AbortionAbortion and the Law – Is it in the Public Interest to Prosecute?

Written by: Shelley Gregory, PNLD Legal Adviser

Not reviewed after the date of publication - 25 March 2024.

* Warning - This article will cover content of a sensitive nature.

It has recently been reported that an unprecedented number of women are being investigated by the police for illegally procuring an abortion. Abortion is an offence, and exceptions apply to the medical termination of pregnancies under specific conditions and up to a certain time during the pregnancy.

In this article, PNLD Legal Adviser, Shelley Gregory, explores the legal position in relation to abortions and when it would be in the public interest to prosecute.

Relevant Legislation

The main offences relating to abortions are included in the Offences Against the Person Act 1861 and the Infant Life (Preservation) Act 1929, with a defence being provided by the Abortion Act 1967.

Offences Against the Person Act 1861

Section 58 of the Offences Against the Person Act 1861 makes it an offence to administer drugs or use instruments to procure abortion.

“58 Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life.”

The meaning of “lawfully” was interpreted in the case of R v Bourne (1939) (a case heard in the Court of Criminal Appeal, Northern Ireland). Bourne was an obstetrical surgeon at a hospital and, in the knowledge that the violent rape of a 14-year-old girl had resulted in pregnancy, performed a termination operation on the girl - with the consent of her parents. It was alleged that Bourne had used an instrument with intent to procure the miscarriage of that girl, contrary to the provisions of section 58 of the Offences Against the Person Act 1861. It was held that an illegal abortion had not been performed as it was done to preserve the life of the mother – and this included circumstances where the continuance of the pregnancy would make the mother a ‘physical or mental wreck.’

In the recent case of R v Foster [2023] EWCA Crim 1196, Foster, a mother of three and a person of good character who lived a useful and usually law-abiding life, had separated from the father of her three children. During the separation she had intimate relationships with two males and became pregnant, though she did not know by which one. As the coronavirus pandemic saw England and Wales sent into lockdown, Foster decided to move back in with the father of her children for the sake of the children but concealed the pregnancy from him. In 2020, Foster contacted the British Pregnancy Advisory Service (BPAS) and provided them information which she knew to be false, in order to receive abortifacient drugs by post. Foster pleaded guilty to procuring her own miscarriage, contrary to section 58 of the Offences Against the Person Act 1861, when she took abortion tablets to end her pregnancy – she was between 32 and 34 weeks pregnant at the time. Initially, sentenced to 28 months’ imprisonment, this sentence was reduced by the Court of Appeal to 14 months’ imprisonment, suspended for 18 months, with a rehabilitation activity requirement of up to 50 days. The effect of this successful appeal was that Foster was immediately released from custody.

Section 59 of the Offences Against the Person Act 1861 makes it an offence to supply or procure poison or instruments to cause an abortion.

“59 Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be kept in penal servitude.”

Prescribing the morning after pill is not an offence under either section 58 or 59 of this Act (R (on the application of Smeaton) v Sec of State for Health (2002)).

Abortion Act 1967

The Abortion Act 1967 provides a defence to the above offences. According to information released by the Royal College of Obstetricians and Gynaecologists, most abortions are carried out under section 1 of the Abortion Act 1967. Section 1 of the Abortion Act 1967provides for the medical termination of pregnancy provided specific conditions are fulfilled:

“1(1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith -

  1. that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family;  or
  2. that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or
  3. that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or
  4. that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.”

Therefore, under the law of England and Wales, the current position is that it is illegal to terminate a foetus after the 24th week of pregnancy, unless a threat to the life or health of the mother or foetus develops. Medically, it is regarded that the 24th week of pregnancy is the point at which the child is capable of being born alive. It was held in the case of R (on the application of British Pregnancy Advisory Service) v Secretary of State for Health and Social Care (2020) that the correct construction of the words 'the pregnancy has not exceeded its twenty-fourth week' in section 1(1)(a) of the Abortion Act 1967 is that a woman will have exceeded her 24th week of pregnancy once she is 24 weeks + 0 days pregnant.

During the coronavirus pandemic, a temporary approval for at-home early medical abortion following a telephone or video consultation with a clinician was adopted. This approach was permanently maintained where, from 30th August 2022, section 178 of the Health and Care Act 2022 amended the Abortion Act 1967 to make provision for early medical termination of pregnancy with the insertion of subsections 1(3A)(b) and (3B) to (3D) into the Abortion Act 1968. These provisions provide for the medication for early medical abortion to be taken in the home of the pregnant woman where the pregnancy has not exceeded 10 weeks, and permits registered medical practitioners to prescribe the medication for early medical abortion from their homes. The exploitation of this legislation being seemingly easy, as can be seen in the case of Foster detailed above.

Infant Life (Preservation) Act 1929

A related offence is provided in section 1 of the Infant Life (Preservation) Act 1929 which creates the offence of child destruction, subsection (1) provides:

“1(1) Subject as hereinafter in this subsection provided, any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of an offence, to wit, of child destruction […].

Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother.”

A pregnancy reaching the 28th week is prima facie proof that the foetus is capable of being born alive (subsection (2)). In the case of In Rance v Mid-Downs Health Authority (1991), a child was defined as being capable of being born alive if:

“… after birth, it exists as a live child, that is to say, breathing and living by reason of its breathing through its own lungs alone, without deriving any of its living or power of living by or through any connection with its mother.”

This provision affords legal protection to the foetus that is capable of being born alive until it qualifies as a human being, where it will subsequently receive protection under the common law offence of murder and the offence of infanticide (section 1 of the Infanticide Act 1938).

In accordance with the provisions of section 5(1) of the Abortion Act 1967, no offence under the Infanticide Act 1938 is committed by a registered medical practitioner who terminates a pregnancy.

Is it in the Public Interest to Prosecute?

The Code for Crown Prosecutors sets out the general principles Crown Prosecutors should follow when they make decisions on cases. In every case where there is sufficient evidence to justify a prosecution, or to offer an out-of-court disposal, prosecutors must consider whether a prosecution is required in the public interest. In doing this, the prosecutor will consider a set of questions listed in the Code at paragraph 4.14 a) to g) – the answers to which will be case specific to be determined by the prosecutor on a case-by-case basis:

  1. How serious is the offence committed?
  2. What is the level of culpability of the suspect?
  3. What are the circumstances of, and the harm caused to the victim?
  4. What was the suspect’s age and maturity at the time of the offence?
  5. What is the impact on the community?
  6. Is prosecution a proportionate response?
  7. Do sources of information require protecting?

In January 2024, the Royal College of Obstetricians and Gynaecologists (RCOG), alongside the Faculty of Sexual and Reproductive Healthcare (FSRH), British Society of Abortion Care Providers and the Faculty of Public Health, indicated that a best practice guidance for healthcare professionals, outlining that they are under no legal obligation to contact the police following an abortion, pregnancy loss or unattended delivery, was soon to be published.  This guidance has been developed due to concerns at the increasing number of police investigations following later gestation abortion and pregnancy loss. The RCOG and the FSRH have stated that, “it is never in the public interest to investigate a patient who is suspected of ending their own pregnancy.”

The now published guidance for healthcare staff.

Agencies following Abortion, Pregnancy Loss and Unexpected Delivery, detailed the recommendations for healthcare professionals within the report, summarised below to include:

  • Do not call the police or external agencies if a woman divulges, or you are suspicious, that she may have sought to end her own pregnancy unless she has given explicit consent to do so, or you consider it justified in her best interests.
  • Do not divulge information to the police or external agencies without a woman’s consent unless you are concerned for her safety or the safety of others.
  • Healthcare professionals and organisations must be able to justify any disclosure of confidential information.
  • Do not take blood tests or other samples at the request of the police unless you are sure the patient has given their fully informed consent, or there is a court order instructing you to do so.
  • Where police request information and state that the patient has given consent, healthcare professionals and organisations must satisfy themselves that this consent is valid.
  • Only information that is relevant to the stated need of the investigation should be released.
  • Where faced with a police or coroner’s enquiry, clinicians should seek the advice of senior staff in their organisation prior to communicating with any external agency unless they have an overriding concern over the safety of the woman or others.
  • Organisations should have clear policies and procedures to ensure that requests for medical records or statements from staff are managed in line with their duties of confidentiality and proportionality.
  • Where there are safeguarding concerns for the safety of the patient, or any other family member including children, this should be managed through the organisation’s safeguarding and child protection procedures. These processes are beyond the scope of this guidance.

In the case of Foster (referenced above), admissions made by her to the police meant the evidential stage was met, but was it in the public interest to prosecute? The CPS determined that it was, and a prosecution was successfully pursued. However, on appeal, it was noted by the court that it was doubtful that Foster would have been prosecuted but for her admissions. The pre-sentence report author noted that “Foster was very emotional throughout the interview, and that she had expressed deep and genuine remorse for her actions, which she said would haunt her forever and had experienced extreme trauma in the aftermath of the reality of her actions". The Court of Appeal considered that an adjustment of sentence was required due to the strong mitigating features of the case as this was a “very sad case that called for compassion, not punishment.” It was decided there was no useful purpose served by detaining Foster in custody and her amended sentence resulted in her immediate release. Could this indicate the judicial approach to similar cases in the future?

Final Word

The law provides protection to a foetus against abortion at the 24th week of pregnancy, unless a serious medical threat to the life or health of the mother or foetus develops, in which case, the foetus is no longer protected from being terminated; yet, the law relating to child destruction protects a foetus when it is ‘capable of being born alive’ – prima facie proof of that being reaching the 28th week of pregnancy. Therefore, there is an overlap between the section 58 offence and the offence of child destruction contrary to section 1 of the Infant Life (Preservation) Act 1929, as procuring a miscarriage so as to kill a child capable of being born alive may amount to both offences. Both provisions, however, are subject to the Abortion Act 1967.

Notably, the relevant legislation in this area came into force many years ago with a recent addition that may not be fit for purpose, and so it is questionable whether the current laws accurately reflect the requirements of today’s society, or if they are antiquated and in need of reform. The decision and judicial comments in the case of Foster certainly give rise to a potential shift in the attitude of the judiciary towards prosecutions of this type. However, this emotive topic will always be divisive, but it remains necessary to continue to strive to achieve a balance between the rights of the woman and the rights of the foetus.

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