPAS Clare Murphy said she was "shocked and appalled" by the woman's sentence which was based on an "archaic law". "No woman can ever go through this again," she said. Murphy noted that, "Over the last three years, there has been an increase in the numbers of women and girls facing the trauma of lengthy police investigations and threatened with up to life imprisonment under our archaic abortion law. Vulnerable women in the most incredibly difficult of circumstances deserve more from our legal system."

Chiara Capraro, head of women's rights programs at Amnesty International UK was quoted by the Telegraph saying that, "It is shocking – and quite frankly terrifying – that in 2023 a woman in the UK has been sentenced to jail because of a law dating back to 1861. Access to abortion is essential healthcare and should be managed as such. This is a tremendously sad story and underscores the desperate need for legal reform in relation to reproductive health."

Labour MP Stella Creasy called for "urgent reform" of the law. In a tweet whose contents she expanded on in an interview with Sky News, Creasy said, "The average prison sentence for a violent offence in England is 18 months. A woman who had an abortion without following correct procedures just got 28 months under an 1868 act – we need urgent reform to make safe access for all women in England, Scotland and Wales a human right."

Mandu Reid, leader of the Women's Equality Party, stated: "I am devastated for the woman at the centre of this case, and for her children, who have been forcibly separated from their mum. This conviction serves no one, not her, not her children, not the public interest. All it does is punish a woman for seeking healthcare in the middle of a pandemic and risk deterring women who want or need an abortion from seeking that care in future. No one deserves to be criminalised for seeking healthcare, which is a human right."

The Crown Prosecution Service, which authorised the prosecution, stated: "These exceptionally rare cases are complex and traumatic. Our prosecutors have a duty to ensure that laws set by Parliament are properly considered and applied when making difficult charging decisions." The Society for the Protection of Unborn Children called it a "horrifying case" that involved a "fully viable baby of eight months." Its spokesperson opined that, "The real fault in this tragedy lies strongly with abortion providers who pushed for dangerous home abortions, and are now using this case to push for abortion up to birth."

Conservative MP Caroline Noakes, chairwoman of the House of Commons Women and Equalities Committee, also joined calls for reform of the 1861 legislation used to prosecute Foster. She told the BBC's World Tonight programme that MPs should "decide in the 21st Century whether we should be relying on legislation that is centuries old. This is not something that has been debated in any great detail for many years now, and cases like this, although tragic and thankfully very rare, throw into sharp relief that we are relying on legislation that is very out of date. It makes a case for Parliament to start looking at this issue in detail."

National march and protest In the days after the sentence was passed, outrage from feminist groups at Foster's prosecution spread and grew. Women's rights groups including The Fawcett Society (founded in 1866, just five years after the Offences Against the Person Act 1861 was ratified by parliament), the Women's Equality Party and BPAS organised a national protest and march to demand reform of abortion law. The march was planned to take place in London Saturday 17 June 2023, convening at the Royal Courts of Justice and marching 1.2 miles to the Palace of Westminster.

Court of Appeal hearing On 18 July 2023, an appeal hearing against the sentence took place at the Court of Appeal in London, before Dame Victoria Sharp, sitting with Lord Justice Holroyde and Mrs Justice Lambert. The Court reduced Foster's sentence to a 14-month suspended sentence, allowing her to be released from prison. Announcing the Court's decision, Sharp described the case as a "very sad case" and one "that calls for compassion, not punishment".