R v Foster: Compassion over Punishment, and the Discourse about Pregnant Women

A recent decision to sentence a woman to 28 months’ imprisonment for an abortion she had at a late stage of pregnancy, with a minimum of 14 months spent in custody, attracted significant public attention. In this case, Carla Foster was found to have illegally procured her abortion, after obtaining abortifacients by post during the pandemic, in circumstances when she did not have access to the kinds of support and counselling that would normally be available to women. She led the provider to conclude that her gestational stage was less advanced than it was, and subsequently gave birth to a stillborn child, who was thought to have reached between 32 and 34 weeks of gestation at the time of delivery. The decision was met with much criticism, with some people thinking the sentence was overly harsh. Detaining Foster also had consequences for her three children, one of whom has special needs. 

The Court of Appeal reduced the sentence to 14 months’ imprisonment, and suspended it, with the effect that Foster was released from custody. According to the available summary of the decision, Dame Victoria Sharp said that there was extremely strong mitigation, and that there was no useful purpose in detaining Foster in custody. She mentioned that Foster was at the time extremely distressed, that there is no prospect of the offence being committed again, and that Foster is remorseful. 

There are a few more immediate points to make about this case. The first is that the Court of Appeal’s decision was on sentencing, and did not change the law. Abortion is still a criminal offence, and it is still the case that a woman can potentially receive a custodial sentence. The maximum sentence is life imprisonment.  

Another point is that this case highlights how it is in fact not that difficult for an abortion not to be lawful. Although there is a dominant discourse in society based on abortion rights, or abortion as health care, the law itself does not reflect this. It is true that, in practice, access to abortion, at least in the early stages of pregnancy, is fairly liberal, but any misstep in the operation of the law can mean that a serious criminal offence has been committed. While the abortion in this case took place at a late stage in pregnancy, at a time when the law is more restrictive, an offence can also be committed when the abortion takes place at a very early stage. The case has brought renewed calls to reform abortion law, and much of the discussions around the case has focused on this. 

There is a lot to be said about the operation of the law, and reasons that would justify legal reform. Very much has been written on this, but I will not attempt to summarise these detailed legal discussions here, or rehearse the many arguments on the morality of abortion or on decriminalisation. Instead I would like to focus on one point which I think has not received sufficient attention, either in relation to this case, or to arguments on abortion more generally, and that is not directly about the law. 

Dame Victoria Sharp said that the case ‘calls for compassion, not punishment’. This statement was no doubt related to the particular circumstances at issue, but I think we should in fact give more importance to the attitudes that we have about pregnant women more generally, or about women for their actions during pregnancy. Whatever the particular circumstances present in pregnancy, I think there are reasons to adopt a certain attitude that recognises the uniquely important role played by a pregnant woman. 

It is trite to say that pregnancy brings about burdens that significantly and disproportionately affect women. It might also seem obvious to say, but might also be worth remembering, that without pregnant women our species would cease to exist. There are many useful things we as human beings can do with our lives, but surely one rather useful thing is creating human beings in the first place. We do not do nearly enough to acknowledge this, and to support pregnant women. Our failings also affect women who do not have children, because even they can experience, for example, discrimination on the basis that they might become pregnant.  

Instead of feeling mostly gratitude towards all women who are pregnant, many people are quick to blame them if their conduct appears to fall short, and to try to control their decisions in pregnancy. Furthermore, I think it is important to accept that a pregnant woman is also in a sense ‘more than one’; whatever one thinks about the moral status of the fetus, we can think that she, herself, has a particularly important status.  

Because of these above considerations and others, I have recently proposed that there are reasons to recognise that pregnant women have a superior moral status, and should have more rights as a matter of justice. My argument would be compatible with a number of different approaches to the law on abortion, but it would always only be consistent with a respectful, and indeed perhaps a reverential, attitude towards pregnant women. 

There was a lot of unpleasant discussion in the wider public discourse about this case. I am sure that many people genuinely feel that their conscience tells them that abortion, or late term abortion, is morally wrong, even though others have different intuitions. But I am also sure that many people condemn women who have abortions because they are in reality misogynistic, and do not care much at all about the fetus. It is to be expected that people will hold and express different views on abortion, but in a case like this one those who like to blame women can come out in force.  

Whatever one’s views about abortion, and whatever the law provides, we can speak about pregnant women respectfully. In some cases, compassion is better than punishment. And often as well, gratitude is better than blame. 

It is true that different attitudes about pregnant women, on their own, might not have led to a different result in this case. I also do not mean to suggest that we cannot respect pregnant women while also believing that late abortion is undesirable. As I say above, the recognition that pregnant women have a special role and status does not mean that there is only one acceptable approach for the law to take. Nevertheless, if a pregnant woman does something in relation to her pregnancy that some people disagree with, we should be careful about the attitudes which dominate our discussions. While there is still more to be said about the law, this approach could, at least, greatly improve our public and academic discourse.