The imprisonment of 44-year-old mother of three Carla Foster for inducing an abortion after the legal limit has exposed the UK’s archaic abortion legislation and highlighted the increasingly aggressive use of state power against society’s most vulnerable.

Sentenced to 28 months by Justice Edward Pepperall, Foster will serve half of it in custody and the rest on license. She pleaded guilty in March under the Offences Against the Person Act 1861, which carries a maximum sentence of life imprisonment.

The law criminalises “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.” The Abortion Act 1967 left the old law in place, but created a legal defence for abortion if two registered medical practitioners are of the opinion that the pregnancy poses a:

• Risk to the life of the mother (this had been in place since 1929).
• Risk of grave injury to the physical or mental health of the mother.
• Substantial risk that the child would suffer from seriously handicapping “physical or mental abnormalities”.
• Up to 24 weeks of pregnancy, risk of “injury to the physical or mental health of the pregnant woman or any existing children of her family.”

The vast majority of abortions are carried out on this last ground.

In other words, women in Britain do not have a right to abortion, only exemption from prosecution if certain conditions are met—the same as the legal status of strike action. The Abortion (Northern Ireland) Regulations 2020 allows abortion up to the twelfth week of pregnancy without conditions.

Foster terminated her pregnancy after 32-34 weeks using medication received through a “pills by post” scheme set up during the Covid pandemic, after lying to the British Pregnancy Advisory Service (BPAS) about how advanced her term was. She discovered she was pregnant in December 2019 and contacted BPAS in May 2020 after Googling, “How to hide a pregnancy bump”, “I need to have an abortion but I’m past 24 weeks.”

It is clear she received no support under immensely difficult personal circumstances and has suffered enormously for what happened. According to the BBC, “The court heard she had moved back in with her estranged partner at the start of lockdown while carrying another man’s baby.”

The judge’s decision acknowledged that she had been “in emotional turmoil” at the time, was now “racked by guilt” and had “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.” After taking the medication, she had to be admitted to hospital.

Pepperall’s comment during sentencing that if Foster had plead guilty at her first opportunity, a custodial sentence could have been avoided is vindictive—especially given that the charges against her switched from “child destruction” to administering drugs or using instruments to procure abortion after the legal limit.

The court’s decision received widespread professional condemnation. Chief executive of BPAS Clare Murphy said she was “shocked and appalled” by the verdict and called for abortion law reform.

A letter sent to Pepperall in April by organisations including the Royal College of Midwives and the Royal College of Obstetricians and Gynaecologists warned of the chilling impact of a custodial sentence. Both groups, and the British Medical Association, have called for abortion to be decriminalised.

Murphy pointed out, “Over the last three years, there has been an increase in the numbers of women and girls facing the trauma of lengthy police investigations and threatened with up to life imprisonment under our archaic abortion law.” These include a 15-year-old girl subjected to a year-long investigation after an early stillbirth. A mother of one served two years in prison after inducing a traumatic miscarriage in 2019 much later in her pregnancy than she realised under pressure from an abusive partner not to see a doctor.

Moves to imprison these individuals reflect an attitude of hardened indifference and callous cruelty in the legal system and the ruling class, akin to the Victorian elite who implemented the original 1860s law. Feeling the capitalist system they defend exposed, judges and politicians are less and less able to acknowledge the damning social causes and necessarily fundamental social solutions to personal tragedies, shifting the blame by branding individuals.

In the case of abortions carried out beyond the legal limit, women are crushed for actions only ever taken in extremis. Fully 89 percent of abortions in 2021 were performed within 10 weeks—up from 78 percent in 2011. Just 1 percent were performed at 20 weeks. Legal post-24-week abortions make up just 0.1 percent of the total.

Foster’s treatment cannot be separated from the reactionary trend in bourgeois politics expressed and advanced by the June 2022 overturning of Roe v. Wade in the United States, effectively denying millions of American women any right to an abortion.

All manner of far-right and ultra-conservative religious elements are being mobilised by the ruling class to strengthen itself against a looming social explosion. Last summer, the UK government dropped commitments to abortion and sexual health rights from a statement on gender equality following a UK-hosted conference on freedom of religion and belief—to which co-chair of the parliamentary “pro-life” group Fiona Bruce MP was appointed the prime minister’s special envoy.

Bringing an end to cases such as Foster’s means a political fight against these forces, defending individuals from the punitive scapegoating of the state and securing reproductive rights together with a massive improvement in pre-natal care, availability of medical services and all forms of maternal and family support. The constituency for this programme is the working class which bears the brunt of state cruelty and must take up these causes as part of the socialist movement against social inequality, authoritarianism and war.