The recent imprisonment of a woman in the UK for obtaining abortion pills during the late stages of her pregnancy has sparked shock and outrage. Many people remain unaware that abortion is illegal in England and Wales unless two doctors authorize it. Any woman who obtains abortion medication from unofficial sources may face life imprisonment under the Offences Against the Person Act 1861. Likewise, using legally obtained medication in any way other than as directed, such as delaying taking the medication, can also lead to imprisonment.
The criminalization of abortion, or “procuring a miscarriage,” was initially established in the 1800s to protect women from the dangers associated with unsafe procedures. Surgical abortions were the only option at the time, without the benefit of antibiotics or effective remedies for complications. Nowadays, accessing legal abortion services is incredibly safe, far safer than carrying a pregnancy to full-term. This begs the question: what purpose does this offense serve today? Judging from the sentencing hearing in this case and others, it appears that the law is primarily being used to protect fetuses. The judge focused on the advanced stage of the woman’s pregnancy, considering it an aggravating factor in the case. He referred to her “daughter” as “stillborn.” However, it is crucial to note that the offense of procuring a miscarriage, as outlined in the Offences Against the Person Act, does not specify the gestational stage of the pregnancy. Furthermore, the offense does not require the death of the fetus. Women who illegally terminate their pregnancies at an early stage have not been prosecuted, which indicates that the law focuses on protecting fetuses that could potentially survive if born alive, rather than preventing abortion.
This recent case may have shocked many people due to the advanced stage of the woman’s pregnancy when she obtained the abortion pills. The limited details available suggest that she, like other women in similar situations, acted out of extreme vulnerability and crisis. It is important to recognize that no woman desires a late-term abortion. The decision to seek one arises from desperation. During the sentencing, the judge acknowledged the woman’s “deep emotional attachment” to her unborn child, a sentiment shared by many women facing similar circumstances. These pregnancies are not simply unwanted situations resulting in delayed abortions. Women who self-induce abortion in later stages of pregnancy do not necessarily want the unborn child to die. They often find themselves in situations where they believe it is impossible, perhaps due to fear of violence or abuse, to bring a child into the world.
Some may argue that a late-term fetus is no different from a newborn baby, therefore warranting criminal legal protection for both. However, applying the criminal law in this manner poses significant risks for women, babies, and fetuses alike. In the United States, many states explicitly protect the unborn child, leading to the arrest, detention, and imprisonment of women following miscarriages and stillbirths. Women can be penalized for asserting their right to refuse medical care during pregnancy and engaging in behavior that would otherwise be legal if they were not pregnant. As is often the case with crime control, vulnerable populations—such as women of color and those with lower socioeconomic status—are disproportionately affected by these punitive measures. Additionally, there is a clear correlation between fetal protection laws and the undermining of reproductive rights, as evidenced by the overturning of Roe v. Wade, the Supreme Court case that guaranteed the right to abortion in the US. Protecting a fetus in the law directly threatens reproductive rights.
Criminalizing pregnant women has also had dire consequences for fetuses and babies. While fetal protection laws aim to prevent harm to unborn babies, the fear of legal sanctions has led many women to avoid seeking medical care during pregnancy. This lack of antenatal care often results in pregnancy complications. There is also evidence suggesting that women in the US have sought abortions to evade prosecution under fetal protection laws. For instance, one woman faced charges of reckless endangerment of her fetus after inhaling paint fumes but had the charges dropped after terminating the pregnancy. In some cases, attempts to “protect” fetuses lead to worse health outcomes or even death for both fetuses and pregnant women.
The question of whether the criminal law should provide protection for fetal life is a complex one, and it should be left to parliament to decide. However, the judiciary and the Crown Prosecution Service, who determine whether to prosecute women, have construed procuring a miscarriage as a crime against the fetus. They have decided that women should be punished if their actions result in the death of an unborn child during later stages of pregnancy. This interpretation expands the scope of the statute beyond the original intent of parliament. It is high time for parliament to thoroughly and compassionately review this area of criminal law.
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Jessica Irvine is a tech enthusiast specializing in gadgets. From smart home devices to cutting-edge electronics, Jessica explores the world of consumer tech, offering readers comprehensive reviews, hands-on experiences, and expert insights into the coolest and most innovative gadgets on the market.
