Carla Foster Stoke: Woman jailed for late abortion in England could not be prosecuted in Northern Ireland, campaigners agree

They were speaking after Carla Foster, 44, was given a 28-month extended sentence after she admitted illegally procuring her own abortion when she was up to 8.5 months pregnant.

Abortions are only legal in England after six months in exceptional cases and must be carried out in clinics after 2.5 months of pregnancy.

Stoke-on-Trent Crown Court heard Foster was sent the drugs by the British Pregnancy Advisory Service (BPAS) after she lied about how far along in her pregnancy she was during 2020’s pandemic lockdown.

Her baby - later named Lily - was born not breathing and despite resuscitation attempts by paramedics, was pronounced dead at hospital.

High Court Judge Mr Justice Pepperall said: "I accept you have a deep emotional attachment to your unborn child and you are plagued by flashbacks, seeing your dead child's face."

Wesley Mitchell, spokesman for Abolish Abortion NI, says that all abortions were originally outlawed in England and Ireland in 1861 by the Offences Against The Person Act. Later this was relaxed in England and Wales for specified cases by the 1967 Abortion Act.

"However abortion in England and Wales is still governed by the criminal code. The 1967 Act just gives legal exemptions in certain cases.

"But in Northern Ireland, the Abortion (Northern Ireland) Regulations 2020 took abortion completely out of the jurisdiction of the Offences Against the Person Act for women seeking abortions.

"If you step outside the abortion guidelines in England, you can go to jail. But in Northern Ireland there is no penalty at all - with the exception that you may be convicted and fined if you provide an abortion unlawfully to someone else."

Dawn McEvoy of pro-life campaign group Both Lives Matter said no MP from Northern Ireland supported the 2020 Abortion Regulations which liberalised the law here.

"They were voted through by MPs from England, Scotland and Wales," she said. "MPs were effectively told that they were voting through the same legislation that exists in England. But that is not what the pro-choice lobbyists drafted. It was complete decriminalization.

"Now in NI, no woman can be charged with inducing her own abortion at any stage - unlike in England."

Rachael Clarke, Chief of staff at BPAS, agrees with the pro-life legal analysis.

"It might be the only thing we agree on," she said. "The Offences Against The Person Act 1861 was used to criminalise women but was removed from Northern Ireland by MPs in Westminster back in 2019."

In 2019 MPs also told the government that it had to produce abortion guidelines for NI which were human rights compliant - meaning the new law must not criminalise women, she added.

She too agreed that the only criminal offence that remains in relation to abortion in NI is for anyone who provides an abortion to someone else outside the regulations. "We spent a long time campaigning for this because so many women in Northern Ireland were being actively criminalised, there were cases against them in court," she added.

She said the new legislation for NI also reassured doctors and nurses who were concerned about having criminal charges brought against them.

The PSNI and the Public Prosecution Service declined to comment.

The Department of Justice appeared to affirm the analysis of the pro-life and pro-choice campaigners.

A spokeswoman said: “Under the law in Northern Ireland, a woman cannot be prosecuted under section 58 of the Offences Against the Person Act 1861. This provision was repealed by The Abortion (Northern Ireland) (No.2) Regulations 2020.”

For more information see: The Abortion (Northern Ireland) Regulations 2020 (legislation.gov.uk)