‘Compassion not punishment’: why Carla Foster’s appeal over illegal abortion matters

I had never experienced a reaction like it. As we walked from outside the Royal Courts of Justice, through theatreland and down to Whitehall people stopped to cheer us on. Others ducked under the cordon and joined in. On the top deck of a London bus, people stood up to clap and a woman shouted “good on you” from the open window.

While, over on Twitter, angry folk (some men calling themselves ‘incels’ in their bios) wave their flaming torches and shout ‘murder’ into the void, in the real world things have looked very different in the 35 days since Carla Foster was jailed for procuring her own late-term abortion and thousands of us protesters marched through central London to demand her release.

Here, in a place where human empathy exists and common sense prevails, many people wanted the 45-year-old to be treated with “compassion not punishment” — the words used by Justice Dame Victoria Sharp as she released Foster today. “This is a very sad case,” she added.

She’s right — while this is a moment to celebrate the fact that Foster won’t have to spend another day or night behind bars, away from her children, the whole thing is overwhelmingly sad.

Carla Foster is to be released from prison (Elizabeth Cook/PA)

/ PA Wire

The facts themselves — that Foster admitted to ending her pregnancy between 32 and 34 weeks, having obtained abortion pills by misleading the British Pregnancy Advisory Service (the legal limit is 23 weeks and 6 days) — are tremendously upsetting and I can understand why some people find them difficult.

But they are also desperate. The experts, whose voices were largely ignored at Foster’s trial, told us that she was a woman in serious crisis: living with her estranged partner during the first lockdown and pregnant with another man’s child. Her defence lawyer, explaining how the pandemic had exacerbated her anxiety, said there had been a lack of “vital reports” into his client’s mental health.

It is also tragic that Foster and her family have had to endure this ordeal. At her sentencing, in June, we were told that she was traumatised by her actions. What further damage will have been done in those weeks behind bars? How will her three children — one of whom is autistic and with whom she was denied contact during her incarceration — have suffered? Can they be together again? What has happened to her home and finances? Will she be able to access mental health support now?

Compassion not punishment, then. But in order for that to be true, we need an abortion law that says the same.

Because what is also sad is that Foster’s conviction still stands — the Court of Appeal only reduced her sentence from 28 months to 14 months suspended. She remains a criminal, thanks to an antiquated law that not only fails to reflect the views of the majority but means a woman can be jailed after accessing healthcare.

We can’t rely on the upper courts of this country to swoop in and right the wrongs of the criminal justice system that is using an 1861 law designed to target backstreet 19th century abortionists to prosecute vulnerable women in 2023.

Women’s rights campaigners in Westminster, London after taking part in a march from the Royal Courts of Justice calling for decriminalisation of abortion

/ PA

There must be an urgent review and new guidance that leaves the Crown Prosecution Service in no doubt that prosecuting such cases is not in the public interest. We need new sentencing guidelines to make sure no woman can ever be sent to prison for her own termination again.

It isn’t good enough that abortion is only partially decriminalised in our supposedly modern nation — unless approved by two medical practitioners and inside the 23-week and 6-day limit, it is punishable by a possible life sentence.

Downing Street must act urgently because this is not over. Right now, two women in England are awaiting trial accused of illegally ending their own pregnancies — one aged 22 and the other 23, both are being prosecuted using the same law that put Carla Foster behind bars.

There seems to be a growing appetite for going after these desperate women, who need our compassion. According to the Office of National Statistics, between April 2021 and March 2022 there were nine recorded offences of ‘procuring illegal abortion’ and 24 for the ‘intentional destruction of viable unborn child’. Both carry a maximum life sentence.

There seems to be a growing appetite for going after these desperate women

That’s why Foster’s appeal was so important for us all. This is a pivotal moment for abortion in this country and what happens next could — based on the current use of Victorian legislation — impact the future of women for decades to come.

And as for those who don’t believe that abortion is healthcare? Well, we probably won’t be able to change their minds. But together we can change the law.

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