There are so many issues and conflicting emotions raised by the case of the mother of three who has been sentenced to more than two years in prison for using drugs to induce an abortion when she was between 32 and 34 weeks pregnant.
Prosecutors said the woman had knowingly misled the British Pregnancy Advisory Service (BPAS) by saying she was below the 10-week cut-off when she believed she was about 28 weeks pregnant.
Although it was said that the baby did not draw an independent breath, up to 95% of babies born at this stage do survive, so there is no underestimating the seriousness of this woman’s actions.
In England, Scotland and Wales, abortion is generally legal for up to 24 weeks but is carried out in a hospital or a clinic after 10 weeks.
However, the decision to give her a custodial sentence goes to the very heart of rights for women and what we are looking to achieve from our sentencing framework.
One of the problems with this case is that there were no Sentencing Guidelines to inform the judge’s decision-making. Instead, the judge, Justice Pepperall, was forced to rely on the Offences Against the Person Act, legislation that dates back to 1861.
The fact that this took place during lockdown, when there was no access to face-to-face consultations, would surely have been an important mitigating factor.
The judge in the case did recognise that there were mitigating factors and said the woman felt “very deep and genuine remorse” and was racked with guilt and plagued by nightmares over her actions.
However, his judgement was that her culpability was high … “because you knew full well your pregnancy was beyond the limit of 24 weeks, and you deliberately lied to gain access to telemedical services.”
He accepted that she had a very deep emotional attachment to the unborn child and that she was plagued by nightmares and flashbacks of seeing the dead child’s face.
He added that, if the woman had pleaded guilty at the earliest opportunity at the magistrates’ court, the custodial sentence could have been suspended. So her custodial sentence was not a reflection of her ‘crime’ but rather that she allowed the legal process to go on longer than it should.
It is also hard to understand what is hoped to be achieved by this sentence. It is unlikely that this woman will re-offend, and, even in the most serious of cases, custody has not been a factor in reducing re-offending. Society is not at risk from her behaviour. The only consideration must be that she is being punished and that a very clear message is being sent to other vulnerable and desperate women and girls.
It is the impact of this message that has been of real concern to a number of eminent professionals, including the president of the Royal College of Obstetricians and Gynaecologists. They pointed out that the successful introduction of the telemedicine option was one of the single greatest advances since abortion care was legalised by the 1967 Act. The letter urged “a non-custodial sentence, indicating that its authors are concerned that a custodial sentence would deter other women from accessing telemedical abortion services and other late-gestation women from seeking medical care, or from being open and honest with medical professionals.”
In arguing that this woman should not have received a custodial sentence is not to underestimate the seriousness of her actions, but rather to question the legitimacy and proportionality of such a sentence. Women need to be really desperate to take these sorts of steps, and from the evidence provided in court, she will suffer the consequences for the rest of her life. Her three children will be deprived of their mother, and the so-called warning to other women and girls may well have serious and unintended consequences.
As the British Pregnancy Advisory Service says, “This woman has been prosecuted under a law passed in 1861 which states that any woman in Great Britain who attempts to end her own pregnancy can face up to life imprisonment. What kind of a society treats women this way?”
This is about more than the sad and desperate case of one woman. This government has already refused to add the right to abortion to the new Bill of Rights. While other countries such as France have moved to update their constitutions, we continue to criminalise abortions.
We need to be concerned. We need to be angry and we need to fight for change to prevent any woman from ever being treated in such a cruel and draconian way ever again.