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Abortion Should Be Removed From Criminal Law

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In October last year, Anand Grover, the UN Special Rapporteur on Health, produced a hard-hitting report, calling on states to refrain from using criminal laws to regulate sexual and reproductive health.

Urging governments to reconsider these laws "immediately", he said: "Criminal prohibition of abortion is a very clear expression of state interference with a woman's sexual and reproductive health because it restricts a woman's control over her body, possibly subjecting her to unnecessary health risks."

According to Grover, while public health goals can justify some degree of interference with personal freedoms, "it has been well documented that the public health goals are not realised through criminalisation; rather, they are often undermined by it".

The rapporteur's recommendations include decriminalising abortion, including related laws, such as those concerning abetment of abortion, and, as an interim measure, "the formulation of policies and protocols by responsible authorities imposing a moratorium on the application of criminal laws concerning abortion, including legal duties on medical professionals to report women to law enforcement authorities."

Prosecution disregard

It seems that the Crown Prosecution Service did not have regard to these recommendations when it charged Sarah Catt under section 58 Offences Against the Person Act 1861 (OAPA). Catt, who pleaded guilty, got eight years' imprisonment for unlawfully aborting her full-term baby last month: an extremely harsh sentence.

The judge's comments were damning. But the charge seems irrational. Section 58 OAPA provides: "Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing .... shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life."

Whatever mischief this was designed to prevent, having a baby is not it. Catt was 35 and married with two children. She had previously given up a baby for adoption while a student, and had had a previous termination. She became pregnant for the fifth time, after a workplace affair. Her husband did not know about it.

Catt sought help via the internet, after learning that she was over the normal 24-week time limit for a lawful abortion under the Abortion Act 1967. She ordered Misoprostol, a licensed drug that induces uterine contractions, on 14 April. It did not arrive until 10 May. Catt asked the supplier on 21 May what would happen if she took Misoprostol at term, and on 26 May, how long it would take to work.

By then, the judge accepted she was at term. Catt left for a family holiday in France on 27 May. Later, she told the police that the baby had been stillborn at the family home, but would not say where its body was. The authorities plainly suspected her of killing her baby.

Miscarriage definition

The website NHS Choices defines miscarriage as "the loss of a pregnancy that happens sometime during the first 23 weeks." Catt used Misoprostol to start the process of birth at term, so logically she could not have intended to procure her own miscarriage.

Similarly, if Catt's labour had been induced in hospital at term, would she and the doctors be charged under section 58? The necessary criminal intent (mens rea) would be lacking. An alternative charge could have been brought under section 60 OAPA, which forbids the secret disposal of a dead baby's body, with intent to conceal its birth.

The maximum penalty is two years' imprisonment. By contrast, section 58 carries a maximum penalty of life imprisonment. Catt's actions seem bizarre, but there was no evidence she did anything to cause her baby's death in utero. Term babies are designed to withstand the rigors of childbirth. Some may die intra partum from oxygen deprivation, infection or other causes. But a woman giving birth unattended could not know if her baby was becoming compromised during labour.

If Catt killed her baby afterwards, and the balance of her mind was disturbed, this would constitute infanticide, which is treated far more leniently.

Internet drugs

Catt's case shows that Victorian laws criminalising abortion make no sense, given the widespread availability of legitimate drugs via the internet, which can be used to induce abortion, or labour at term.

A recent Australian case, R v Brennan & Leach (2010) suggests that such laws should now be seen as a dead letter. It concerned a couple who were prosecuted for obtaining Mifepristone and Misoprostol from abroad, to terminate a pregnancy. Tegan Leach was charged under a Queensland law whose terms were almost identical to section 58 OAPA. The couple's expert, Professor Nicholas Fisk, whose fields are obstetrics and fetal medicine, told a court in Cairns that these drugs are licensed as medicines worldwide, and are on the World Health Organisation's Essential Medicines list.

The jury acquitted the couple in under 30 minutes. Brennan & Leach shows that Catt could have run a similar defence: she had not taken a poison or noxious thing. Her case is a good example of why the use of draconian criminal laws to scapegoat individual women is wrong-headed. Such laws should be repealed, as the UN has said, or else mothballed.

This article was first published by Solicitors Journal on 16 October 2012, and is reproduced by kind permission.