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Tread Carefully on British Abortion “Reform”: The Carla Foster Case

Introduction


The criminal conviction and 14-month suspended sentence given to 45-year-old British woman Carla Foster in June 2023 for procuring an abortion outside legal limits has been met swiftly with vibrant political activism throughout the country. However, youthful political outrage seeking to emulate political abortion battles in the U.S. are gravely misplaced. Details of the case, existing legislation and the current British political climate complicate popular reactions, instead highlighting the danger of calls for legislative change and its potential to jeopardise existing legal protections.

A testament to the difference and liberality of the British abortion framework appears throughout this case; one that began during the COVID-19 pandemic. Britain’s politically entrenched public healthcare system has long been at the forefront of protecting and providing abortion care in the UK. Whilst COVID-19 exposed institutional issues with the health service, it also signified the enduring strength and flexibility of the UK’s public health providers and its provision of safe abortions.

From the outset of the pandemic, the British government enacted a nationwide provision to safeguard abortion during lockdowns, permitting self-induced at-home abortions on the phone or via e-consult for pregnancies under 10-weeks. This limit is in line with universally-accepted medical recommendations for safe misoprostol use, with the FDA also recommending using misoprostol for pregnancies that are less than 10 weeks. Such measures highlight the centrality of medical advice to abortion in Britain and the sidelining of political or religious beliefs.

The Case

It is this legislative framework that Carla Foster was found in breach of. During the pandemic, Foster became pregnant and had two broad options under British law. The first would be to seek support through the NHS for at-home termination for up to 10 weeks. Her second option would be scheduling a medical appointment for a routine procedure up to the third trimester; a limit set by the 1967 Abortion Act. This limit, set in-line with the medical consensus of foetal viability, serves to embody the general deference given to medical knowledge in British public health policy.

Foster’s decision to terminate her pregnancy at 32 weeks was long past the point of foetal viability and legal limitations. Presiding judge Justice Edward Pepperall maintained in his ruling that Foster remained aware of the illegality of her actions and the other medical options available to her when she approached the British Pregnancy Advisory Service for e-consult. Taking advantage of the at-home termination policy, Foster knowingly lied to the service. Judge Pepparall’s sentencing remarks stated that "messages found on your [Carla Foster’s] phone indicate that you had known of your pregnancy for about three months." The court was also given evidence of her internet search history, which was littered with attempts to induce miscarriage past the legal limit.

Importantly, it must be noted that although British law sounds a limit of 24 weeks, there are exceptions to be made, such as if risks are posed to the mother's life or if severe psychological risks are posed. Ms. Foster's case however, presented no such circumstances.

The sentencing itself provides further evidence as to the favourability of Britain’s contemporary legal environment. Foster was initially sentenced to a 28-month custodial sentence, which entailed 14 months of imprisonment. However, Foster’s sentence was reduced to a suspended sentence of 14 months at a hearing at London's Court of Appeal, meaning that she would not be serving prison time.

This case displays a clear flouting of Britain’s comparatively liberal legislation, and should certainly not be used as a flag to wave by activists seeking balanced and genuine policy reform. In fact, such a co-option of this case risks endangering the legislative mechanisms that currently protect the right to abortion in the UK through unleashing dogmatic and powerful religious politics not seen in the country since the 1800s.

International comparison draws further light onto the futility of current protest and how liberal Britain’s restrictions truly are. Under the Roe v. Wade ruling from 1973 the court’s ruling made two crucial observations:

i) “The state may restrict abortion post-viability;” [and that]

ii) “The state has a legitimate interest in protecting women’s health and [the] life of the foetus.”

Whilst upholding a woman's right to choose, the court’s decision in Roe v. Wade to legitimise state power to "protect the life of the foetus" is anathema to British legislation against which campaigners have so vociferously protested. In conjunction with the legal protections offered by the 1967 Abortion Act, Britain is afforded a public health provider that is independent of political bias and is at the forefront of championing equal access to care. Such political independence was seen in Justice Pepperall's sentencing remarks, which noted a letter sent to the court urging a reduced sentence for Foster from the Chair of the Royal College of Obstetricians and Gynaecologists, and the Chief Executive of the Royal College of Midwives amongst other institutions.

All this begs the question of what exactly are abortion rights activists trying to gain aside from some fleeting moment of political relevance.


A Brief History of Politicised Abortion in the U.S.

To grasp the danger posed by this contemporary appetite for political fighting over abortion rights in the UK, consideration must be given to the complicated political history of abortion across the pond. Its capitalisation as the energiser of a flailing 1970s Republican party which has now come to utterly dominate American political life is a situation that could easily be replicated in the UK.

For most of American political history, abortion did not secure a place in the minds of voters. It was simply a non-issue cast aside by political organisations and the voting public as a Catholic problem. That all changed in the aftermath of racial segregation in the 1970s, and the Republican Party’s need to gain political currency.

Tasked with aiding the Carter administration's crackdown on persisting forms of racial segregation–specifically amongst religious universities–the Internal Revenue Service's (IRS) investigations prompted a reactionary Republican strategy aiming to wind back federal interference.

Financial penalties faced by the evangelical Bob Jones University in Greenville, South Carolina in 1976, placed evangelism at the centre of this conservative bid for newfound grassroots engagement. Aware that a defence of segregation would likely not suffice in energising the electorate, conservative evangelical activists Jerry Falwell and Paul Weyrich saw abortion as a means of tapping into evangelical support.

In doing so, the religious right positioned any state action against the university and other such institutions as an infringement upon religious freedoms. Therefore, the heart of what it meant to be an American conservative became inextricably bound with abortion.

The Susceptibility of British Conservative Politics

As recent years have shown, contemporary British politics is not shielded from any opportunistic political stoking of culture-war fires. The success of the Brexit referendum in 2016 saw the reinvigoration of such rhetoric by many actors. Its place in politics was solidified by the wave of Conservative wins in North England by Boris Johnson in 2019.

Recent network analyses have shone a light upon the growing links between U.S. conservative lobbyists and British politics–notably that of the Mercer Family Foundation. Whilst Conservative politics have taken a more steady and level-headed approach under the leadership of market-minded Rishi Sunak, the nation’s brief sojourn with the Truss government provides a spotlight into the susceptibility of British conservatism to the reach of U.S. talking points, influence and tactics.

An ideologically homeless politician, Liz Truss attempted to invoke a bizarre contrarian brand of politics in a futile bid to ramp up popular support amongst party voters. Whilst not yet as desperate as 1970s American Republicanism, recent electoral losses faced by the Conservative Party highlight a susceptibility to resorting to cultural and moral issues to forge bases anew. Making abortion a debatable and politicised issue in Britain may certainly risk a reactionary move capitalised upon to retain prominence in Westminster.

Whilst we may agree that further measures can be taken to alleviate the pressures of women undertaking abortion, be it mental health services or otherwise, what is obvious is that the case of Carla Foster presents no such miscarriage of justice. Its flag flying by attention-hungry political activists is a grave misstep that risks jeopardising existing robust legislation supporting women's right to choose.

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