When Hampshire police found a human placenta in woodland in Southampton this summer, officers contacted the British Pregnancy Advisory Service (BPAS). The force wanted details of anyone who had been seen but turned away at a BPAS clinic because they were over the limit at which they could have an abortion – and anyone who had “disengaged having initially made inquiries to seek a termination”.
“That was potentially hundreds of women,” wrote Claire Murphy, the chief executive of BPAS, in her reply to the police. “We owe our clients a duty of confidentiality. If this is information you want, you’ll have to get a court order.”
The police deny making this approach, which is bizarre, as a paper trail seen by the Guardian shows the same request being made multiple times to BPAS branches in Bournemouth, Portsmouth and Southampton. There has been no further contact from the force.
However, these emails are representative of a striking acceleration in the prosecution of women who have had abortions beyond the 24-week limit. Scores of women have found themselves criminally investigated after losing a late pregnancy.
Until now, prosecutions have been vanishingly rare. Although abortion law was updated with the Abortion Act 1967, the 1861 law (the Offences Against the Person Act) was not repealed. That means parts of it still apply – including some relating to when a woman has an abortion after the 24-week legal limit.
Between 1861 and November 2022, three women in Great Britain were convicted of an illegal abortion (the Abortion Act was never extended to Northern Ireland). One was a refugee, in 2012, who was given a community order. The other two, in 2012 and 2015, were given jail sentences. Since December 2022, six women have been charged. They are awaiting trial.
The Abortion Act did not legalise abortion in England, Scotland and Wales. It partially decriminalised it, providing strict conditions were in place. One of these was confirmation from two medical practitioners that the pregnancy had not exceeded 28 weeks. This was reduced to 24 weeks in 1990. Any abortion that does not meet these conditions is a criminal offence and can be prosecuted, either under the Offences Against the Person Act or the Infant Life Preservation Act 1929. The maximum sentence is life imprisonment.
Carla Foster pleaded guilty to administering poison with intent to procure abortion in June. Her case is shocking. Foster obtained mifepristone, an abortion pill, by a remote consultation during lockdown, when she was over the 24-week limit. She had a stillbirth at home in May 2020. She was sentenced to 28 months in prison, which resulted in outrage from MPs, medical bodies and charities.
In July, an appeal judge halved the sentence to 14 months, suspended, meaning Foster would be released, concluding that it was a “very sad case” that called for “compassion, not punishment”. Another woman, whose identity has been protected, had her case dropped in Oxford last December; the judge said he was “flabbergasted” to see it in court.
Elliot Benham and Sophie Harvey, both 24, are due to go on trial next week for a pregnancy loss that happened in 2018, when they were teenagers. Another woman, Bethany Cox, will go on trial early next year for child destruction and procuring her own miscarriage when she was 19, using the abortion pill misoprostol. She denies the charges. Experts in the field know of two more cases due to come to court in the next few months.
Jonathan Lord, the co-chair of the British Society of Abortion Care Providers, says: “Just being accused is life-changing. Everyone is hard-wired to feel shame and stigma when a late pregnancy loss happens; they lost this healthy baby and it’s their fault. To then get called in by the police and interviewed under caution on suspicion of murder, to start going down the route of child destruction [which carries a life sentence], it just destroys people’s ability to cope and heal. We’ve had several reports of patients with quite severe PTSD – not from the pregnancy loss, but from the police investigation afterwards.”
Dr Hayley Webb, a GP who also works in an abortion clinic, is chair of Doctors for Choice. “It’s really disheartening that a lot of these women came to be where they are because they were reported by health professionals,” she says. This represents a fundamental breach of patient confidentiality. While there are circumstances in which breaches are justified – “where there’s a real risk to someone; a child, for instance,” Webb says – a late pregnancy loss is not one of them.
Most people don’t think this reporting is due to a new anti-choice tendency among medics, although Andrew Copson, the director of the British Humanist Association, asks: “Who could deny that there is anti-choice social conservatism in the air at the moment in this country?” In any event, the rules are clear. “If there is an anti-abortion motive, healthcare professionals thinking: ‘This is a viable foetus, therefore it’s got rights, therefore I need to report it,’ in law, that is absolutely not true,” says Lord. “It has rights when it’s out of the mother’s body and taken its first breath. In the obstetric world, we’re all taught: ‘If you know that you have to do a C-section or the baby will die, the mother must consent.’ We’re taught that. We know that.”
Lord and Murphy believe the greater awareness that abortion pills can be obtained, online and informally, means that more medical staff are coming into contact with those who have taken the drugs. In 2014, the Medical and Healthcare products Regulatory Agency reported record numbers of the pills being imported. Of those medics reporting women to the police, Lord says: “Although it’s not impossible some of it may be from anti-abortion sentiment, I think that’s relatively unlikely and will be sporadic. Most of the time, it is down to that ‘upright citizen’ attitude – ‘I’ve been told about a crime, it’s my duty to call the police.’
“What they don’t do is then make the next step, which is: ‘I am a healthcare professional, I’ve got confidential information about a patient.’ They’re never making that leap. In a couple of cases, I have spoken to the professional involved – they genuinely hadn’t thought about confidentiality. Had they read the General Medical Council code? What bit of that had they not understood?”
If women can’t reasonably presume trust when they access reproductive healthcare, the implications are profound. A huge amount of abuse, from domestic violence to child exploitation to sex trafficking, is picked up in an NHS setting. “If women hadn’t been able to trust us, we would never have identified it,” Lord says. “We can transform not only their lives, but also their entire families’ lives if we can bring them into the healthcare system and give them the support they need.”
Webb thinks many professionals have misunderstood their role in confidentiality. “They think that if they suspect a law has been broken, they have to report it. That is not true. If a patient is telling us they take class A drugs, we wouldn’t pick up the phone and call the police.”
Should the police investigate, the process is the stuff of nightmares. Lord describes a case of a teenager who had a stillbirth. She had a large number of risk factors, not least that she was very young, but it took a coroner more than a year to determine the pregnancy had ended due to natural causes. “She had her confidentiality completely destroyed – everything was being done while she was pregnant to make sure that nobody knew she had a progressing pregnancy, because of the community she was from, and then [after the stillbirth] the police raided the house. It was horrific. Everyone in her family, everyone in the community, knew.”
The girl’s phone and all her electronic equipment were seized, even though she was never charged, which meant that none of the agencies who had been supporting her during the pregnancy could reach her. It left her “completely isolated”, Lord says: “When you lose your phone and your computer, you lose all your social support.”
Another woman had all her electronics seized, including her work computer: “What do you tell your work?” Lord asks. “‘Oh, by the way, I’ve just been arrested and they’ve taken my computer’?” He is also concerned about period-tracker apps, which, to his knowledge, are yet to feature in any cases, but represent a very powerful data source. “A lot of the defences are going to be: ‘I thought I was 20 weeks, but I was actually more than that.’”
Women who already have children are terrified that their kids will be taken from them and placed into care, which makes those mothers especially vulnerable during an investigation; desperate to be seen to be agreeable, they often incriminate themselves unnecessarily. It was noted during Foster’s appeal that, without her testimony, there would have been no evidence and no case against her. You have to wonder how much her disclosure and cooperation were down to the fact that she had three children at home, the youngest of whom is autistic and dependent on her care. What career paths, what family connections, what futures have been closed off to those who face prosecution, let alone conviction?
In July 2022, a large number of stakeholders – from the Royal College of Obstetricians and Gynaecologists and the Royal College of Midwives to human rights organisations including Amnesty and Liberty, plus numerous barristers – signed a letter to Max Hill, the director of public prosecutions (DPP) for England and Wales. The letter asked for urgent guidance to “stop the prosecution of women who end their own pregnancies, with immediate effect”. “Everyone is very clear now that the moral imperative is to remove women from the criminal law,” says Murphy. “In Northern Ireland, all criminal penalties around women and gestation were removed in 2019.
Hill replied: “I hope that you will appreciate that parliament makes the law and the role of my prosecutors is to apply that law objectively to the facts of any case referred to them by the police.” Webb says “it could be read as a call to action”, but others found it weak.
It is true that the DPP merely enforces laws, but “you definitely want the DPP to be producing clear guidelines saying: ‘No one should ever be prosecuted for this’”, says Copson. “When Keir Starmer was DPP, guidelines on assisted dying made it very clear” when a prosecution should be considered in the public interest; the answer was “almost never”.
To look at this in the round: rape convictions are so low that the crime has been effectively decriminalised in the UK; and six women in one year are due to appear in court under a law that is out of step with most modern abortion frameworks. It would be fascinating to hear whether Hill is anxious about how women’s rights are intersecting with the justice system under his eye. He declined a request for an interview.
In the end, the solution lies with parliament: “A lot of people are just not aware that abortion remains a criminal offence in this country,” Webb says. “From a practical point of view, we need to get decriminalisation.” The situation as it stands is not evidence-based; it restricts care, preventing nurses and midwives from having a role in abortion even though they perform similar roles in miscarriage; it prevents people making commonsense decisions; it strips women of autonomy, needing two doctors to sign off on a termination; and it doesn’t lead to safer outcomes.
Moreover, “it feels wrong”, Webb says. “You feel patients needing to validate themselves and you want to say: ‘This is your decision; this isn’t my decision to make for you.’ But, right now, the primary reason to decriminalise is to stop any other woman being sent to jail for ending her pregnancy.”