Sarah Catt, abortion and the legal rights of pregnant women

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Created on Saturday, 22 September 2012 00:00

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Sarah Catt, abortion and the legal rights of pregnant...

Before prosecuting and jailing women for abortion, we should ask whether criminalisation is ever appropriate

Elizabeth Prochaska

The case of Sarah Catt, jailed for 8 years for aborting her 38 week foetus, has prompted serious questions about the appropriateness of a lengthy jail term for a disturbed woman who poses no threat to the public. There are also concerns about the impartiality of the judge, who has links to a Christian charity which has campaigned for more conservative abortion laws. But the case raises another difficult legal question: what right does a woman have to determine the course of her own pregnancy?

The Abortion Act 1967 does not address this issue directly. It simply makes abortion lawful in certain circumstances. Outside of these criteria, abortion remains unlawful by virtue of a patchwork of crimes, including the crime for which Catt was convicted — use of poison with intent to procure a miscarriage under section 58 of the Offences Against the Person Act 1867.

As the judge commented, she might also have been prosecuted for child destruction post-28 week gestation under section 1 of the Infant Life (Preservation) Act 1929. There can be no doubt about the effect of these laws: any woman who aborts her child commits a criminal offence unless the abortion was authorised under the Abortion Act.

The criminal law stands in interesting contrast to the law on forced interventions in a woman's pregnancy. Since the decision of the court of appeal in S v St George's Healthcare Trust [1999] Fam 26, a pregnant woman's right to refuse treatment has been admirably clear. Unless she is deemed to lack capacity under the Mental Capacity Act 2005, she has complete control over every decision affecting her unborn child. She can refuse medical treatment, such as caesarean section, that would save her child's life. The appeal court in S stated:

"Although human, and protected by the law in a number of different ways … an unborn child is not a separate person from its mother. Its need for medical assistance does not prevail over her rights. She is entitled not to be forced to submit to an invasion of her body against her will, whether her own life or that of her unborn child depends on it. Her right is not reduced or diminished merely because her decision to exercise it may appear morally repugnant."

How can this be squared with criminalisation of women who carry out unauthorised abortions? There is, of course, a distinction between acts of omission and commission, but the court of appeal's twin assertions of female autonomy and the indivisibility of mother and foetus undermine the logic of the criminal law.

In the United States, the court of appeals for the ninth circuit very recently considered the prosecution of a woman for an unauthorised abortion at 21 weeks in McCormack v Hiedeman. The court found the historical purpose for regulating abortion had been to protect, rather than punish women and held that abortion laws should not be used to prosecute a woman for aborting her child.

The facts of the Catt case were extreme. But before prosecuting women for abortion and passing lengthy jail terms, we should ask whether our laws are coherent and, indeed, whether criminalisation is ever appropriate.

Source: The Guardian UK