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.
Diane Abbott: We Must Recognise That Real Women's Lives Are at Stake in All of This
She was determined to procure an illegal abortion after that, and bought drugs to do so. She says she took the drugs and induced a stillborn baby. But won't tell anyone what she did with the remains. The chances are just as good that she gave birth and crushed the baby's skull or suffocated it, or even cut its head off as killed it in the womb. We know that whatever happened, it was murder in every definition of the law barring an affirmative defense of insanity, which was knocked back by psychologists.
Many articles like this one have been written, saying that Ms. Catt should not be jailed. I disagree:
1) She knew that it was illegal to abort the child two weeks before term.
2) She researched how she could perform an abortion.
3) She procured the drug and presumably took it.
4) She claimed that the baby was stillborn, however refused to divulge the whereabouts of the body.
5) The Judge rightly reviewed the psychiatric reports and concluded that she was of sound mind.
Give this behaviour in the face of her knowledge, a custodial sentence was the only course open to the Judge. Ms Catt planned and committed an assault on a viable person.
Now, imagine that this was a case of a man being held to account for trying to dispose of a two week premature baby, conceived with his lover, in order to deceive his wife.
I don't think that Barbara would have written this article calling for him to be spared prison and for the law to be reviewed.
We are, I am pleased to discover, still all equal before the law - for now at least.
Abotion anytime up to 24 weeks and after if medical grounds appertain but a few days prior to birth now that is stretching it. But of course its her right.
The law say mothers are best able to provide for children, some apparently not.
I fully agree that in the early stages of pregnancy (say, up to 24 weeks but I'm not an obstetrician so don't really know) women have the right to control over their own bodies. However, by 8 months I, and I think most people in our society, consider that the foetus, rather than a blob of cells, is a baby and, regardless of whether its mother wants, it has a right to live like any other human. I feel deeply sorry for this woman and her tragic circumstances, but if it's the case she deliberately tried to kill the baby then 8 years does not seem excessive.
Furthermore, is the UN not directing their comments at countries where all abortion is illegal, rather than suggesting abortion at all stages of pregnancy should be available to anyone who wants it?
http://www.huffingtonpost.co.uk/2012/09/17/sarah-catt-woman-aborted-baby-due-date-jailed-eight-years_n_1889691.html
"In July she pleaded guilty earlier to administering a poison with intent to procure a miscarriage."
"Sentencing Catt, who showed no emotion during the hour-long hearing, judge Mr Justice Cooke said she ended the life of a child that could have been born alive, adding Catt would have been charged with murder if the baby had been born a few days later and she had then killed him."
She knowingly took a poison to cause an abortion of her child one week before its due date.
I consider the sentence appropriate.
Without commenting specifically on the case mentioned, I find it difficult to agree that a woman's control over her body should not be balanced against the baby's right to life at the later stages of pregnancy. I don't believe that life begins at conception and I don't consider an early stage embryo to be equivalent to a human being, which is why I think that it is important that women should have the choice of a termination in the early stages of pregnancy. But I really struggle with the idea that self-aborting at 8 months should be legal when there was the option to discontinue the pregnancy before the foetus develops to the stage where it would be a viable human being.