The “chilling effect” of the criminal law
By Liam Gibson | 2 August 2023
Few crimes are more heinous than the premeditated killing of a child. And yet, no act of violence has gained greater social acceptance than the deliberate destruction of a baby in his mother’s womb. In 2020, the lives of 210,860 children were ended by abortion in England and Wales. One of those children was Lily Foster, whose mother Carla procured an illegal abortion 32 to 34 weeks after Lily was conceived.
Everything about the Baby Lily case is shocking and tragic. Early in 2020, the English Health Secretary introduced measures to prevent the spread of Covid-19. Elective surgeries and non-essential medical appointments were suspended. Almost all abortions in Britain are purely elective, yet these were not to face restriction. Rather, the abortion process would be streamlined. The requirement for women to receive an in-person consultation was dropped. After verifying their details with a simple telephone call, women up to 10 weeks of pregnancy would have abortion drugs posted to them. All warnings that this would encourage the illegal use of the drugs were ignored; nothing was to be allowed to delay access to abortion.
Aged 42, Carla Foster had three children when, during the early period of the Covid-19 pandemic, financial difficulties led her to move back into the home of her former partner. However, she concealed the fact that she was carrying a baby fathered by another man. When she contacted the British Pregnancy Advisory Service on 6 May, she claimed that she was seven weeks and four days pregnant. The abortion providers accepted this without question and sent her the drugs. She took the first pill on Saturday 9 May and the second two days later.
Immediately after the abortion, Foster called for an ambulance but the misleading information she provided delayed the arrival of paramedics. When they finally did arrive at 7 o’clock, they attempted, unsuccessfully, to resuscitate the little girl. She was pronounced dead at 7:45pm. There were no indications of a condition that would have caused a miscarriage and no sign that death was caused by a physical trauma. Foster maintained that she was unaware of the stage of her pregnancy, even though it must have been obvious that Lily was well beyond the 24-week legal limit for abortion and capable of being born alive. Finally, Foster admitted the truth. A subsequent examination of her internet history revealed that she had believed that she was 28 weeks pregnant. She was charged with procuring an unlawful miscarriage under section 58 of the Offences Against the Person Act 1861 (the 1861 Act), pleaded guilty and was sentenced to 28 months in prison. Commenting on his decision, Mr Justice Pepperall said:
“You were not suffering from any serious mental illness at the time of this offence. I accept, however, that there is evidence of emotionally unstable personality traits. More significantly, I accept that you feel very deep and genuine remorse for your actions. You are wracked by guilt and have suffered depression. I also accept that you had a very deep emotional attachment to your unborn child and that you are plagued by nightmares and flashbacks to seeing your dead child’s face.”1
In a highly inappropriate and virtually unprecedented move, leading medical bodies such as the Royal College of Obstetricians and Gynaecologists wrote to the judge arguing that a custodial sentence would have a chilling effect on women seeking late term abortions. Once news of the case was made public, a media firestorm erupted. Leading abortion advocates tabled urgent questions in the House of Commons to demand the decriminalisation of abortion while the Government washed its hands of all responsibility for the change in policy that led to the death of Baby Lily. Both politicians and the media consistently referred to Carla as a mother of three, even though it was the violent death of Lily, her fourth child, that lay at the very heart of the matter they were discussing. This apparent blind spot seems to reflect an inability to recognise the humanity of a child who was unwanted.
Despite the extreme nature of the case and the horror expressed even by some commentators who described themselves as pro-choice, the decision to send Foster to prison for the death of her daughter has given renewed incentive to the campaign to decriminalise abortion in England and Wales. Unlike the situation in the USA, where Roe v Wade swept away all pre-existing pro-life legislation, the Abortion Act did not repeal the previous law; it simply created a defence for doctors who performed abortions in line with its provisions. Anyone who fails to comply with those provisions, including a woman who ends her pregnancy herself, is criminally liable under sections 58 and 59 of the 1861 Act. It is this legislation that abortion advocates want Parliament to repeal.
But while abortion ostensibly remains a crime, the Abortion Act 1967 successfully medicalised the issue. It made abortion seem respectable and turned doctors into gatekeepers allowing women to access abortion under their supervision. Despite this, the Act’s deliberately vague language has resulted in the procedure becoming so commonplace that, 56 years on, most people now think of it as a legal right. This cognitive dissonance can be seen with the abortion lobby itself. On the one hand, campaigners argue that a medical procedure should not be subject to criminal law. Then, almost within the same breath, they will claim that women — not doctors — must be free to procure an abortion for any reason, at any stage of gestation and without the threat of prosecution.
Of course, the claim that no other “healthcare procedure” is subject to criminal law is untrue. All medical practice is governed by criminal law. A doctor practising without a licence will be prosecuted and a clinician who even touches a patient without prior consent could be charged with battery. It is criminal law that defines the boundaries of what can be tolerated in an ordered society. It is our chief restraint on acts of aggression and exploitation and holds out the prospect of just retribution for such acts. The educative function of the law shapes our fundamental ideas of right and wrong. As Piotr Szwedo of Jagiellonian University, Cracow observes:
“The very fundamental function of law is to direct human behaviour: to maintain and preserve social peace and order. When legal regulations are coherent with other types of social norms, they provide individual and collective stabilisation, as they are secured by the state’s coercion.
Law may also promote social, cultural and economic change. Depending on predefined political paradigms, law has a capacity to direct transformations. Especially in the area of human rights, which are strongly correlated with other types of norms and out-of-law values, law may promote evolutions which are in a line or in opposition to social preferences.”2
But the claim that abortion is healthcare is even more outrageous; it can no more be considered healthcare than infanticide can be regulated as a medical procedure. Under the Stuart Bastard Neonaticide Act 1624, mothers of illegitimate children found attempting to conceal the birth of a child by hiding the body were to be assumed to be guilty of murder and would therefore face the death penalty.3 By the middle of the nineteenth century, attitudes had changed. As awareness of puerperal insanity and sympathy for the desperate plight of abandoned mothers grew in Victorian society, execution was no longer consider appropriate for women convicted of killing their own children.4 This change was reflected in the reframing of “new born child murder” as infanticide. Nevertheless, the compassion for mothers only tempered the punishment, it did not blot out the gravity of the crime. Until relatively recently, a woman convicted of killing her child, either before or after birth, could expect a custodial sentence. Today, however, it is the idea that women should be held to account for an act of violence that we are expected to regard as an affront to justice.
On 18 July, the Court of Appeal reviewed the Carla Foster case. It quashed the sentence of 28 months’ imprisonment and substituted a sentence of 14 months instead. This was then suspended for 18 months. While the judges of the Appeal Court were, no doubt, aware of the political significance of their judgement, Foster’s immediate release from prison failed to placate abortion advocates. Despite the fact that the justice system had denied them a martyr for their cause, they were determined that no one was going to shoot their fox. Maria Miller, a former Conservative Minister for Women and Equalities, tabled a so-called Ten Minute Rule Bill; a procedural device that allows backbenchers to promote an issue of concern. Miller called for sentencing guidelines for convictions under sections 58 and 59 of the 1861 Act as an interim measure until abortion laws could be reformed. Speaking against Miller’s proposal, her fellow activist from the Labour Party, Stella Creasy, complained that nothing short of immediate repeal would be adequate. Creasy complained that Carla Foster was still required to undertake community service for up to 50 days.5 Although the courts could hardly have been any more lenient, the campaign to erase all legal protection for unborn children is set to continue.
The criminal law defines a society’s perception of right and wrong and the decriminalisation of abortion will inevitably change attitudes to infanticide. In 1969, the Canadian Government repealed the legislation analogous to England’s 1861 Act. However, the law that replaced it was later struck down by the court and all subsequent attempts to pass legislation have failed. Canada, therefore, is one of the very few nations without any abortion laws.
On 13 April 2005, 19-year-old Katrina Ann Effert gave birth to a baby boy, subsequently named Rodney. She strangled him, wrapped his body in a towel and threw his remains over a garden fence into her neighbour’s property. She was tried twice for second-degree murder and sentenced to 10 years. The Alberta Court of Appeal, however, decided that the jury had made a mistake. The murder charge was replaced with infanticide — a lesser offence but one which could still incur five years’ imprisonment. The court, however, handed down the sentence of time served for improper disposal of a body and a suspended sentence for infanticide.
Setting out the rationale for the decision, Justice Joanne Veit stated:
“Whilst many Canadians undoubtedly view abortion as a less than ideal solution to unprotected sex and unwanted pregnancy, they generally understand, accept and sympathise with the onerous demands pregnancy and childbirth exact from mothers, especially mothers without support.”6
Perhaps when Effert strangled her son, her state of mind was such that she deserved to have her sentence reduced. Yet, the ease with which the judge moved from the casual acceptance of abortion as a less than “ideal solution” to the toleration of the violent death of a new born child provides a truly chilling warning of where the abandonment of criminal law can lead.
- R v Carla Foster, 12 June 2023, Sentencing Remarks of Pepperall J, 20.
- Piotr Szwedo, “Educative function of law in the fragmented international legal order: case of right to water v Investment Protection” in Krzysztof Mazur et al (eds.), Promoting Changes in Times of Transition and Crisis: Reflections on Human Rights Education, (Archeobooks, 2013) pp 209–22.
- Arlie Loughnan, “The ‘Strange’ Case of the Infanticide Doctrine”, (2012), Ox J Leg Studies, 32, 4, pp 685–711, 690.
The Act was titled “An Act to Prevent the Destroying and Murthering of Bastard Children” and is also known as the ‘Concealment of Birth of Bastards’ Act 1624.
- Paige Mathieson, “Bad or mad? Infanticide: insanity and morality in nineteenth-century Britain” (2020) Midlands Historical Review, 4.
- Offences against the Person Act 1861 (Sentencing Guidelines), Hansard, 19 July 2023.
- “Infanticide conviction nets Alberta woman suspended sentence”, CBC News, 9 September 2011.