As a British right-to-life advocate, it’s been strange to read of the recent U.S. debates over The Atlantic firing Kevin Williamson due to his past belief expressed on Twitter and podcast—since clarified—that women who have abortions should be subject to the death penalty, and the similarly excoriated view articulated—then mitigated—by Robert Nonino, the Republican candidate for lieutenant governor in Idaho.
The concept of applying capital punishment to post-abortive women is shocking. The condemnation of this view however, has extended not only to this hypothetical lethal sanction, but to the more general idea of penalties against women for contriving feticide.
Just as after last year’s remarks by presidential candidate Donald Trump on this issue, the apparently universal assumption, including by mainstream right-to-lifers, is that such criminalization would necessarily be cruel and unusual, deriving from a lack of compassion and potentially even leading to mass incarceration. From this Englishman’s experience, that is a striking non sequitur, and a gratuitous and un-nuanced judgement.
Britain (for present purposes, I feel obliged to drop the “Great”) is globally infamous for having one of the most permissive abortion regimes in the world. This is one reason why, to our shame, we are rightly characterized as the “geopolitical epicentre of the culture of death.” Less well known is that British law also allows for prosecuting women who have illegal abortions (as indeed, consequently, do the laws of former British colonies such as New Zealand, and the states of Queensland and New South Wales in Australia).
In Great Britain, Abortion Happens Under an Exception
In fact, the great irony of British abortion law is that it is predicated on abortion being a crime. “Procuring a miscarriage” is normatively illegal in England and Wales, and Northern Ireland, under section 58 of the Offences Against The Person Act 1861, a statutory consolidation of English—and at that time, Irish—criminal law which still forms part of the bedrock of our legal system.
After 28 weeks gestation, it can also be prosecuted under the crime of “Child Destruction” under the Infant Life (Preservation) Act 1929 or the Criminal Justice (Northern Ireland) Act 1945. In Scotland, abortion is illegal throughout pregnancy under Scots Law, the common law of that historic kingdom.
These provisions were largely neutered when the Abortion Act of 1967 gave exemptions from prosecution under the 1861 statute and Scottish penalties, to doctors who performed abortion on ostensibly very circumscribed conditions. In practice, this led to de facto abortion on demand, due to the appallingly normalized misapplication of “mental health” grounds under which almost 97 percent of Britain’s more than 200,000 abortions annually take place. These exemptions were extended to “Child Destruction” in 1990.
Despite the institutionalized hypocrisy of a “restrictive” law that actually gives us one of the laxest abortion laws in Europe, and indeed in the world, on rare occasions women have in fact been prosecuted and jailed in the U.K. for illegal abortions. If this shocks anyone, it is worth looking at the cases in question.
Women Prosecuted for Illegal Abortions
In 2012, a 35-year-old mother of two, Sarah Catt, was tried under section 58 for causing herself to have a miscarriage at 39 weeks, due to her belief that the father was a co-worker with whom she was having an affair. This was discovered through her failure to register the birth of her child after a hospital scan confirmed her pregnancy a few weeks earlier.
Online, she bought prostaglandins to use as abortifacients, and she gave birth to a stillborn son, whose body she buried. The judge at Catt’s trial said she “had robbed the baby of the life it was about to have.” Both he and the inspector dealing with her case noted that she had “shown no remorse.”
Three years later, a 24-year-old woman called Natalie Towers was also prosecuted under section 58 for an illegal abortion. Like Catt, she had procured heavy prostaglandins online. Ingesting them caused her to experience severe contractions. This led to her son suffocating to death before she gave birth to him in the toilet. Towers was at 32-34 weeks gestation when this took place; for context, the “upper limit” for most abortions in the U.K. is 24 weeks.
Trying to fake a natural miscarriage, Towers called emergency services, who attempted to revive the baby boy they posthumously named “Luke.” When the cause of death was found to be oxygen starvation, Towers confessed to the police what she had done. Later investigation into her web history and research on how to delete it demonstrated her malice aforethought.
While asserting that the case had “nothing to do with the general immorality or otherwise of the termination of unborn foetuses,” the judge at her trial considered her actions so serious that he directly sentenced her to two-and-a-half-years in prison.
One more case, but this time with a different outcome. In 2016, an unnamed 21-year-old Northern Irish girl was given a suspended sentence after she had procured abortifacients and miscarried her baby at 10-12 weeks. She was only found out when her two female housemates, one of whom had recently naturally miscarried, discovered the discarded body of the baby in a towel thrown in the bin.
One of the women recounted, “He had fingers, little toes. Even now I just have a picture in my mind of it. Its wee [an Ulster Scots word for ‘little’] foot was perfect. Even now I feel sick… I didn’t want to throw a baby away. I didn’t know what to do.” The other said, “You would never want to see it in your life. It was a full wee proper baby… About a week went by, the guilt of a baby in the bin was eating us up.” After being so understandably traumatized, they called the police.
The clear callousness of the mother notwithstanding, she was spared prison because by the end of her trial she had given birth again, and the judge discerned that her new child needed her. He recognized the wickedness of what she had done by finding her guilty, but exercised prudence in letting her go free.
Despite Prosecution Being Allowed, It’s Rare
In the last 50 years, these three cases are the only convictions of post-abortive women in the U.K. The other applications of our criminal penalties against abortion have been against men who have cruelly caused women to miscarry, often by brutal violence, as in the vicious cases of Kevin Wilson, Tony McLernon, and Carl Whant.
Prosecutions of women are this rare because, importantly, they take place when women have performed abortions, and not merely procured them. Only directly causing an abortion—a woman doing it on herself, or an abortionist on a woman—has ever been a crime in British law. Even then, it is only applied to self-aborting women in the most callous cases, usually in late pregnancy.
This is entirely just because it is morally serious and consistent in its treatment of the unlawful killing of human beings. By contrast, a bizarre blanket refusal to prosecute any mother who directly causes the death of her own unborn child is either naïvely sentimentalistic or cravenly political ad hoccery.
Crucially however, where there are extenuating circumstances, U.K. law also possesses the flexibility to act in an appropriately caring manner. This is why the judge in the Northern Irish case delivered practical clemency alongside legal integrity. Such a balance mirrors the wisdom of our laws against assisted suicide and euthanasia, which allow for cases where someone has been involved in either enabling or causing the death of another to be investigated thoroughly, but for people acting out of what they perceive to be “mercy” to be treated differently than someone with darker motivations.
Whilst disturbing miscarriages of justice may occur in places like El Salvador, the practical examples from English and Northern Irish jurisprudence demonstrate that applying legal penalties to women who self-abort demonstrably does not lead to mass incarceration, regular inequity, or a lack of benevolent humanity. Quite the contrary, they are rarely and prudently applied, and illustrate the possibility of maintaining the ideal balance of applying justice and compassion with judicious sagacity.
To create a false dichotomy, between locking up (if not executing!) all post-abortive women and never criminalizing women who abort their babies, is thoughtlessly simplistic. The abortion penalties in British law allow U.K. courts to prosecute that minority of women who perform abortion, not the majority who simply procure it, and give them the flexibility to adjudicate which cases involving post-abortive women deserve conviction, and which do not.
Whether commentators or legislators, Americans engaging in controversy over this issue would do well to consider whether, if it is possible for the “mother country” of Anglophone common law and ordered liberty to achieve this equitable state of affairs—even in her currently bioethically degraded state—it might not also be possible for her constitutional descendants to do likewise.